Opinion
B290952
07-30-2020
THE PEOPLE, Plaintiff and Respondent, v. MARLON NIBLETT, Defendant and Appellant.
Susan Wolk, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Noah P. Hill and David A. Voet, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. YA023994) APPEAL from an order of the Superior Court of Los Angeles County, William C. Ryan, Judge. Affirmed. Susan Wolk, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Noah P. Hill and David A. Voet, Deputy Attorneys General, for Plaintiff and Respondent.
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In 1996, the jury found defendant and appellant Marlon Niblett guilty of inflicting corporal injury on the mother of his child. (Pen. Code, § 273.5, subd. (a).) Niblett admitted two prior strike conviction allegations and was sentenced to an indeterminate term of 25 years to life under the three strikes law. (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d).) He was subsequently convicted of attempted escape and sentenced to a consecutive term of 25 years to life. In a consolidated appeal, this court affirmed Niblett's convictions and sentence in an unpublished opinion filed December 18, 1996. (People v. Niblett (Dec. 18, 1996, B099954, B100675).)
All further statutory references are to the Penal Code unless otherwise indicated.
In 2012, the voters enacted The Three Strikes Reform Act (Proposition 36), which established a procedure that allows an inmate sentenced to an indeterminate term under the three strikes law to petition the trial court for resentencing if the current offense is not a serious or violent felony. (§ 1170.126.) Niblett filed a consolidated petition seeking resentencing, which the superior court denied because, with respect to the section 273.5, subdivision (a) conviction, Niblett was (1) armed with a deadly weapon and (2) intended to cause great bodily injury to another person. He was therefore ineligible for resentencing pursuant to sections 667, subdivision (e)(2)(C)(iii) and 1170.12, subdivision (c)(2)(C)(iii).
It is undisputed that section 273.5, subdivision (a) is not a "serious" or "violent" felony within the meaning of section 1192.7, subdivision (c) or section 667.5, subdivision (e), and no longer constitutes a strike.
Niblett appeals the denial of his section 1170.126 petition. He contends the trial court erred as to both findings. He further contends that his sentence constitutes cruel and unusual punishment in violation of the Eighth Amendment.
We conclude that substantial evidence supports the trial court's finding that Niblett intended to cause great bodily injury, and that his contention regarding cruel and unusual punishment is not cognizable and, in any event, has no merit. We affirm the trial court's order.
Because we affirm the trial court's order on this basis, we need not reach the issue of whether Niblett was armed with a deadly weapon.
FACTS AND PROCEDURAL HISTORY
Trial
Prosecution
The victim testified that she and Niblett dated and lived together for approximately four years, and that they had a child together. She moved out of their shared apartment with their one-year-old daughter about six months before Niblett committed the charged offense. The victim and the child stayed with the victim's mother. Niblett and the victim maintained a friendly relationship and dated occasionally. He was welcome at the home where the victim stayed, and there was never a problem when he visited the baby. Although Niblett was upset about the break-up with the victim, he never acted violently.
On May 1, 1995, at about 3:00 p.m., Niblett came to the victim's mother's house, banged on the door, and demanded to be let inside. The victim opened the front door, but left the barred security door locked. Niblett said he wanted to see his daughter. The victim told him that his daughter was not there and told him to go home. She said she had to be back at work at 4:30 p.m. Niblett continued to bang on the door.
Niblett then walked over to the victim's car and used an anti-theft club to break the window. After he broke the window, he threw the club to the ground and returned to the front door of the home. He again demanded that the victim let him inside and banged on the door, but she refused to let him inside. Niblett disappeared. The victim then heard the sounds of a window screen being removed in the back of the house and of a window being opened. Niblett appeared in the front hallway where the victim was standing and asked her "what [she] was going to do now."
The victim tried to escape through the front door. She was able to unlock the security gate, but she did not have time to open the door. Niblett grabbed her, dragged her into the living room, and threw her to the floor. She screamed and asked what he was doing. Niblett did not respond. He sat on top of the victim and hit her in the face with his fist several times. She cried and screamed for help. Niblett picked her up by her sweatshirt and threw her onto a couch on the other side of the room. Niblett continued to pummel the victim with his fists. He also choked her by putting both of his hands on the front and slightly around her neck and applying pressure, and beat her face with a wooden hair brush repeatedly. He then picked up a trophy with a marble base and beat her leg with the base several times. At some point, the top of the trophy broke off of the base. The victim kept screaming for Niblett to stop, but he did not respond and continued hitting her with the base. At that point, Los Angeles County sheriff's deputies entered the house with guns drawn and ordered Niblett to freeze. He dropped the trophy base, and the victim escaped into the hallway.
The victim was treated by paramedics at the scene and then taken to a hospital emergency room, where she remained for four hours. She later visited another medical facility for a follow-up treatment.
The victim sustained a fracture and permanent scarring on her nose. The entire right side of her face was swollen, including her eye. She also had bruises on her leg where Niblett hit her with the trophy base. She did not return to work for two weeks.
The victim testified that Niblett's actions were out of character for him, but that he did not appear to be different than usual. She could not tell if he was intoxicated. She did not smell alcohol on him and had never seen him drink in the past.
Los Angeles County Sheriff's Deputy Robert Moran and his partner, Deputy Larkin, responded to the scene after a neighbor called 911. When they approached the house they heard a commotion and a woman's bloodcurdling scream. Deputy Moran ran to the door because he believed the woman was in immediate danger. The victim was standing on the couch with her back against the wall, cowering away from Niblett. She was screaming and crying hysterically. Niblett was facing the victim. He was poised with the trophy cocked back behind his head.
Deputy Moran drew his gun and pointed it at Niblett and ordered him twice to drop the trophy base. Niblett complied and fell flat on his chest on the floor. The deputy observed that the victim's eye, upper lip, and nose were swollen. She had blood all over her face, and there was blood smeared on the wall above the couch. He placed Niblett under arrest.
The upper segment of the trophy was later recovered from the room.
Deputy Moran did not detect alcohol on Niblett's breath when he arrested him. The deputy was trained to recognize the use of controlled substances, including Phencyclidine (PCP). In the deputy's experience, people under the influence of PCP smell of ether, and display muscle rigidity, such as a blank stare. The deputy had encountered approximately 50 people under the influence of PCP, and about 100 people under the influence of cocaine in the course of his duties. Niblett did not appear to be under the influence of any type of drug. He was coherent when the deputy asked him questions during booking, just after the arrest. The deputy opined that people under the influence of PCP become agitated and combative easily. Niblett was cooperative.
Defense
Niblett testified that "[i]t was never no breakup situation." The victim would "get mad when it was time to pay rent or things of that nature, and she would go home because she wanted to be still young. She was still young in her mind."
Niblett smoked two "sherm" cigarettes the day before he attacked the victim. He explained that sherms are cigarettes dipped in PCP. Sherms "make the mind run" two or three times faster than it would under normal circumstances.
Niblett went to the victim's house because voices caused by the PCP ingestion were telling him that she was "beating up on" his daughter. When he arrived, he asked the victim "'what's up, let me in.'" The victim refused to let him in, and they started to argue and swear at each other. She had always let him in before. They discussed their daughter "for a few seconds." They began arguing quickly because he was surprised by the victim's attitude. "Anybody would let [him] in that ever lived in that house."
Niblett did not bang on the door. He has respect for other people's property and would not do that. He tried the door knob, but it was locked, so he walked over to the victim's car. He took the club and broke out one of the car windows to "make her mad, plus make her spend some of the money that she wasn't giving [him]." He explained that the victim left when it was time to pay the bills. When bills were due she always found a reason to leave. Her refusal to pay the bills "was pretty much most of the problem." He was still feeling the effects of the PCP at the time of the attack. He believed "[t]hat was the control."
Niblett did not enter the house through the window. After she saw him break the car window, the victim unlocked the front door so that they could talk. Once he got inside, "[i]t was like she wanted to fight." He slapped her face a few times and she fell to the floor crying. "The situation got wild," and they "wrestled to the couch." They fought off and on for over 10 minutes, talking in between. He did not hit the victim with a hairbrush. Niblett picked up the trophy because he thought the victim had a weapon. He did not pick it up "to hit her across the head or anything like that. It was just to like get her attention." He was standing in the middle of the living room when the deputies entered. He had not been holding the trophy for about five or six minutes when they arrived. He did not think that the deputies even saw the trophy.
On the day that he attacked the victim, Niblett drove to a hospital parking lot in his tow truck and towed a car with a flat tire to his car repair shop. He fixed the tire at the shop, then drove the tow truck to his house, dropped it off, and drove another car to his mother's house. He then returned home and called the victim before driving to her mother's house, which was approximately 25 minutes away. The voices that he heard did not prevent him from running errands that morning and did not affect his memory of how he spent the day. The voices were how it all started, "[b]ut once [he] got there and [he and the victim] started going on [their] situation, it was a whole 'nother thing. It was things took its course." Section 1170.126 Petition
On July 3, 2013, Niblett filed a consolidated petition for resentencing. He argued that, following Proposition 36, inflicting corporal injury on the mother of one's child no longer qualified as a strike, such that he should be resentenced as a second strike offender rather than as a third strike offender. The People opposed the petition.
In a hearing on March 6, 2017, the trial court informed the parties of its tentative ruling to find Niblett ineligible for relief because he intended to cause great bodily injury in the commission of the offense in the corporal injury case.
Defense counsel argued that the People had the opportunity to prove at trial that Niblett intended to cause great bodily injury, but "[t]hey purposely passed, in order to prevent an expert from coming and testifying about the ingestion of PCP. They put on the record that we're only here to do this general intent crime. We are not here on the specific intent to commit great bodily injury." "The prosecution is asking this court to base its decision on the intention[al] infliction of great bodily injury, intent to inflict great bodily injury on mere supposition. The man was under the influence of PCP. He never got his day in court on that because the prosecution did not want him to have his day in court on that." "The prosecution wanted to preclude the jury from making such a finding."
Defense counsel further asserted that the way in which Niblett hit the victim with the trophy—using only the top portion to hit her legs—demonstrated that there was not an intent to cause great bodily injury and that he was not armed with a deadly weapon.
The prosecution responded that defense counsel was misrepresenting the record with respect to the trophy—Niblett had hit the victim with the hard marble base, not the upper portion that broke off. With respect to Niblett's PCP ingestion, the officer testified as an expert that Niblett did not display signs of intoxication. There was no great bodily injury allegation in the case. The standard for a Proposition 36 case is preponderance of the evidence, and the prosecution presented substantial evidence that Niblett intended to inflict great bodily injury. The evidence demonstrated that Niblett was angry that the victim did not let him into the house, broke a car window, entered the house by removing a window screen, and then became increasingly violent—throwing the victim to the floor, choking her, hitting her in the face, and using a hairbrush and a marble trophy base to beat her. When the officers entered, they had their guns drawn, because they believed that level of force was necessary. The victim had permanent scarring, and her face was swollen and covered with blood. Photographs taken several weeks later still showed swelling. Niblett intended to commit, and did commit, great bodily injury. The marble trophy base was used as a deadly weapon.
Defense counsel reiterated that Niblett was only tried for "spousal abuse," which was no longer a strike due to the passage of Proposition 36.
In a written memorandum of decision on March 16, 2017, the trial court ruled that Niblett was ineligible for resentencing because it found that he intended to cause great bodily injury and was armed with a deadly weapon by a preponderance of the evidence.
The trial court considered Niblett's testimony that he ingested PCP the day before the attack, but credited Deputy Moran's testimony that he did not appear to be under the influence of drugs. The court rejected Niblett's argument that his ingestion of PCP negated his intent to cause great bodily injury because his argument that PCP caused him to act uncharacteristically was raised at trial and rejected by the jury. The evidence showed that Niblett broke the victim's car window after he was refused entrance, jumped a fence and broke into the house through a window, threw the victim to the floor, hit her in the face, threw her on the couch, choked her, hit her in the face with a hairbrush, and beat her with the trophy base. He had the trophy cocked back over his head above the cowering victim when the deputies entered, which caused them to draw their weapons. People are presumed to intend their voluntary, willful actions, and also presumed to intend the natural and probable consequences of their actions. The court found that Niblett intended to cause great bodily injury by a preponderance of the evidence, and that Niblett was not so intoxicated that he was unable to form such intent.
The trial court further concluded that Niblett used the trophy base in a manner capable of producing and likely to produce great bodily injury or death. He had become increasingly violent. When the deputies entered he was poised to strike again and the victim was cowering away from him. A preponderance of the evidence demonstrated that the trophy base could be used, and was likely to be used, to inflict great bodily injury or death.
In June 2018, the court reconsidered its decision following our Supreme Court's decision in People v. Frierson (2017) 4 Cal.5th 225, in which the standard for section 1170.126 eligibility was held to be beyond a reasonable doubt rather than by a preponderance of the evidence. The court ruled that Niblett was ineligible beyond a reasonable doubt for the reasons previously articulated.
DISCUSSION
Recall and Resentencing Under Proposition 36
Proposition 36 changed the requirements for sentencing a third strike offender to an indeterminate life term under the three strikes law. Among other things, Proposition 36 "'created a postconviction release proceeding whereby a prisoner who is serving an indeterminate life sentence imposed pursuant to the three strikes law for a crime that is not a serious or violent felony and who is not disqualified, may have his or her sentence recalled and be sentenced as a second strike offender unless the court determines that resentencing would pose an unreasonable risk of danger to public safety.' [Citation.]" (People v. Guilford (2014) 228 Cal.App.4th 651, 655 (Guilford).)
As relevant here, section 1170.26 "direct[s] trial courts to find ineligible those persons who '[d]uring the commission of the current offense, . . . used a firearm, [were] armed with a firearm or deadly weapon, or intended to cause great bodily injury to another person.' (§§ 667, subd. (e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii).)" (Guilford, supra, 228 Cal.App.4th at p. 658.)
Proposition 36 "requires pleading and proof when ineligibility for lenient treatment . . . applies prospectively, [but] . . . [n]o pleading and proof language appears in the [provision] addressing relief to persons previously sentenced under the three strikes law . . . ." (Guilford, supra, 228 Cal.App.4th at p. 656.) "Instead, section 1170.126, subdivision (f) provides that, 'Upon receiving a petition for recall of sentence under this section, the court shall determine whether the petitioner satisfies the criteria in subdivision (e).' (Italics added.) There is no provision for the People to plead or prove anything, the burden falls on the trial court to make the determination whether a defendant meets the prima facie criteria for recall of sentence." (Id. at p. 657, fn. omitted.) "If the trial court finds those criteria are satisfied there is then a hearing at which the parties may address whether a defendant would pose an unreasonable risk to public safety, and if not, what the new sentence should be." (Id. at p. 657, fn. 3.)
"Although some persons may have had . . . disqualifying factors plead and proved . . . , in most cases such factors would not have been adjudicated." (Guilford, supra, 228 Cal.App.4th at p. 658.) "[A] trial court may look to the whole record of a prior conviction to determine whether the facts meet the definition of a strike . . . ." (Guilford, supra, 228 Cal.App.4th at p. 660.)
"[W]e review the factual basis of the trial court's finding under the familiar sufficiency of the evidence standard. 'We review the whole record in a light most favorable to the [order] to determine whether it contains substantial evidence, i.e., evidence that is credible and of solid value, from which a rational trier of fact could find beyond a reasonable doubt that the accused committed the offense.' [Citations.]" (Guilford, supra, 228 Cal.App.4th at p. 661.)
Intent to Cause Great Bodily Injury
Niblett contends that the trial court erred in denying his petition for resentencing. Although he concedes that section 1170.126 contains no pleading and proof requirement, he argues that the evidence presented at his trial in 1995 and 1996 was insufficient to support the trial court's finding, in 2018, that Niblett formed the specific intent to cause great bodily injury to the victim. In particular, Niblett argues that the court's finding of intent was baseless because the issue of specific intent was not before the jury at trial, and because he was prevented during trial from presenting evidence that voluntary intoxication affected his ability to form the requisite intent. The contention lacks merit.
Trial Proceedings
At trial, defense counsel asked how Niblett relieved the financial and emotional pains that he was suffering at the time he attacked the victim. The prosecutor objected on the basis of relevance, and a side bar was held.
Defense counsel explained that he had been informed that Niblett voluntarily ingested PCP the day before the offense by smoking a "sherm" cigarette, and it was counsel's position that the PCP ingestion caused Niblett to commit the offense.
The prosecutor responded: "Your honor, the People would object on relevancy grounds. It's the People's position that even if he did voluntarily ingest P.C.P., which, based upon the officer's testimony, he exhibited no signs of being under the influence of any drug, it would be irrelevant in that there is no diminished capacity, that type defense, no longer in California. [¶] And the only way that the People see it as being relevant would be if this were a specific intent crime and it would be offered to negate his ability to form the specific intent. But corporal injury to spouse is a general intent crime which requires no intent other than to lift his hand up and bring it down on her head. I mean, it requires no intent. [¶] So it's the People's position that it wouldn't be relevant, and I'd submit it."
Defense counsel replied that the voluntary intoxication was relevant "in terms of the extent of the injuries that the lady suffered and the fact that he responded in the manner which he did." Counsel further argued that the prosecution had opened the door to PCP evidence by asking Deputy Moran about his observations and his opinion as to whether Niblett had ingested PCP. The defense should be given an opportunity to examine Niblett on his PCP use now that the subject had been broached in testimony.
The court inquired whether the defense solely intended to ask questions about Niblett's voluntary PCP ingestion in relation to the areas discussed, and counsel confirmed that was the case.
The prosecutor interjected, "Your honor, just so the record is clear, the only reason that the People even inquired into that area is because counsel indicated that there was some expert that testified in another trial regarding that issue for the defendant, and he has not given me discovery yet. And he told me as of yesterday he didn't know if he was calling him, and it was a way of saving time for the People so we wouldn't have to recall the officer. That was the only reason that it was even brought up at all."
The court ruled that defense counsel could elicit testimony regarding PCP as requested.
When questioning resumed, counsel examined Niblett regarding his PCP ingestion, the effect it had on his mind, and his continued intoxication during the attack. Niblett testified that he smoked two "sherms," which made his mind "run," and caused him to hear voices. The voices told him that the victim was "beating up on" his daughter. Niblett testified the voices were "the control."
In closing, Niblett's counsel argued: "And he really made the mistake of smoking a 'sherm,' a P.C.P. laced cigarette. There is no question he did that voluntarily. So we are not saying that somebody forced it upon him and what happened thereafter was not his doing; but at the same time, he talked about what these voices were talking to him about. And the voices were apparently not voices for telling him what was really going on. The voices caused him to think that things were happening to his child. Coupled with the circumstances surrounding the dispute that he was having ongoing with [the victim] concerning the finances, it became magnified, exacerbated."
The trial court did not instruct the jury regarding consideration of voluntary intoxication.
Voluntary Intoxication
"[W]hen our Legislature eliminated the defense of diminished capacity (Stats. 1981, ch. 404, pp. 1591-1592), it precluded jury consideration of mental disease, defect, or disorder as evidence of a defendant's capacity to form a requisite criminal intent, but it did not preclude jury consideration of mental condition in deciding whether a defendant actually formed the requisite criminal intent." (People v. Williams (1997) 16 Cal.4th 635, 677.) The defense of voluntary intoxication is only relevant to intent in specific intent crimes. (§ 29.4; People v. Mendoza (1998) 18 Cal.4th 1114, 1127-1128.) Section 273.5 requires only general intent. (People v. Campbell (1999) 76 Cal.App.4th 305, 308, disapproved on another ground in People v. Farwell (2018) 5 Cal.5th 295, 304, fn. 6.) A defendant's voluntary intoxication is therefore not relevant to a section 273.5 charge. The intent to cause great bodily injury, on the other hand, is specific intent, and evidence of voluntary intoxication is relevant when intent to cause great bodily harm is at issue. (§ 29.4.)
Analysis
We agree with Niblett that his voluntary intoxication was not relevant to the offense of causing corporal injury to the mother of his child under section 273.5, subdivision (a), and thus not properly before the jury. However, the irrelevance of a voluntary intoxication defense at trial does not preclude a trial court from subsequently determining that voluntary intoxication did not affect a petitioner's ability to form the specific intent to cause great bodily injury, so long as the record contains substantial evidence to support the court's finding. In Guilford, supra, 228 Cal.App.4th 651, the Third District held that substantial evidence supported the trial court's finding that the defendant intended to cause great bodily injury to another person and was ineligible for recall of his sentence under Proposition 36 where, as here, the defendant was convicted of violating section 273.5, subdivision (a), and the jury had not made a finding with respect to great bodily injury, because substantial evidence supported the trial court's finding. (Id. at pp. 658-659.)
Moreover, our Supreme Court has held that "section 1170.12, subdivision (c)(2)(C)(iii) is best read as excluding from resentencing 'broadly inclusive categories of offenders who, during commission of their crimes—and regardless of those crimes' basic statutory elements—used a firearm, were armed with a firearm or deadly weapon, or intended to cause great bodily injury to another person.' (People v. Blakely (2014) 225 Cal.App.4th 1042, 1055.)" (People v. Estrada (2017) 3 Cal.5th 661, 670 (Estrada).) In Estrada, the Supreme Court considered the question of whether evidence relating to counts dismissed by plea agreement could be considered by the trial court when determining whether a defendant was armed with a deadly weapon, and therefore ineligible for resentencing under section 1170.126. The Estrada court concluded that it could, reasoning that: "Before passage of the Act, prosecutors had little reason to prove any conduct on a defendant's part that now constitutes disqualifying conduct under section 1170.12, subdivision (c)(2)(C)(iii). [Citation.] . . . [A] judgment that predates Proposition 36 may at times fail to imply anything about disqualifying conduct, even if the evidence available to the prosecution could have supported such a finding. For this reason, we think it unlikely that it was part of the Act's design to prevent courts reviewing a recall petition from considering conduct beyond that implied by the judgment." (Estrada, supra, at p. 671.) "Precluding a court from considering facts not encompassed within the judgment of conviction would be inconsistent with the text, structure, and purpose of sections 1170.12, subdivision (c)(2)(C)(iii) and 1170.126, subdivision (e)(2)—and would, by consequence, impose an unnecessary limitation." (Id. at p. 672.) The posture in Estrada differs from that of the current case, but, in light of the ample evidence of Niblett's intent to cause great bodily injury , we conclude that the Supreme Court's reasoning is applicable here.
Substantial evidence in the record supports the trial court's finding. The court considered Niblett's testimony that he ingested PCP the day before the attack, but found credible Deputy Moran's testimony that Niblett did not appear to be under the influence of any drug. Other evidence indicates that Niblett's voluntary intoxication did not affect his mental state at the time of the attack: Niblett testified that he ran errands the morning of the attack, which involved driving a tow truck, driving a car, and changing a flat tire. He testified that he suffered no impairment to his memory, and he described his movements in detail. The trial court could reasonably find that his actions and his clear memory of the day were inconsistent with his claim of intoxication. Niblett also admitted that although the PCP-induced voices caused him to go to the victim's mother's house, once there, he attacked the victim because of their disagreements over money, and not because the voices urged him to attack her—"it was a whole 'nother thing." Any contradictory testimony that Niblett may have given is simply conflicting evidence, which we do not re-weigh on review. (People v. Hernandez (2011) 200 Cal.App.4th 1000, 1004 ["[w]e presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence, [and] do not reweigh the evidence or reevaluate the credibility of the witnesses"].) The victim's serious injuries and the manner in which Niblett inflicted them are further evidence of his intentions. It is difficult to fathom that Niblett could throw, hit, and choke the victim, fracturing and scarring her nose, and causing swelling and bleeding that covered both her face and the wall behind her, without intending to cause her great bodily injury. Substantial evidence supports the trial court's finding that Niblett intended to cause great bodily harm to the victim.
Finally, Niblett's argument that he was precluded from presenting evidence of the effect of his voluntary ingestion of PCP is belied by the record. Although the prosecutor argued the evidence was inadmissible to negate intent, the trial court neither addressed the argument nor prevented Niblett from presenting evidence of his PCP ingestion. The court granted counsel's request to ask a "few" questions, and did not expressly prohibit other questioning related to Niblett's PCP use. Although the People informed the court that defense counsel mentioned the possibility of calling an expert, counsel had not decided whether to call the expert when he discussed the issue with the prosecutor. Defense counsel never subsequently attempted to call the expert witness, despite successfully arguing that evidence of Niblett's PCP ingestion was relevant and admissible.
In practice, the questions that defense counsel was permitted to ask coalesced into a well-developed examination of Niblett on the issue, and formed part of the basis for his defense. The prosecutor did not object to defense counsel's examination of Niblett with respect to PCP or his mental state following the initial, unsuccessful objection, nor did the trial court curtail the examination. In closing, Niblett's counsel argued that the PCP he ingested caused Niblett to attack the victim.
As we have discussed, in ruling on a petition for recall pursuant to section 1170.126, subdivision (b), a trial court's considerations are not restricted to what is "implied by the judgment," and the court may deny the ameliorative benefits of recall so long as there is substantial evidence in the record to support a finding that the petitioner is statutorily ineligible for relief. (Estrada, supra, 3 Cal.5th at p. 671.) Therefore, it is of no moment that the jury was not instructed on voluntary intoxication, or that the verdict at trial did not encompass a specific jury finding on specific intent. Here, there was ample evidence on the record before the trial court that ruled on the petition for recall to support the conclusion that Niblett intended to cause great bodily injury, and the trial court so found. The trial court considered evidence in the record that Niblett was voluntarily intoxicated, but found the evidence unconvincing. Substantial evidence supports the trial court's determination that Niblett is ineligible because he intended to cause great bodily injury to the victim.
Cruel and Unusual Punishment
Niblett contends that his indeterminate life sentence for a non-serious, non-violent felony under Proposition 36 is cruel and unusual punishment under the California and federal constitutions. The People respond that Niblett's argument is noncognizable on appeal from a denial of an 1170.126 petition, forfeited because he failed to raise it below, and is in any case without merit. We agree that the claim is uncognizable. Section 1170.126 "does not provide for wholesale resentencing of eligible petitioners. Instead, it provides for a proceeding where the original sentence may be modified downward." (People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1304-1305.) Niblett was required to make any challenge to his original sentence on direct appeal or in a petition for habeas corpus. However, even if we were to assume that the claim was cognizable and preserved, we conclude that it has no merit.
Legal Principles
When faced with a claim of cruel and unusual punishment under either the federal or state constitution, "[a] reviewing court determines whether a particular penalty given '"is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity."' [Citation.]" (People v. Cole (2004) 33 Cal.4th 1158, 1235 (Cole).) "We . . . use a three-pronged approach to determine whether a particular sentence is grossly disproportionate." (People v. Johnson (2010) 183 Cal.App.4th 253, 296 (Johnson).) "First, we review 'the nature of the offense and/or the offender, with particular regard to the degree of danger both present to society.' [Citation.]" (Id. at pp. 296-297.) This analysis requires consideration of "'the circumstances of the offense, including the defendant's motive, the extent of the defendant's involvement in the crime, the manner in which the crime was committed, and the consequences of the defendant's acts[,]'" as well as "'the defendant's age, prior criminality[,] and mental capabilities.' [Citation.]" (Cole, supra, at p. 1235.) "Second, we compare the challenged punishment with punishments prescribed for more serious crimes in our jurisdiction. [Citation.] Third, and finally, we compare the challenged punishment to punishments for the same offense in other jurisdictions. [Citation.] The importance of each of these prongs depends upon the facts of each specific case[, and] . . . we may base our decision on the first prong alone." (Johnson, supra, at p. 297.)
"'Our Supreme Court has emphasized "the considerable burden a defendant must overcome in challenging a penalty as cruel or unusual. . . . [Citation.]' [Citation.]" (People v. Sullivan (2007) 151 Cal.App.4th 524, 569 (Sullivan).) "'Whether a punishment is cruel or unusual is a question of law for the appellate court, but the underlying disputed facts must be viewed in the light most favorable to the judgment.' [Citations.]" (Ibid.)
Analysis
With respect to the first factor—the nature of the offender and the offense—Niblett does not argue that there are any considerations that make either himself or the offense less deserving of punishment. Nothing in the record indicates that Niblett possesses some quality that makes him less worthy of blame than the typical defendant who violates section 273.5. To the contrary, Niblett is a recidivist, with eight convictions for serious or violent felonies, and is likely more deserving of punishment than many others convicted under section 273.5. The crime that Niblett committed was on the more serious end of the spectrum of section 273.5 violations. Section 273.5 penalizes "[a]ny person who willfully inflicts corporal injury resulting in a traumatic condition upon a victim" who is the mother of the offender's child. (§ 273.5, subd. (a)(4).) The provision defines "traumatic condition" as "a condition of the body, such as a wound, or external or internal injury, including, but not limited to, injury as a result of strangulation or suffocation, whether of a minor or serious nature, caused by a physical force. For purposes of this section, 'strangulation' and 'suffocation' include impeding the normal breathing or circulation of the blood of a person by applying pressure on the throat or neck." (§ 273.5, subd. (d).) Thus, a defendant may be convicted under section 273.5 even if the victim suffers only injury of a "minor" nature. In this case, the victim's injuries were not minor—her nose was fractured and she suffered lasting facial scarring. Her face remained swollen for several weeks, and she was unable to return to her workplace for two weeks following the attack. Niblett used considerable force against the victim, lifting her from the floor, throwing her across the room, and hitting her with his fists and other objects to the point that she was bruised and her face and the wall were covered in blood. The first factor does not weigh in Niblett's favor.
Although we discuss all three factors, we also take Niblett's failure to argue with respect to the first and third factors "as a concession that his sentence withstands a constitutional challenge on either basis." (People v. Retanan (2007) 154 Cal.App.4th 1219, 1231.)
With respect to the second factor—how the challenged punishment compares with punishments prescribed for more serious crimes in California—Niblett argues that his 25 years to life sentence as a third striker is excessive and disproportionate to the maximum sentence of 10 years he would serve if sentenced as a second striker, and equivalent to or greater than the sentence for more serious crimes—including first degree murder (§ 190, subd. (a) [25 years to life]), rape of a minor (§ 264, subd. (c) [9, 11, or 13 years]), and assault with caustic chemicals (§ 244 [2, 3, or 4 years]).
Niblett calculates the maximum sentence based on imposition of the high term of four years, doubled under the three strikes law, plus one year each for his prior convictions under section 667.5, subdivision (b).
With respect to the first argument, Niblett could only be sentenced as a second strike offender in this case if he was found not to have intended to cause great bodily injury and not to have been armed with a deadly weapon—he would receive lesser punishment if his intent was less reproachable and if he inflicted the victim's injuries without using a weapon that was capable of and likely to cause her great bodily injury or death. The punishment is not grossly disproportionate.
Niblett's second argument "'ignores that the three strikes law punishes not only his current offenses, but also his recidivism. California statutes imposing more severe punishment on habitual criminals have long withstood constitutional challenge.' [Citation.] [Niblett] is not subject to multiple 25-year-to-life sentences merely on the basis of his current offense[] alone, but also for his recidivist behavior." (Sullivan, supra, 151 Cal.App.4th at p. 571.) "'[P]roportionality assumes a basis for comparison. When the fundamental nature of the offense and the offender differ, comparison for proportionality is not possible.' [Citation.]" (Ibid.) Niblett makes no attempt to explain how his sentence is grossly disproportionate in comparison to sentences imposed on other habitual offenders, and thus comparison is impossible.
Niblett also ignores that "the punishment for first degree murder may indeed be greater than [he] received. Pursuant to section 190, subdivision (a), 'a person convicted of first degree murder is subject to the death penalty, life in prison without the possibility of parole, or a term of 25 years to life depending on the circumstances of the offense and the offender.' [Citations.]" (Sullivan, supra, 151 Cal.App.4th at p. 571.) Niblett could not have been sentenced to death or life without the possibility of parole.
Niblett also argues that his sentence is "unusual" because defendants convicted of violating section 273.5 after the passage of Proposition 36 on similar facts would serve at most a term of 8 years in comparison to his sentence of 25 years to life. We reject this argument as well. "There was nothing unusual about [Niblett's] sentence, as it was not one 'that in the ordinary course of events is not inflicted.' ([People v.] Schueren[ (1973) 10 Cal.3d. 553,] 560.) It may be that criminals convicted after the effective date of [Proposition 36] on facts similar to this case will no longer receive the same punishment. But that does not retroactively convert [Niblett]'s otherwise lawful sentence into a constitutionally 'unusual' one . . . ." (People v. Smith (2015) 234 Cal.App.4th 1460, 1468.) None of Niblett's arguments under the second factor are persuasive.
Finally, Niblett does not argue that his punishment is cruel and unusual under the third factor by comparing it to the punishment for similar crimes in other jurisdictions, but "'[a] comparison of California's punishment for recidivists with punishment for recidivists in other states shows that many of the statutory schemes provide for life imprisonment for repeat offenders, and several states provide for life imprisonment without possibility of parole.' [Citation.]" (Sullivan, supra, 151 Cal.App.4th at p. 573.) California's choice of punishment is not grossly disproportionate to that of other states. We conclude that the third factor also does not weigh in Niblett's favor.
Having considered all three factors relevant to determining whether a punishment is cruel and unusual under the state and federal constitutions, we conclude that Niblett's 25 years to life sentence does not violate the constitutional prohibition against cruel and unusual punishment.
Under the heading of cruel and unusual punishment, Niblett asserts that his punishment does not conform to the voters' intent was that defendants whose present offense was a non-serious, non-violent felony should not be required to serve an indeterminate sentence. While we agree that the electorate intended that many defendants whose third strike was for a non-serious, non-violent felony be punished as second strikers, "'the voters also intended to exclude those defendants who committed the current nonviolent and nonserious crime in a manner that potentially could result in violent and/or serious consequences, which intent is manifest in the triad of disqualifying factors. . . . "It is clear the electorate's intent was not to throw open the prison doors for all third strike offenders whose current convictions were not for serious or violent felonies, but only for those who were perceived as nondangerous or posing little or no risk to the public."' [Citation.]" (People v. Valdez (2017) 10 Cal.App.5th 1338, 1357.) Thus, the voters intended that offenders like Niblett, who intended to inflict great bodily harm on their victims, be sentenced as third strike offenders, despite the fact that their third offense was for a non-serious, non-violent felony.
DISPOSITION
The judgment is affirmed.
MOOR, J.
We concur:
RUBIN, P. J.
BAKER, J.