IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Shasta)
April 21, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
JEREMY ROSS IVEY, DEFENDANT AND APPELLANT.
Super. Ct. No. 09F4068
The opinion of the court was delivered by: Blease , Acting P.J.
P. v. Ivey
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Jeremy Ross Ivey was convicted by jury of making a criminal threat (Pen. Code, § 422).*fn1 Following a bifurcated hearing, the trial court found that defendant previously had been convicted of a "strike" offense within the meaning of the "Three Strikes" law (§§ 667, subd. (b)-(i), 1170.12) and that he had also served a prior prison term (§ 667.5, subd. (b)). Following an unsuccessful motion to strike defendant's strike conviction pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero), the trial court sentenced him to an aggregate term of seven years in state prison (upper term of three years, doubled pursuant to the Three Strikes law, plus a consecutive one-year term for the prior prison term), and imposed other orders.
On appeal, defendant contends: (1) the trial court abused its discretion by refusing to strike his prior strike conviction under Romero; and (2) his sentence is disproportionate to his crime in violation of the Eighth Amendment to the United States Constitution and article I, section 17, of the California Constitution. As we shall explain, we disagree and affirm the judgment.
Following the well-established rule of appellate review, we recite the facts in the light most favorable to the judgment, drawing all reasonable inferences in support thereof. (People v. Bogle (1995) 41 Cal.App.4th 770, 775.)
In May 2009, following a dependency hearing concerning reunification with one of defendant's children, defendant began to yell profanities at his attorney, Marc Barulich, in the hallway outside the courtroom. Concerned that the commotion would attract the attention of court security personnel, Barulich told defendant's girlfriend to take him out of the building. Defendant was stopped by security personnel in a stairwell as he tried to leave the courthouse. He was visibly angry and still yelling profanities. After a few minutes, defendant appeared to calm down and was allowed to leave.
After leaving the courthouse, defendant sat on a bench outside the building and called Barulich's office with his cell phone. Barulich's office assistant, Tracie Palmer, answered the phone: "Good afternoon, Marc Barulich's office." Defendant responded: "Put that little fucker on the phone." Rather than telling defendant that Barulich was still at the courthouse, Palmer told him that she was not inclined to put Barulich on the phone while defendant was yelling at her. Defendant responded by yelling that he "had been disrespected all morning in court" and was not going to take any further disrespect from her. Palmer then told defendant: "[M]aybe you should hang up, take a breath, call me back when you're calmer." After a couple more "I'm-not-going-to-be-disrespecteds," defendant paused and calmly stated: "You know, I need to just come down there and start shooting." He concluded the call with a particularly vile epithet and hung up the phone.
Barulich's office was across the street from the back of the courthouse. Roughly three minutes after hanging up the phone with Palmer, defendant entered the office. Palmer had just informed Barulich's secretary, Janice Hess, that defendant had called and that they might have a problem. When defendant entered the building, Palmer told him that he needed to leave. Instead, defendant aggressively approached her and started yelling that he had been "fucking disrespected" and asked her "who the hell did [she] think [she] was." Hess then asked Palmer if she should call the police, prompting defendant to pull out his cell phone and say: "Here, use my phone; if you want to call them, fucking use my phone."
Hess then went into her office and dialed 911. Defendant sat down on a couch in the lobby and said: "Fine, I'll just sit right here and wait for them." At this point, another attorney working out of the office, Rodney Key, went out into the lobby to investigate the situation. Key told the "agitated" and "confrontational" defendant that he would have to leave. Defendant eventually complied, but not before telling Palmer: "I know what time you get off work, you bitch."
Defendant was convicted by jury of making a criminal threat. The trial court found that he had been previously convicted of residential burglary in 1995, a strike offense within the meaning of the Three Strikes law, and that he had also served a prior prison term.
Defendant moved to strike his prior strike conviction pursuant to Romero. In support of the motion, he argued that the nature and circumstances of the current conviction supported striking the prior strike because he was "frustrated by events in the family law court [and] called his attorney's office to express his displeasure," did not "bring a weapon into the office," and did not "assault or batter in any way the occupants of the office." With respect to the nature and circumstances of the prior strike, defendant argued that it was remote in time, committed when he was 18 years old, and that he successfully completed his grant of probation without any violations. Finally, with respect to his background, character, and prospects for the future, defendant argued that he had taken several classes while incarcerated, had "a substantial amount of work experience in the construction industry," had done "forestry work," and had worked for American Air Duct, Bail Bond Connection, and Jack-in-the-Box.
The People opposed the motion to strike defendant's prior strike conviction, arguing that "defendant's criminal record places him squarely within the spirit of the three-strikes law." Indeed, defendant was convicted of residential burglary in 1995. In 2000, he was convicted of petty theft with a prior. Defendant was then convicted of theft and battery in 2003. In 2004, he was convicted of making a criminal threat and driving under the influence of alcohol. Finally, defendant was convicted of willful infliction of corporal injury on a cohabitant in 2005. Following each of these convictions, defendant was placed on probation and allowed to serve a short period of time in the county jail. After a probation violation in 2006, he was sentenced to a term of two years in state prison.
The trial court denied the motion. Discussing the nature and circumstances of the current offense, the trial court explained that defendant made "a true, credible, criminal threat and that the victim was in fact threatened and was in fear for her own safety." Indeed, explained the court, "the facts and circumstances of this event, along with the defendant's history, indicate a greater risk of damage to the public than normal because at least in the average criminal felony threat case there are no similar priors. In this case, the defendant was convicted of this very same offense back in October of 2004, less than five years before the date of the offense in our case."
The court then chronicled defendant's criminal history, explaining that defendant "has not gotten the message about the consequences of criminal behavior. He was allowed to do basically six months [in the county jail] for his strike back in  and that's the most jail he's done until he was given a violation commitment to prison. And -- And it's time for the defendant to go to prison on a substantial commitment. He's still a relatively young man and he will be a young man, relatively, when he's paroled. He needs to find out that the law does not progressively keep giving the same sentence but the sentences should get greater as the conduct is repeated." The court concluded: "This is a serious felony conviction in my mind. I don't mean technically serious, I mean it was a serious crime in the court's judgment with a serious threat. And so, when I look at the facts and circumstances they're indicative of significant danger to society. The defendant's engaged in multiple threats of violence to people; he's engaged in at least two certain acts of violence -- a battery and a separate domestic violence -- in different years. [¶] . . . I find that in light of the nature, circumstances of the present offense and the prior felonies and the particulars of the defendant's background, character, and prospects for success on probation, I think he is not at all outside the scheme and spirit of the three strikes law and I'm not striking any prior in this case for those reasons."
Defendant contends that the trial court abused its discretion by refusing to strike his prior strike conviction under Romero. We disagree.
Under section 1385, subdivision (a), a "judge or magistrate may, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed." In Romero, our Supreme Court held that a trial court may utilize section 1385, subdivision (a) to strike or vacate a prior "strike" conviction for purposes of sentencing under the Three Strikes law, "subject, however, to strict compliance with the provisions of section 1385 and to review for abuse of discretion." (Romero, supra, 13 Cal.4th at p. 504.) Similarly, a trial court's "failure to dismiss or strike a prior conviction allegation is subject to review under the deferential abuse of discretion standard." (People v. Carmony (2004) 33 Cal.4th 367, 374 (Carmony).)
"In reviewing for abuse of discretion, we are guided by two fundamental precepts. First, '"[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review."' [Citations.] Second, a '"decision will not be reversed merely because reasonable people might disagree. 'An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.'"' [Citation.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (Carmony, supra, 33 Cal.4th at pp. 376-377.)
We are also mindful that "'the Three Strikes law does not offer a discretionary sentencing choice, as do other sentencing laws, but establishes a sentencing requirement to be applied in every case where the defendant has at least one qualifying strike, unless the sentencing court "conclud[es] that an exception to the scheme should be made because, for articulable reasons which can withstand scrutiny for abuse, this defendant should be treated as though he actually fell outside the Three Strikes scheme."' [Citation.]" (Carmony, supra, 33 Cal.4th at p. 377.) "[T]he 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." (People v. Williams (1998) 17 Cal.4th 148, 161 (Williams); Carmony, supra, 33 Cal.4th at p. 377.)
Thus, the Three Strikes law "creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper." (Carmony, supra, 33 Cal.4th at p. 378, italics added.) This presumption will only be rebutted in an "extraordinary case - where the relevant factors described in Williams, supra, 17 Cal.4th 148, manifestly support the striking of a prior conviction and no reasonable minds could differ . . . ." (Ibid.)
We cannot find that the trial court abused its discretion by declining to strike defendant's prior conviction.
Defendant argues that the trial court abused its discretion by "fail[ing] to properly consider the current offense when denying the Romero motion . . . ." Specifically, he complains that the trial court mentioned that "the facts and circumstances of this event, along with the defendant's history, indicate a greater risk of damage to the public than normal because at least in the average criminal felony threat case there are no similar priors. In this case, the defendant was convicted of this very same offense back in October of 2004, less than five years before the date of the offense in our case." Defendant points out that he was not convicted of the "very same offense" in 2004 because his current criminal threats conviction was a felony and his 2004 criminal threats conviction was a misdemeanor. However, on the very same page of the reporter's transcript, the trial court points out that the 2004 criminal threats conviction was "in the grade of misdemeanor." Thus, contrary to defendant's assertion, the trial court did not erroneously find that his prior criminal threats conviction was a felony.
Nor was this distinction critical to the trial court's conclusion that the current offense was serious. After verbally abusing his attorney's office assistant over the phone, defendant threatened to come to the office and "start shooting." He then came to the office, delivered further verbal abuse, and told the assistant: "I know what time you get off work, you bitch." The trial court correctly concluded that this was a serious crime and rendered more so by the fact that defendant was previously convicted of making a criminal threat. Simply put, the nature and circumstances of defendant's current offense do not support the striking of his prior strike conviction.
Defendant also argues that the trial court abused its discretion by "fail[ing] to consider [his] 'background, character, and prospects.'" In this regard, defendant points out that he not only successfully completed a term of probation following his 1995 strike conviction, but also successfully completed his term of parole after being released from prison in 2007. While true, these periods of compliance with the law do not negate defendant's lengthy criminal record, including a 2003 misdemeanor battery conviction, a 2004 misdemeanor criminal threats conviction, and a 2005 felony domestic violence conviction. The trial court did not abuse its discretion in concluding that defendant's background, character and prospects brought him squarely within the spirit of the Three Strikes law.
Defendant further argues that the trial court abused its discretion by "fail[ing] to properly consider the prior strike conviction . . . ." In this regard, defendant points out that his prior strike for the residential burglary of a vacation home was remote in time, occurring in 1995 when he was 18 years old. He also points out that there were no allegations that the burglary involved violence or the threat of violence. While true, residential burglary is a very serious offense. And as the trial court accurately chronicled, defendant has committed numerous crimes between the strike offense and the current offense. The fact that roughly 15 years has passed between the prior strike and the current offense is not significant because defendant "did not refrain from criminal activity during that span of time . . . ." (Williams, supra, 17 Cal.4th at p. 163.)
Simply put, the trial court did not abuse its discretion by declining to strike defendant's prior conviction under Romero. Far from being outside the spirit of the Three Strikes law, defendant is precisely the type of recidivist offender for whom the law was enacted.
Defendant also claims that his sentence is disproportionate to his crime in violation of the Eighth Amendment to the United States Constitution and article I, section 17, of the California Constitution. This contention has been forfeited by defendant's failure to raise it in the trial court. (People v. Norman (2003) 109 Cal.App.4th 221, 229; People v. DeJesus (1995) 38 Cal.App.4th 1, 27.) The claim has also been forfeited by defendant's failure to support it with reasoned analysis or citations to legal authority in his briefing on appeal. (Cal. Rules of Court, rule 8.204(a)(1)(B); People v. Windham (2006) 145 Cal.App.4th 881, 893, fn. 8.)
In any event, the claim is meritless. The Eighth Amendment to the United States Constitution (made applicable to the states via the Fourteenth Amendment) proscribes "cruel and unusual punishment" and "contains a 'narrow proportionality principle' that 'applies to non-capital sentences.'" (Ewing v. California (2003) 538 U.S. 11, 20 [155 L.Ed.2d 108, 117] (Ewing) quoting Harmelin v. Michigan (1991) 501 U.S. 957, 996-997 [115 L.Ed.2d 836, 865-866] (Harmelin); Lockyer v. Andrade (2003) 538 U.S. 63, 72 [155 L.Ed.2d 144, 156].) While this proportionality principle "'does not require strict proportionality between crime and sentence,'" it does prohibit "'extreme sentences that are "grossly disproportionate" to the crime.'" (Ewing, supra, 538 U.S. at p. 23 [155 L.Ed.2d at p. 119], quoting Harmelin, supra, 501 U.S. at p. 1001 [115 L.Ed.2d at p. 869].)
This proportionality analysis requires consideration of three objective criteria: "(i) the gravity of the offense and the harshness of the penalty; (ii) the sentence imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions." (Solem v. Helm (1983) 463 U.S. 277, 292 [77 L.Ed.2d 637, 650].) However, in a non-capital case, a successful proportionality challenge will be "'exceedingly rare'" (Ewing, supra, 538 U.S. at p. 21 [155 L.Ed.2d at p. 117], quoting Rummel v. Estelle (1980) 445 U.S. 263 [63 L.Ed.2d 382, 389]), and it is only in the rare case where a comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality that the second and third criteria come into play. (Harmelin, supra, 501 U.S. at p. 1005 [115 L.Ed.2d at pp. 871-872] (conc. opn. of Kennedy, J.).)
In Ewing, supra, 538 U.S. 11 [155 L.Ed.2d 108], the United States Supreme Court rejected an Eighth Amendment challenge to a three strikes prison term of 25 years to life for the theft of three golf clubs, noting that recidivism has traditionally been recognized as a proper ground for increased punishment. (Id. at p. 25 [155 L.Ed.2d at p. 120].) Given the defendant's long criminal history, the court held that his sentence was not disproportionate despite the relatively minor character of his current felony. (Id. at p. 29 [155 L.Ed.2d at p. 122]; see also People v. Romero (2002) 99 Cal.App.4th 1418, 1424 [25 years to life for felony petty theft with priors (for stealing a magazine) does not constitute cruel and unusual punishment].)
Here, defendant received a sentence of seven years for making a criminal threat. While admittedly a harsh sentence, it is far less severe than the term of 25 years to life imposed upon the defendant in Ewing for the theft of three golf clubs. Moreover, even if seven years would amount to a grossly disproportionate sentence for someone without a serious and/or violent criminal history, we must also take into account our Legislature's legitimate interest "'in dealing in a harsher manner with those who by repeated criminal acts have shown that they are simply incapable of conforming to the norms of society as established by its criminal law.'" (Ewing, supra, 538 U.S. at p. 29 [155 L.Ed.2d at p. 122].) Defendant has shown such an inability to abide by the criminal law.
Similarly, article I, section 17 of the California Constitution proscribes "cruel or unusual punishment." Although this language is construed separately from the federal constitutional ban on "cruel and unusual punishment" (People v. Carmony (2005) 127 Cal.App.4th 1066, 1085), the method of analysis is similar: the reviewing court considers "'the nature of the offense and/or the offender, with particular regard to the degree of danger both present to society'"; the comparison of "'the challenged penalty with the punishments prescribed in the same jurisdiction for different offenses'"; and the comparison of "'the challenged penalty with the punishments prescribed for the same offense in other jurisdictions . . . .'" (In re Lynch (1972) 8 Cal.3d 410, 425-427, italics omitted.) The purpose of this analysis is to determine whether the punishment is "so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity." (Id. at p. 424, fn. omitted.)
This case is not even close to being "that 'exquisite rarity' [citation], an instance of punishment which offends fundamental notions of human dignity or which shocks the conscience." (People v. Kinsey (1995) 40 Cal.App.4th 1621, 1631.)
The judgment is affirmed.
We concur: HULL ,J. ROBIE ,J.