Opinion
H036512
06-27-2012
THE PEOPLE, Plaintiff and Respondent, v. RAHSAUN LAMONT HORN, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Santa Clara County Super.Ct.No. C107547)
Defendant Rahsaun Lamont Horn entered a plea of guilty to possession of marijuana for sale and driving with a suspended or revoked license. He also admitted allegations that he had been convicted previously of four violent or serious felonies, or "strikes" (i.e., two convictions of rape in concert, one count of oral copulation in concert, and one count of attempted oral copulation in concert), and of one felony for which he served a prison term. He thereafter filed a request that the court exercise its discretion to dismiss the prior strike allegations in the furtherance of justice in accordance with People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). The court denied the Romero motion and sentenced defendant to a term of 25 years to life in prison.
Defendant argues on appeal that the trial court erred in denying his Romero motion. He also argues in passing that the sentence imposed constituted cruel and unusual punishment under the Eighth Amendment to the United States Constitution. We find no abuse of discretion in the denial of the Romero motion and reject defendant's perfunctory Eighth Amendment challenge. We therefore affirm the judgment.
THE CURRENT OFFENSE
Our summary of the facts underlying the current offenses is taken from the probation report. Although defendant was convicted of multiple offenses, one felony and one misdemeanor, we are principally concerned here with the felony conviction that resulted in the increased sentence under the Three Strikes law.
On the afternoon of March 10, 2010, deputies with the Santa Clara County Sheriff's Department patrolling in the vicinity of North First Street and Old Bayshore Highway stopped a car being driven by defendant for a Vehicle Code violation. One of the deputies observed defendant reaching under the driver's seat while he was pulling over. When the deputies made contact with defendant, they smelled marijuana in the car. During a search of a backpack in the car, they found three baggies of marijuana (combined weight 20.8 grams), a digital scale, and two empty baggies. A search of defendant's cellular phone yielded text messages indicative of marijuana sales transactions. Defendant had $60 in cash "in denominations the deputies determined were consistent with the sales of marijuana."
THE PRIOR STRIKES
Our summary of the facts underlying the strike priors is taken verbatim from the section of the People's opposition to defendant's Romero motion entitled "The Defendant's Strike Priors" (emphasis omitted), which in turn was derived from the 1997 probation officer's report. Defendant did not dispute the accuracy of the People's recitation of these facts.
"On February 16, 1995, after a night of partying, the 14-year-old victim went with the defendant and two male co-defendants, Anthony Velarde and James Phifer, to a room at the Flamingo Motel in San Jose. The group sat around the room for awhile and then the victim used the bathroom. When she came out and sat down on the bed, the defendants were talking about condoms. Phifer approached the victim and ordered her [to] take off her pants. She refused. Phifer then forcibly removed the victim's pants and underwear.
"The defendant took off his clothes and approached the victim. He pushed her back onto the bed, threw her legs in the air, and pinned her arms above her head. He then sodomized the victim while Velarde and Phifer watched. After the defendant finished, Velarde and Phifer also sodomized her.
"The defendant and co-defendants then took turns vaginally raping the victim. During the sexual assaults, Phifer hit the victim in the head and the defendant hit her in the ribs.
"After all of the defendants sodomized and raped the victim, they forced her to perform oral sex on each of them, sometimes all at once and sometimes in concert with other sexual acts. When she initially refused Phifer struck her in the back with a cable television cord.
"After the sexual assaults, the defendants forced the victim to sit in a chair. Phifer then tied the cable television cord around her waist, securing her arms and body to the chair. Phifer also placed a rag in the victim's mouth. The defendant and Phifer picked up the chair and took the victim into the bathroom where they used her sweater to tie her wrists to the shower door. The defendants then left the motel room. The victim attempted to free herself, but was unsuccessful.
"The defendant and Phifer briefly returned to the room. They moved the victim into the main room, tied her up again, and then left.
"The victim successfully freed herself, grabbed her clothes and a blanket, walked to a friend's house, and called the police. All three defendants were arrested at the motel. The defendant admitted that he and the co-defendants each had sex with the victim, but claimed that she consented and she enjoyed it.
"The victim underwent a SART examination. The physical findings were consistent with anal and vaginal rape as reported by the victim."
PROCEDURAL BACKGROUND
In connection with the current offenses, defendant was charged by information filed on July 22, 2010, with possession of marijuana for sale, a felony (Health & Saf. Code, § 11359), and driving with a suspended or revoked license with knowledge at the time that his license had been suspended or revoked, a misdemeanor (Veh. Code, § 14601.1, subd. (a)). The information contained the allegation that within five years prior to the commission of the instant offense, defendant had committed and had been convicted of the offense of violating Vehicle Code section 14601.1. It was also alleged that defendant had been convicted previously of four violent or serious felonies (strikes) (Pen. Code, §§ 667, subds. (b)-(i)/1170.12), namely, two counts of forcible rape in concert (§ 264.1), forcible oral copulation in concert (§ 288a, subd. (d)), and attempted forcible oral copulation in concert (§§ 664/288a, subd. (d)). It was alleged further in the information that defendant had been convicted previously of a felony (forcible rape in concert) for which he had served a prison term, and since having served that term, had not remained free of both prison custody and the commission of an offense resulting in a felony conviction for a period of five years (§ 667.5, subd. (b)).
All further statutory references are to the Penal Code unless otherwise stated.
On September 14, 2010, defendant entered an unconditional plea of guilty to both counts and admitted all of the allegations in the information. Before accepting the plea, the court apprised defendant fully of the rights he was giving up as a result of his guilty plea and concerning the consequences of that plea. Counsel stipulated that there was a factual basis for the plea.
Defendant thereafter requested that the court exercise its discretion to strike the prior strike allegations in the interests of justice, in accordance with Romero, supra, 13 Cal.4th 497. The motion was opposed by the People. After hearing argument on January 6, 2011, the court (the Honorable Philip Pennypacker) denied the Romero motion. It imposed a prison sentence of 25 years to life for the marijuana possession for sale conviction, suspended sentence on the misdemeanor conviction, and struck the prison prior allegation. Defendant filed a timely notice of appeal based on the sentence or other matters occurring after the plea.
After the filing of the notice of appeal, defense counsel filed a request for the court to recall its sentence pursuant to section 1170, subdivision (d). Judge Pennypacker granted the request, and on September 15, 2011, he reaffirmed his denial of the Romero motion and reaffirmed the prior sentence of 25 years to life in prison.
DISCUSSION
I. Denial of Romero Motion
A. Applicable Law
The Supreme Court held in Romero that the trial court is empowered under section 1385, subdivision (a) on its own motion to dismiss or strike prior felony conviction allegations in cases that are brought under the law known as the "Three Strikes" law. (Romero, supra, 13 Cal.4th at pp. 529-530.) The court's discretion, however, is limited to instances in which dismissing such strikes is in the furtherance of justice, as determined by giving " ' "consideration both of the constitutional rights of the defendant, and the interests of society represented by the People . . . ." ' " (Id. at p. 530.) Thus, the court may not strike a sentencing allegation "solely 'to accommodate judicial convenience or because of court congestion[' citation, or] simply because a defendant pleads guilty. [Citation.] Nor would a court act properly if 'guided solely by a personal antipathy for the effect that the three strikes law would have on [a] defendant,' while ignoring 'defendant's background,' 'the nature of his present offenses,' and other 'individualized considerations.' [Citation.]" (Id. at p. 531.)
The Supreme Court later explained further "the 'concept' of 'furtherance of justice' within the meaning of Penal Code section 1385[, subdivision] (a) [which Romero had recognized as being] ' "amorphous." ' [Citation.]" (People v. Williams (1998) 17 Cal.4th 148, 159 (Williams).) The high court noted that in deciding whether to dismiss a strike "or in reviewing such a ruling, the court in question must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (Id. at p. 161.) The sentence to be meted out to the defendant "is also a relevant consideration . . . in fact, it is the overarching consideration because the underlying purpose of striking prior conviction allegations is the avoidance of unjust sentences. [Citation.]" (People v. Garcia (1999) 20 Cal.4th 490, 500.) Furthermore, the court may give "no weight whatsoever . . . to factors extrinsic to the [Three Strikes] scheme." (Williams, at p. 161.) If the court strikes or dismisses one or more prior conviction allegations, its reasons for doing so must be stated in an order entered on the minutes. (Ibid.; cf. In re Large (2007) 41 Cal.4th 538, 546, fn. 6 [trial court has no obligation to set forth reasons for decision not to strike or dismiss prior strikes].)
The granting of a Romero motion is "subject to review for abuse of discretion. This standard is deferential. [Citations.] But it is not empty. Although variously phrased in various decisions [citation], it asks in substance whether the ruling in question 'falls outside the bounds of reason' under the applicable law and the relevant facts. [Citations.]" (Williams, supra, 17 Cal.4th at p. 162; see also People v. Garcia, supra, 20 Cal.4th at p. 503.) And this abuse of discretion standard also applies to appellate review of the denial of Romero motions. (People v. Carmony (2004) 33 Cal.4th 367, 374-376 (Carmony); see also id. at p. 375: " 'Discretion is the power to make the decision, one way or the other.' ") It is the defendant's burden as the party attacking the sentencing decision to show that it was arbitrary or irrational, and, absent such showing, there is a presumption that the court " ' "acted to achieve the legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review." ' [Citations.]" (Id. at p. 377.) Further, "[i]t is not enough to show that reasonable people might disagree about whether to strike one or more of his prior convictions. Where the record demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the trial court's ruling, even if we might have ruled differently in the first instance. [Citation.]" (People v. Myers (1999) 69 Cal.App.4th 305, 310; see also People v. Zichwic (2001) 94 Cal.App.4th 944, 960.)
Placing in context the circumstances under which a court properly exercises its discretion in granting a Romero motion, as the Supreme Court has explained: "[T]he [T]hree [S]trikes law not only establishes a sentencing norm, it carefully circumscribes the trial court's power to depart from this norm and requires the court to explicitly justify its decision to do so. In doing so, the law creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper. [¶] In light of this presumption, a trial court will only abuse its discretion in failing to strike a prior felony conviction allegation in limited circumstances." (Carmony, supra, 33 Cal.4th at p. 378.) Therefore, "[b]ecause the circumstances must be 'extraordinary . . . by which a career criminal can be deemed to fall outside the spirit of the very scheme within which he squarely falls once he commits a strike as part of a long and continuous criminal record, the continuation of which the law was meant to attack' [citation], the circumstances where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme must be even more extraordinary." (Ibid.)
B. Defendant's Romero Motion
In her Romero motion, defense counsel argued that the court should exercise its discretion to strike the strike priors. She asserted that the current felony offense was "[n]ot an outrageous felony" and was neither serious nor violent; defendant had pleaded guilty to the current offense; the strike priors all arose out of a single incident when defendant was 18 years old; defendant had "maintained steady employment since his release from prison in 2007"; defendant, while incarcerated on the current offenses, had completed an "M-8 Pride" program addressing substance abuse and other issues; defendant had "ties to the community," including two daughters; and defendant had "a job awaiting his release." Defense counsel admitted that the current offense was committed while defendant was on parole, and that the prior strikes involved "outrageous acts."
Defendant was actually 19 and one-half years old when the prior strike offenses were committed.
In opposing the motion, the People argued that there were "no legitimate grounds for [defendant's Romero] request" and that the court's dismissal of any of the prior strikes would itself constitute an abuse of discretion. Concerning defendant's criminal history, the People noted that defendant was convicted of a felony, possession of cocaine, in May 1994; was on felony probation at the time he committed the four strike offenses; was sentenced to over 14 years in prison; was first paroled in October 2007; was arrested four times after that initial release from prison; had his parole revoked twice after his initial release and prior to being arrested on the current offense; and committed the current offense while on parole. In support of their position that defendant fell well within the spirit of the Three Strikes law, the People also emphasized the violent and heinous nature of the conduct underlying the prior strike convictions, and defendant's failure to accept full responsibility or express remorse for the crimes.
After hearing argument, the court denied defendant's Romero motion. Citing Williams, supra, 17 Cal.4th 148, the court noted that it was required to consider three factors in ruling on the Romero motion, namely, the current offense, the strike priors, and defendant's background, character and prospects. Judge Pennypacker made the following observations about the strike priors: "On the strike prior[s], . . . I have reviewed I don't know how many strike motions in the last seven years ranging from manslaughters to 245's that were with minor injuries. In reading through this particular set of events as both counsel have acknowledged, it's one of the most horrific the Court has had the opportunity to read[]. [¶] This is a 14-year-old victim who was subjected to gang rape. There were multiple sexual assaults. She ended up being tied up in the motel room and left and somehow was able to get freedom from that. And I understand and appreciate what [defense counsel] is saying. This was an 18-year-old brain that was different than it is today." And, noting the series of arrests and parole violations after defendant's 2007 release from prison, including the parole violation from the current offense, the court further stated: "What is baffling to the Court is the fact that—and I just can't understand this, why anybody knowing that they're a three[-]striker, a walking three[-]striker, would want to press the envelope in this manner. It shows absolute defiance of what was going on. A belief that somehow possibly rescue was around the corner from anything that befell the conduct that was being engaged in." Judge Pennypacker concluded that "[on] this particular set of facts, the Court believes that the defendant clearly qualifies for the [T]hree [S]trikes law both in the letter of the law and also in the spirit."
C. Discussion Regarding Denial of Romero Motion
Defendant argues that the court abused its discretion in denying the Romero motion. He contends that "the Three Strikes law was designed to apply to 'career criminals,' a term that does not apply to [defendant]. [Citations.]" Defendant asserts that "possessing a small amount of marijuana subsequent to the single incident of aberrant behavior was far from sufficient to show that he was a 'career criminal.' " And he emphasizes factors that he believes warranted the court's striking of the prior strikes, namely, that he had no criminal record as a juvenile; each of the four strike offenses arose out of the same incident; after 1995, "there ha[d] been no subsequent instances of violent behavior [or] any subsequent sex crimes"; his only convictions following his October 2007 release from prison were the current felony and misdemeanor convictions and two other instances of driving with a suspended license; he had "strong family contacts and [took] and completed a substance abuse course . . . prior to sentencing"; and he had been consistently employed while out of custody.
Defendant also makes the argument—one which we reject out of hand—that the court's decision not to exercise its discretion to strike the strike priors "was an expensive one, not merely for [defendant] and his family, but for the state of California itself." Regardless of the societal cost of the Three Strikes law in general or its application to this case in particular—matters we have no occasion to consider—defendant's argument raises matters extrinsic to those factors which may be properly considered in determining whether to grant a Romero motion (or in reviewing such a decision). (Williams, supra, 17 Cal.4th at p. 161.)
Defendant's claim is without merit. The court below gave careful consideration to the three Romero factors enunciated in Williams, supra, 17 Cal.4th at page 161 in reaching the conclusion that defendant did not fall outside the spirit of the Three Strikes law.
First, the court considered that the current felony offense, possession of marijuana for sale, was a nonviolent, nonserious felony. It acknowledged that under appropriate circumstances—not present in the case before it—the lack of seriousness of the current offense might have warranted the court's exercising its discretion to strike one or more of the strikes. But the court, given its consideration of other factors (see Carmony, supra, 33 Cal.4th at p. 379 [court may not consider single factor (current offense) to the exclusion of other factors]), concluded that the lack of seriousness of the current offense was not sufficient to justify granting the Romero motion. (See People v. Romero (2002) 99 Cal.App.4th 1418, 1434 [relative lack of seriousness of current crime (shoplifting) did not justify striking prior strike, in light of defendant's background and nature of prior strikes (lewd conduct with child under 14, and battery on peace officer)]; People v. Gaston (1999) 74 Cal.App.4th 310, 321 [fact that current crime (car theft) was not as serious as many felonies insufficient to warrant striking prior strikes after other factors considered].)
Under the Three Strikes law, any felony will result in a longer sentence if the defendant has at least one prior strike. (See §§ 667, subd. (c), 1170.12, subd. (a).) As explained by the Third District Court of Appeal, "[T]he nonviolent or nonthreatening nature of the [current] felony cannot alone take the crime outside the spirit of the [Three Strikes] law. [Citation.] To conclude otherwise would rewrite the statute to only trigger a longer prison sentence for those defendants who commit a violent or threatening felony after having committed at least one strike. That is not the law's letter or spirit." (People v. Strong (2001) 87 Cal.App.4th 328, 344, citing People v. Gaston, supra, 74 Cal.App.4th at p. 321.) Defendant is incorrect in his assertion that the court failed to give sufficient consideration to the claimed lack of seriousness of the current offense.
Second under Williams, supra, 17 Cal.4th at page 161, the trial court considered the nature of the prior strike offenses. Judge Pennypacker was undeniably and justifiably concerned about the extremely violent and depraved nature of the conduct—the gang rape of a 14-year-old girl—that had resulted in the four strike convictions. Regardless of whether, as defendant urged, these convictions were the result of terrible choices by an immature 19-year-old, the severity of the conduct—characterized by defense counsel as "outrageous acts"—was certainly a proper and, indeed, a necessary, consideration for the court. (See, e.g., Williams, at p. 163 [conclusion that striking of prior strikes was abuse of discretion based in part on fact that record concerning prior strikes was "devoid of mitigation"].)
Defendant further argues unpersuasively that the remoteness of the strikes and the fact that they arose out of the same incident suggest that the court abused its discretion in denying the Romero motion. It is settled that multiple prior offenses that constitute strikes may be considered as such for sentencing under the Three Strikes law, even if they arose out of the same incident. (People v. Benson (1998) 18 Cal.4th 24, 26, 30-36.) Moreover, the mere fact that a strike is remote in time is insufficient to grant a Romero motion without consideration of other factors, including but not limited to the subsequent commission of non-strike crimes. (People v. Humphrey (1997) 58 Cal.App.4th 809, 813.)
In People v. Philpot (2004) 122 Cal.App.4th 893, the court rejected arguments similar to those made here. There, the defendant asserted that the trial court had abused its discretion in denying his Romero motion because, among other reasons, "his prior strikes were remote and stemmed from a single case . . . [and] he had not been convicted of any strike offenses in the interim." (Id. at p. 906.) The court rejected the defendant's claim that the trial court had abused its discretion, concluding that the record showed that the court had considered all appropriate factors in concluding that the defendant fell within the spirit of the Three Strikes law. (Id. at pp. 906-907.)
Lastly, the court here properly considered the third Williams factor—" the particulars of [the defendant's] background, character, and prospects." (Williams, supra, 17 Cal.4th at p. 161.) Defendant argues that the lack of numerous criminal convictions over the years demonstrates that he is not the kind of career criminal targeted by the Three Strikes law. This position ignores a critical fact. From the date of the incident resulting in the prior strike convictions, February 6, 1995—which was also the date of defendant's arrest—defendant was incarcerated continuously until his initial parole in October 2007. Therefore, defendant's opportunity to reoffend during that 12 and two-thirds year period was significantly reduced. And his conduct after his initial parole, as pointed out by the People in their opposition to the motion, was hardly positive: He was arrested four times, had his parole revoked twice, was incarcerated for more than one-half the time between October 2007 and January 2010, and was on parole when he was arrested for the current offense. (See People v. Cole (2001) 88 Cal.App.4th 850, 873-874 [trial court considered the defendant's five parole violations in denying motion to strike priors]; People v. Gaston, supra, 74 Cal.App.4th at p. 321 [the defendant's unsatisfactory performance while on parole and his commission of current offense while on parole noted in appellate court's holding that court abused its discretion by striking prior strike].)
The chronology after defendant's initial parole in October 2007 consisted of his being arrested three months later in January 2008; being released from jail in April 2008; arrested on a parole violation warrant in December 2008; having his parole revoked for three months; being released from custody in March 2009; being arrested less than two months later in May 2009; having his parole again revoked and being returned to prison for eight months; paroled again in January 2010; and being arrested less than two months later for the current offense.
Here, the circumstances evaluated by the trial court—including defendant's prospects, the specifics of the current offenses, the nature of the prior strike offenses, and the evidence of his criminal record— led to its conclusion that defendant did not fall outside of the letter and spirit of the Three Strikes sentencing scheme. The record does not show that the court based its decision on any improper factors or that it failed to properly consider the factors enunciated by the Supreme Court in Williams, supra, 17 Cal.4th at page 161. (See People v. Philpot, supra, 11 Cal.App.4th at p. 906.) Simply stated, the circumstances here were not "extraordinary," and they did not warrant a finding that defendant should be " 'deemed to fall outside the spirit of the very [Three Strikes] scheme within which he squarely falls . . . .' " (Carmony, supra, 33 Cal.4th at p. 378.) In the absence of such extraordinary circumstances, we cannot say that the trial court abused its discretion by refusing to strike defendant's prior strike offenses.
II. Cruel and Unusual Punishment
Defendant argues in passing that "[a]bsent a sentence within the spirit of the Three Strikes [l]aw, sentencing a defendant to a life sentence" constitutes cruel and unusual punishment in violation of the Eight Amendment to the United States Constitution. We need not consider this one-sentence claim. (People v. Jones (1998) 17 Cal.4th 279, 304 [due process claim is presented "perfunctorily and without supporting argument, and we reject it in similar fashion"]; People v. Mayfield (1993) 5 Cal.4th 142, 196 [same].)
Because defendant's Eighth Amendment argument is undeveloped, we need not address whether it is even cognizable on appeal, given that defendant did not obtain a certificate of probable cause and a sentence of at least 25 years to life was contemplated as the possible maximum sentence when defendant pleaded guilty. (See People v. Rushing (2008) 168 Cal.App.4th 354, 361-362 [dismissing appeal without certificate of probable cause, where defendant claimed sentence constituted cruel and unusual punishment, because it constituted challenge to maximum allowable term agreed to after plea bargain].) In any event, even were it developed and cognizable, defendant's constitutional claim lacks merit, since we have held that the court properly concluded that defendant, in fact, did fall within the spirit of the Three Strikes law.
DISPOSITION
The judgment is affirmed.
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Retired Associate Justice of the Court of Appeal, Sixth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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Rushing, P.J.
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Premo, J.