Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. GA074724, Teri Schwartz, Judge. Affirmed.
Lenore De Vita, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec and Lance E. Winters, Deputy Attorneys General, for Plaintiff and Respondent.
KLEIN, P. J.
Kantee Wreh Jacobs appeals the judgment entered following his conviction by jury of first degree burglary. (Pen. Code, § 459.) The jury found Jacobs had two prior convictions within the meaning of the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and one prior conviction within the meaning of section 667, subdivision (a)(1). The trial court sentenced Jacobs to a term of 30 years to life in state prison.
Subsequent unspecified statutory references are to the Penal Code.
Jacobs contends a tape-recorded statement he made to a police officer was admitted into evidence in violation of Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694], and the trial court abused its discretion in refusing to strike his prior convictions. We reject these contentions and affirm the judgment.
FACTS AND PROCEDURAL BACKGROUND
1. The underlying offense.
On September 30, 2008, at approximately 11:00 p.m., Jaime Avila looked out the window of his condominium on Rosewalk Way in Pasadena and saw Jacobs standing inside the area associated exclusively with a condominium occupied by his neighbor, Christina Zelinski. Jacobs was “peeking in and looking at [Zelinski] who [was] sitting [at] the dining room table on the other side of the window.” Neither Avila nor his wife had ever seen Jacobs in the gated condominium complex. Avila obtained a pistol, which he holstered behind his back, and a camera. He instructed his wife to call 911 and went outside to photograph Jacobs.
Avila attempted to take two photographs, which alerted Jacobs to Avila’s presence. Avila then began to question Jacobs and asked where he lived. Jacobs, who was holding a small cardboard box, stepped out of Zelinski’s yard, apologized and said he would leave. However, Jacobs returned to Zelinski’s yard and began to put the screen on Zelinski’s dining room window. Avila again tried to take a photograph of Jacobs and succeeded as Jacobs began walking toward Avila. In the photograph, which was shown to the jury, the cardboard box is on a window sill in a garage area. Jacobs charged Avila and pushed him. Avila back pedaled but tripped and fell. Jacobs landed forcefully on Avila and attempted to grab the camera, which had fallen a few feet from them. Avila pushed himself to a standing position and drew his pistol. Jacobs remarked on the weapon and then ran from the area. Avila suffered scratches to his knee, elbow and wrist during the struggle with Jacobs.
Zelinski, who had gone upstairs, heard a commotion at the gate to her property. She went downstairs and noticed her dining room window was “wide open.” Zelinski closed the window and went upstairs.
Avila pursued Jacobs on foot toward the main gate of the complex. At that point, Avila noticed a patrol vehicle on the other side of the gate.
Pasadena Police Officers Anthony Russo and Alex Torres arrived at the condominium complex at 11:15 p.m. As they waited at the gate, Russo saw Jacobs running inside the complex carrying a small cardboard box “like a football.” Russo left the patrol vehicle and ran toward the corner of Lincoln Avenue. At the corner, Jacobs jumped over a fence and onto the sidewalk. Jacobs ignored commands to stop.
Torres followed in the patrol car and then chased Jacobs on foot. Torres saw Jacobs throw the cardboard box over a wall. Jacobs tried to jump over the wall but Torres grabbed Jacobs’s clothing and prevented him from going over the wall. When Torres released Jacobs’s clothing, Torres fell, drew his weapon and ordered Jacobs to the ground. Russo looked over the wall and saw Jacobs in the backyard of a condominium. Jacobs was taken into custody. He had jewelry, watches and an envelope addressed to Ivan Svetlana, a resident of the condominium complex. The envelope contained a credit card issued to Svetlana. Russo examined Svetlana’s mailbox and found it had pry marks. Svetlana was not aware the card was missing.
Torres retrieved the cardboard box and returned it to Zelinski. Zelinski had not noticed the box was missing when she closed the window. The box contained jewelry Zelinski intended to send to a relative.
2. Jacobs’s tape-recorded statement.
Police Corporal Aleandro Peinado transported Jacobs to the police station where he tape recorded an interview with Jacobs. After Peinado advised Jacobs of his rights under Miranda v. Arizona, supra, 384 U.S. 436, Jacobs stated he had been out “snooping.” Jacobs pulled Zelinski’s window screen out, reached into the open window and grabbed the cardboard box from the dining room table. When Avila began to photograph Jacobs, Jacobs put the screen on Zelinski’s window. Avila told Jacobs to apologize to Zelinski, but Jacobs refused. Jacobs tried to leave but Avila blocked his way. Jacobs grabbed Avila and threw him. When Avila produced a handgun, Jacobs ran. Jacob said he found the credit card on a walkway in the condominium complex a few days earlier. Jacobs’s statement was played for the jury.
3. Verdicts and sentencing.
The jury found Jacobs guilty of first degree burglary of Zelinski’s residence but not guilty of attempted robbery of Avila. The jury failed to reach a verdict on count three which alleged receiving stolen property. The jury thereafter found Jacobs had two prior convictions of first degree burglary, both in case No. BA246162.
The trial court sentenced Jacobs to a third strike term of 25 years to life, plus 5 years under section 667, subdivision (a)(1).
CONTENTIONS
Jacobs contends the trial court erroneously admitted his recorded statement into evidence in violation of Miranda v. Arizona, and abused its discretion in refusing to strike his prior convictions.
DISCUSSION
1. Jacobs’s statement properly admitted.
a. Additional background.
With respect to the Miranda warnings Officer Peinado gave Jacobs, the record shows Peinado advised Jacobs of the right to remain silent, that anything Jacobs said would be used against him in court, that Jacobs had the right to an attorney before questioning and, if Jacobs could not afford an attorney, one would be appointed for him. After Jacobs indicated he understood these rights, Peinado asked Jacobs what happened and Jacobs made the statement presented at trial.
In the trial court, Jacobs objected to admission of the statement on the ground Peinado had not asked him, as in the usual Miranda admonition, “Having these rights in mind, do you wish to speak to me without an attorney present?” Jacobs argued the Pasadena Police Department routinely omits this question and asked the trial court to “put a stop to it.” The trial court found Jacobs had been advised of each of his Miranda rights, he was asked if he understood each and he responded that he did. The trial court found Jacobs “was properly advised of his rights and did, in fact, ... waive his rights by speaking to the officer and not asserting any right that he was advised of and he clearly understood.”
b. Jacobs’s contention.
On appeal, Jacobs does not revisit the claim he raised in the trial court. Rather, he contends the Miranda advisement was defective because Peinado advised Jacobs of the right to counsel before questioning began but did not advise him the right to counsel continues during questioning. (See Miranda v. Arizona, supra, 384 U.S. at p. 473.) Jacobs relies on two Ninth Circuit cases, United States v. Noti (9th Cir. 1984) 731 F.2d 610, 614 and United States v. Bland (9th Cir. 1990) 908 F.2d 471, both of which held factually similar advisements were constitutionally defective.
c. Resolution.
The California Supreme Court addressed the issue raised by Jacobs in People v. Wash (1993) 6 Cal.4th 215. In Wash the interrogating officer advised the accused of “ ‘the right to have an attorney present before any questioning if you wish one, [and] if... you cannot afford... an attorney one will be provided to you at no cost before any questioning begins....’ ” (Id. at p. 236.) Wash held: “Although the warning given to defendant here deviated from the standard form in failing to expressly state that defendant had the right to counsel both before and during questioning, we are not persuaded – as defendant’s argument implies – the language was so ambiguous or confusing as to lead defendant to believe that counsel would be provided before questioning, and then summarily removed once questioning began. [Citation.] As the [United States Supreme Court] has observed, the Miranda warnings are ‘prophylactic’ [citation] and need not be presented in any particular formulation or ‘talismanic incantation.’ [Citation.] The essential inquiry is simply whether the warnings reasonably ‘ “[c]onvey to [a suspect] his rights as required by Miranda.” ’ [Citation.] We are satisfied that the warnings given defendant here ‘reasonably conveyed’ his right to have an attorney present during questioning.” (Id. at pp. 236-237; see also People v. Valdivia (1986) 180 Cal.App.3d 657, 663-664.)
The Ninth Circuit decisions cited by Jacobs are not binding on state courts, even on federal questions. (People v. Crittenden (1994) 9 Cal.4th 83, 120, fn. 3.) However, state courts are bound by state high court authority. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Because we are bound to follow Wash, Jacobs’s claim, which relies exclusively on lower federal courts decisions, fails.
In any event, any error in admitting the statement was harmless beyond a reasonable doubt. Avila saw Jacobs in Zelinski’s yard looking into Zelinski’s window. When Avila confronted Jacobs, he was holding the cardboard box that had been on Zelinski’s dining room table. Avila confronted Jacobs, took his picture and then followed Jacobs from the scene until police officers arrived and chased Jacobs. Officer Torres saw Jacobs discard the box and Zelinski identified the box as hers. Thus, even had Jacobs’s statement to Peinado been excluded, Jacobs would have been convicted of burglarizing Zelinski’s home.
In sum, Jacobs’s claim of error in the admission of his statement to Peinado fails. We therefore need not address whether Jacobs forfeited the point by failing to raise it in the trial court or the further assertion defense counsel rendered ineffective assistance in failing to raise the issue below.
2. Denial of motion to strike prior convictions not an abuse of discretion.
a. Background.
The report of the probation officer indicates Jacobs, 32 years of age, had a criminal history consisting of a misdemeanor conviction of theft in 1994 and a conviction of felony burglary in 1996 for which he initially was granted probation with 120 days in jail. Also in 1996, Jacobs was convicted of disturbing the peace. In 1998, Jacob was convicted of attempted grand theft and was sentenced to 16 months in state prison. In 1999, Jacobs was convicted of rioting (§ 404, subd. (a)), a misdemeanor, and was granted three years probation with 60 days in jail. In January of 2000, Jacobs was institutionalized at the California State Mental Hospital under section 1370.1 (developmentally disabled) and was discharged in April of that year. In October of 2000, January of 2001 and September of 2002, Jacobs was found in violation of parole and was returned to the Department of Corrections and Rehabilitation. In 2004, Jacobs was convicted of taking a vehicle without the owner’s consent and two counts of first degree burglary and was sentenced to five years in state prison. On February 5, 2008, Jacobs was paroled and on September 30, 2008, he committed the instant offense.
The report of the probation officer noted Jacobs was on parole and was being supervised at the time of the current offense. Jacobs’s parole officer stated Jacobs was “just not doing well on parole.” The parole officer indicated Jacobs claims he “gets into trouble... because of a mental problem.” However, Jacobs has no psychiatric diagnosis.
Defense counsel filed a written motion asking the trial court to exercise its discretion to dismiss Jacobs’s prior convictions for the purpose of sentencing under People v. Superior Court(Romero) (1996) 13 Cal.4th 497. The written motion noted both of the alleged prior convictions arose from a single case in which Jacobs had been convicted based on his guilty plea. Defense counsel asserted the current offense technically was a burglary but it lacked the traditional danger associated with that offense because Jacobs waited until Zelinski left the dining room to commit the offense.
The motion noted the trial court was aware of Jacobs’s mental health issues, as Jacobs twice was referred for evaluation under section 1369 to determine his competence to stand trial on the current charge. On each referral, Jacobs was found to be competent. Further, Jacobs was confined in the state hospital in 2000 on a diagnosis of developmental disability. Defense counsel thereafter received medical records from Jacobs’s mother that indicated Jacobs also had been committed to a mental health facility in Los Angeles.
A supplemental clerk’s transcript contains letters from Sanjay Sahgal, M.D. dated March 1 and April 6, 2009, regarding Jacobs’s competence to stand trial. Sahgal states that on February 27 and April 6, 2009, Sahgal attempted to interview Jacobs but Jacobs politely refused to discuss his case and indicated he did not need a psychiatric evaluation. Sahgal concluded Jacobs was mentally competent to stand trial. “He was calm and alert. He was well groomed and neatly attired in his jail uniform. His speech was clear and fluid. He didn’t appear to be depressed, anxious, manic, or excessively fearful.” Sahgal noted Jacobs was being housed in the general population and appeared to be in no acute distress. Absent any additional clinical data, Sahgal concluded Jacobs “should be considered mentally competent to stand trial.”
The motion noted that, during the interview conducted by Peinado, Jacobs claimed he struggled with a compulsion to steal despite having a job and no need for the items taken. The motion concluded Jacobs was an individual unable to prevent himself from stealing due to mental illness which could be treated outside the state prison system.
In opposition to the motion to strike, the People noted the first prior conviction alleged as a strike in this case occurred when Jacobs stole a vehicle from a residential garage in Pasadena and the second occurred later that night when Jacobs was apprehended committing a residential burglary in Los Angeles. The People asserted Jacobs’s prior convictions were recent and similar to the current offense in that Jacobs entered homes in the night while people were present.
At the sentencing hearing, defense counsel asserted the burglary conviction did not involve “terror in the night” because Zelinski was upstairs when the taking occurred. Defense counsel argued Jacobs would not have confronted Zelinski and never entered her home. Defense counsel also claimed Jacobs had a mental illness and requested a psychiatric evaluation, asserting Jacobs would “talk to the doctor on this occasion.” The trial court noted Jacobs refused to speak to a doctor on two prior occasions and refused the request for an evaluation, indicating it saw “no point” in continuing the case further.
Regarding the merits, the trial court noted Jacobs committed a residential burglary with a person present in the home. The trial court indicated it had reviewed Jacobs’s “file in the [previous] case” and “the C.D.C. report and there wasn’t much in there that would give this court a reason under [section] 1385 to strike a [prior].” The trial court noted Jacobs was on parole when he committed the current offense and he had numerous violations of parole. The trial court acknowledged Jacobs “does suffer from some mental illness” but it had played no role in the current offense.
The trial court found Jacobs’s use of force against Avila troubling and rendered the case “a bit more serious than... [defense counsel was] portraying it.” The trial court indicated it had “look[ed] at the entire history of Mr. Jacobs and his background.” The trial court noted Jacobs had a lengthy criminal history with numerous theft offenses and he has been to prison “a couple of times before.” The trial court doubted Jacobs would be able to control his behavior “when it comes to stealing.” The trial court concluded this was not a case in which the interests of justice would be served by striking a strike. The trial court reiterated its findings, indicated the current case “involve[d] the use of force” and concluded “a third strike sentence is the appropriate sentence in this case.”
b. Jacobs’s contention.
Jacobs contends the case must be remanded for resentencing because the trial court failed to acknowledge, in exercising its discretion, that both of Jacobs’s prior convictions of first degree burglary arose out of the same case, BA246161, and that these convictions also formed the basis for the five-year enhancement imposed under section 667, subdivision (a)(1). Jacobs asserts People v. Scott (2009) 179 Cal.App.4th 920, 923, held a trial court must consider the proximity of prior convictions as a relevant circumstance when conducting a Romero analysis. Here, although the trial court indicated it had read the probation report and the moving papers, under Scott, the trial court was required to examine the proximity of the two prior strike convictions but it failed to do so. (See People v. Burgos (2004) 117 Cal.App.4th 1209, 1216-1217; People v. Benson (1998) 18 Cal.4th 24, 36, fn. 8.)
Jacobs concludes the denial of his Romero motion without considering the closeness of the two prior convictions constituted an abuse of discretion resulting in a violation of his right to due process of law and a violation of the guarantee against cruel and unusual punishment.
c. Resolution.
In People v. Williams (1998) 17 Cal.4th 148, the California Supreme Court instructed that “in ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law, on its own motion, ‘in furtherance of justice’ pursuant to Penal Code section 1385(a)... 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.)
We review a trial court’s determination not to dismiss a prior strike conviction pursuant to People v. Superior Court (Romero), supra, 13 Cal.4th 497, under an abuse of discretion standard. (People v. Williams, supra, 17 Cal.4th at p. 162.) However, there is a strong presumption that a sentence conforming to the normal application of the Three Strikes law is rational and proper. (People v. Carmony (2004) 33 Cal.4th 367, 378.) Only in limited circumstances will a trial court’s failure to dismiss a prior strike allegation constitute an abuse of discretion. (Id. at p. 378.) A defendant has the burden of clearly showing that the sentencing decision was irrational or arbitrary. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.)
Here, the record shows the trial court considered the “particulars of [Jacobs’s] background, character, and prospects” (People v. Williams, supra, 17 Cal.4th at p. 161), including the evidence presented by Jacobs in support of his Romero motion. The trial court made note of Jacobs’s long criminal history and several failed attempts at parole and probation. The record affirmatively demonstrates the trial court understood its authority to strike one or more prior serious felony conviction allegations and weighed all of the competing factors. After evaluating all of the available information, the trial court declined to exercise its discretion to strike one or more of the prior convictions. In view of these facts and circumstances, Jacobs has failed to show an abuse of discretion.
Regarding the assertion the trial court failed to consider the proximity of Jacobs’s two prior strike convictions or the fact that they arose from the same case, the record indicates the trial court reviewed the report of the probation officer, Jacobs’s motion to strike and the People’s opposition thereto, all of which indicated the prior convictions arose from a single prior case. Further, although the trial court did not specifically mention that both of Jacobs prior convictions arose from a single prior case, the trial court “is presumed to have considered all of the relevant factors in the absence of an affirmative record to the contrary.” (People v. Myers (1999) 69 Cal.App.4th 305, 310.)
In any event, the cases cited by Jacobs are not on point. In Scott, the defendant’s two prior convictions consisted of robbery and carjacking arising out of the same facts such that, upon sentencing for these prior convictions, the term imposed for robbery was stayed under section 654. Even in that setting, Scott held the trial court was not required to strike one of the prior convictions. “All [the defendant] was entitled to was consideration by the trial court of the closeness of the two strikes in determining whether, in the exercise of discretion, one should be stricken.” (People v. Scott, supra, 179 Cal.App.4th at p. 931.)
Similarly, in People v. Burgos, supra, 117 Cal.App.4th 1209, the defendant had prior convictions of attempted robbery and attempted carjacking arising from the “same act.” (Id. at pp. 1211-1212 & fn. 3.) People v. Benson, supra, 18 Cal.4th 24, the other case cited by Jacobs, held a prior conviction qualifies as strike even if the sentence for the prior conviction was stayed under section 654. (People v. Benson, supra, at p. 35.) In a footnote, Benson declined to address “whether there are some circumstances in which two prior felony convictions are so closely connected – for example, when multiple convictions arise out of a single act by the defendant as distinguished from multiple acts committed in an indivisible course of conduct – that a trial court would abuse its discretion under section 1385 if it failed to strike one of the priors.” (Id.at p. 36, fn. 8.)
Here, Jacobs’s two prior convictions did not arise from the same act. Rather, Jacobs committed one residential burglary in Pasadena and, later that same night, committed a second residential burglary in Los Angeles. Thus, Jacobs’s reliance on Scott, Burgos and Benson is misplaced.
Finally, with respect to Jacobs’s claim the term imposed by the trial court constitutes cruel and unusual punishment, Jacobs makes only a perfunctory assertion and he presents no argument or authority regarding this claim. We therefore decline to address the issue. (See People v. Stanley (1995) 10 Cal.4th 764, 793 [point not developed is forfeited]; People v. Gionis (1995) 9 Cal.4th 1196, 1214, fn. 11 [same].)
DISPOSITION
The judgment is affirmed.
We concur: KITCHING, J.ALDRICH, J.