IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
February 3, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
LAWRENCE UDUKOBRAYE PELA, DEFENDANT AND APPELLANT.
(Super. Ct. No. 07F05487)
The opinion of the court was delivered by: Hull ,j.
P. v. Pela CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury convicted defendant Lawrence Udukobraye Pela of 11 counts of robbery and found he personally used a firearm during the commission of each of those offenses. (Pen. Code, §§ 211, 12022.53, subd. (b).) The trial court sentenced defendant to a total of 46 years 8 months in state prison. Defendant timely filed this appeal.
On appeal, defendant contends his sentence constitutes cruel and unusual punishment. He concedes the length of his sentence is not of itself unduly harsh, but contends that because he has a mental illness, and because the California prison system has endemic problems providing adequate mental health care to inmates, his sentence will result in inhumane treatment. We reject this contention. Defendant also contends, and the Attorney General concedes, that two restitution fines are excessive. We accept the concession, modify the restitution fines and affirm the judgment as modified.
FACTS AND PROCEEDINGS
Defendant robbed 11 victims in nine separate incidents from March through May 2007. Each time he would enter a store wearing a mask or bandanna, display a firearm and demand money, and in one case he also took an Xbox and video games. He was captured when the last victim placed a tracking device with the store's money, and defendant was arrested in possession of a mask and a loaded firearm.
The probation report states defendant was born in 1981, and is "reported to be in good physical health and free of any psychological disorders."
A defense sentencing memorandum claimed defendant had a "mood disorder" that led to "cycles of depression and manic behavior" that had not been managed. A court-ordered psychiatric evaluation by Dr. Charles Schaffer found defendant had "bipolar disorder and polysubstance abuse." Based on federal court findings of defects in the prison system's treatment of mentally ill inmates, and the establishment of a receivership to take over prison medical care, the defense argued any sentence beyond the legal minimum of 12 years would be excessive.
Attached to the defense memorandum was a report by a criminologist and a social worker, summarizing defendant's background. In part it concluded that although he showed no signs of mental health problems as a child or teenager, despite purportedly adverse family circumstances, his change from an honest, upstanding churchgoer into a robber was largely caused by an organic bipolar disorder. His grandmother's death "triggered a 'kindling' event in the brain" that made him susceptible to "a debilitating mood disorder" and "Without help or insight into his mood disorder, [defendant] became engulfed in cycles of depression and manic behavior that led to withdrawal and hopelessness on the one hand, and impulsive and reckless behavior on the other."
Dr. Schaffer's prior psychiatric evaluation reflects that defendant told Dr. Schaffer he spent the money from the robberies on drugs and alcohol, and that he had never been diagnosed with any psychiatric disorder. However, in 2006 he began "experiencing some mood symptoms" including depressive symptoms and hypomanic symptoms. Before his arrest he had worked as a machinist.
Dr. Schaffer's examination revealed defendant "was mildly depressed" and claimed to hear voices of his parents arguing, although he conceded he knew these voices were not real. "There was no obvious evidence of cognitive deficits suggestive of an organic mental disorder." Defendant said he committed the robberies because "he was feeling discouraged about his life at the time. He saw himself as going nowhere at age 26. He did not feel positive about his current career. He needed a release. His substance abuse may have contributed to these robberies because they tended to occur occasionally when he was drinking or using drugs and was dissatisfied with his life situation." Dr. Schaffer concluded defendant's bipolar disorder was evidenced by "depressed mood, sleep disturbance, social withdrawal, impaired memory, hopeless feelings, low self-esteem, anxiety, irritability, occasional excessive energy, occasional increased psychomotor activity, rapid thoughts, and rumination." It could be treated by medication and psychotherapy, and his substance abuse could be addressed by support groups or individual therapy, as an outpatient or an inpatient.
The People sought a 52-year sentence, in part arguing "Even though the defense provides reports that the defendant was suffering from bipolar and polysubstance abuse, these conditions do not significantly reduce his culpability for the crimes committed."
At sentencing, the trial court noted that multiple-robbery cases usually occur over a short time span, but defendant committed his crimes during over more than two months, and "to me that is time for reflection. [¶] You confronted your victims. You saw their fear. You got the benefit of the robbery. You had a chance to think about that and you came back and did it again. And then you had a chance to reflect on what you saw and then you came back and you did it again." The trial court stated it "did spend time" reading Dr. Schaffer's report and thought defendant's illness was "minor in character contrasted to those that I see normally." Given the "time separation" between the crimes, the trial court did not give the report "the weight that your attorney is arguing that I give it[.]"
Because of defendant's clean criminal record, the trial court imposed the lower term of two years on the principal count, plus 10 years for the firearm enhancement, stayed some counts (Pen. Code, § 654) and ran some counts concurrently, resulting in a sentence of 46 years 8 months.
Cruel and/or Unusual Punishment
As stated, defendant does not contend the length of his sentence, by itself, is excessive. And rightly not. Under the California Constitution and the United States Constitution, his sentence for 11 armed robberies in nine separate instances is not excessive. (See In re Lynch (1972) 8 Cal.3d 410, 424 [punishment may violate California Constitution if "it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity."]; People v. Cartwright (1995) 39 Cal.App.4th 1123, 1135 [Eighth Amendment forbids "'only extreme sentences that are "grossly disproportionate" to the crime.'"].)
Instead, alleging endemic problems in the delivery of medical and mental health care in California prisons, defendant posits that he will not receive adequate mental health care in prison, and for that reason, his sentence constitutes cruel and unusual punishment under the Eighth Amendment.
We accept, as does the Attorney General, the proposition that the Eighth Amendment forbids inflicting unnecessary "pain and suffering" on prisoners by denying adequate medical care. (Estelle v. Gamble (1976) 429 U.S. 97, 101-106 [50 L.Ed.2d 251, 258-261] [civil rights suit] (Estelle).) But defendant provides no authority for the subsidiary proposition that because he might not receive adequate treatment in prison, his sentence violates the Eighth Amendment. Nor has he cited any final court rulings that have held the conditions of California's prisons require shortening sentences or the release of existing prisoners because of their physical or mental health conditions.
Further, the trial court considered Dr. Schaffer's report and concluded, factually, that any mental health problem defendant had was relatively minor. A trial court has broad discretion to make factual findings at sentencing. (See, e.g., People v. Sandoval (2007) 41 Cal.4th 825, 847-848.) We see no reason to disagree with the trial court's conclusion that defendant's mental health problems were minor. Defendant's bipolar condition caused mood swings, but did not prevent him from functioning, nor prevent him from carrying out nine separate armed robberies over a two-month period. The mere fact defendant had a diagnosable mental illness that would likely benefit from treatment that he might or might not receive in prison does not compel a more lenient sentence.
Moreover, anent to the last observation and as the Attorney General points out, defendant seeks a 12-year term. But defendant does not explain why a 12-year term would make the sentence appropriate, if, as defendant posits, the prison system ineluctably will treat him inhumanely. Defendant suggests a 12-year term balances California's "legitimate interests" in punishing him with his right to be free of cruel treatment, but does not provide any authority for such a balancing test. Nor does he explain how 12 years of cruel punishment--or one hour of cruel punishment--could be lawful, regardless of California's interests.
Finally, defendant has a remedy, which is to insist that the prison authorities provide him with adequate medical care as needed, including adequate mental health care. The fact that the prison system is in a federal receivership shows that the problems are being addressed in an orderly fashion. Defendant also has the remedy of a civil suit to defend his interests. (See Estelle, supra, 429 U.S. 97 [50 L.Ed.2d 251].)
In short, the fact that the California prison system may have been providing substandard medical care in the past is not a basis to shorten defendant's sentence, because he has not established his sentence is cruel and unusual under the Eighth Amendment to the United States Constitution.
The trial court imposed a restitution fine of $92,000, and a like parole revocation restitution fine.
Defendant contends, and the Attorney General concedes, that by statute, the maximum amount of such fines is $10,000. (Pen. Code, §§ 1202.4, subd. (b)(1); 1202.45; see People v. Ferris (2000) 82 Cal.App.4th 1272, 1275-1278.)
Although defendant seeks a remand, because it is clear the trial court would impose the maximum legally authorized fine, a remand would be futile and we exercise our power to modify each of these fines to $10,000. (See Pen. Code, § 1260.)
We deem defendant to raise the issue whether recent statutory amendments would increase his presentence conduct credit award. (Misc. order No. 2010-002.) However, defendant was convicted of robbery, a "violent" felony. (Pen. Code, §§ 211, 667.5, subd. (c)(9).) Therefore, as the trial court found, Penal Code section 2933.1 limited defendant to accruing no more than 15 percent conduct credits. Further, robbery is also deemed a "serious felony." (Pen. Code, § 1192.7, subd. (c)(19).) Therefore, the more generous credit formulae recently enacted does not benefit him. (See Pen. Code, §§ 4019, subds. (b)(1), (2), & (c)(1), (2), as amended by Stats. 2009, 3d Ex. Sess., 2009-2010, ch. 28, § 50, 2933, subd. (e)(3), as amended by Stats. 2010, ch. 426, § 1.)
The judgment is affirmed as modified. The trial court is directed to prepare and forward to the Department of Corrections and Rehabilitation a new abstract of judgment.
BLEASE , Acting P.J.
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