Filed 5/16/16 P. v. Costanza CA5

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F070200
         Plaintiff and Respondent,
                                                                              (Super. Ct. Nos. CRF39951,
                   v.                                                                 CRF41410)

ROCCO ANGELO COSTANZA,
                                                                                         OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Tuolumne County. James A.
Boscoe, Judge.
         Robert Derham, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Nora S.
Weyl, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-




*        Before Kane, Acting P.J., Detjen, J. and Peña, J.
       Appellant Rocco Angelo Costanza appeals the sentences imposed for his
convictions of battery causing serious bodily injury (Pen. Code, § 243,
subd. (d)/count 1)1 and assault by means of force likely to cause great bodily injury
(§ 245, subd. (a)(4)/count 2).2 Appellant contends his counsel was ineffective at
sentencing for not seeking to strike one or more of his prior convictions. He further
argues that his sentence violates constitutional prohibitions on cruel and unusual
punishment. For the reasons set forth below, we affirm.
                 FACTUAL AND PROCEDURAL BACKGROUND
Conduct Leading to Arrest
       Appellant’s current conviction arises out of a violent confrontation. On June 4,
2013, at around 11:30 p.m., Laurel Young and her fiancé Jeffrey Buchanan took their dog
for a walk near their home in Sonora. As they began their walk, Ms. Young and Mr.
Buchanan encountered appellant. Appellant approached the couple asking, “How you
doin’?” with an East coast inflection. When Ms. Young replied, “Fine. How are you?”
appellant ignored her and continued walking. Despite finding appellant’s conduct weird,
Ms. Young and Mr. Buchanan continued their walk.
       As Ms. Young and Mr. Buchanan were walking home, they again encountered
appellant. This time appellant was squatting down, talking to a tree on the side of the
road, while acting like a monkey and growling. Fearful of the situation, Ms. Young tried
to call 911 and picked up a rock.

1      All statutory references are to the Penal Code unless otherwise noted.
2      We previously granted appellant’s motion to construe his notice of appeal to cover
the sentences imposed in Tuolumne County Superior Court case Nos. CRF39951 and
CRF41410. Appellant’s convictions for battery and assault derive from case No.
CRF41410. Appellant makes no argument that would directly affect his sentence in case
No. CRF39951, which was imposed for a parole violation triggered by appellant’s
conviction in case No. CRF41410. But we note the sentence in case No. CRF39951 was
imposed during the same proceedings as, and immediately following, the sentence in case
No. CRF41410.


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       Ms. Young asked appellant, “What’s your name?” Appellant responded in a
mocking, “sing-song” tone, repeating “What’s your name? What’s your name?” loudly,
while continuing to posture like a monkey. Appellant then moved toward Ms. Young and
Mr. Buchanan. Ms. Young attempted to hit appellant in the throat with her rock, but
failed. Appellant grabbed Ms. Young and threw her into the street.
       At this point, Mr. Buchanan yelled at appellant. Appellant then moved towards
Mr. Buchanan and the two began fighting. In the course of that confrontation, appellant
picked up Mr. Buchanan and slammed him into the concrete multiple times, causing
Mr. Buchanan to lose consciousness. Appellant then left, acting like a gorilla as he
headed down the street.
Criminal Proceedings and Trial
       Appellant was arrested and charged with battery causing serious bodily injury and
assault by means of force likely to cause great bodily injury. It was further alleged that
appellant had been twice convicted of serious or violent felonies. Once in 1991 for
robbery (§ 211) and once in 2013 for making criminal threats (§ 422). These same prior
convictions were alleged as enhancements under sections 667, subdivision (a)(1), and
1203, subdivision (e)(4).
       At his June 2013 hearing, the court ordered an evaluation of appellant’s mental
competency under section 1368. The evaluation, conducted by Dr. Gary Cavanaugh,
diagnosed appellant with an unspecified psychotic disorder and an unspecified impulse
control disorder before concluding that appellant was “not competent to stand trial as
defined under Penal Code Section 1368” based in part on “his probable delusional
interpretation of the events the [sic] led to his arrest.” At the July 31, 2013 hearing
before Judge Douglas Boyack, appellant was declared incompetent. And at the
September 13, 2013 hearing before Judge Eleanor Provost, appellant was ordered to
attend an inpatient program.



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       Based on the treatment provided, appellant was ultimately deemed competent to
stand trial. Prior to trial, appellant admitted to the validity of the two alleged priors with
respect to their status as serious or violent felonies constituting strikes under sections
1192.7, subdivision (c), and 667, subdivisions (b) through (i); their status as consecutive
five-year sentence enhancements under section 667, subdivision (a); and their status as
ineligibility factors for probation. As part of these admissions, appellant was informed
that his sentence, if convicted of the two charged counts and enhancements, would be 37
years to life.
       At trial, before Judge James Boscoe, appellant testified on his own behalf. He
claimed not to have said anything to Ms. Young and Mr. Buchanan, and contended he
was walking along, doing stretches, when he was approached by Ms. Young. He claims
Ms. Young made contact first, hitting him around the wrist, and that he “deflected her
wrist.” At that point, appellant claims Mr. Buchanan came “running straight at [him] in a
dead run ... out of the bushes or something,” and that appellant defended himself. The
jury convicted appellant on both counts.
Sentencing
       At sentencing, the court received and reviewed the probation officer’s report as
well as several letters submitted on appellant’s behalf. Two of those letters were
submitted by former jurors in the matter and contained their view that appellant may be
mentally disturbed. The probation officer’s report listed two convictions for robbery
from 1991. The report listed six factors in aggravation for each count: (1) the crime
involved great violence or other acts disclosing a high degree of cruelty, viciousness, or
callousness, in that the victims were attacked without provocation; (2) appellant had
engaged in violent conduct, which indicated a serious danger to society; (3) appellant’s
prior convictions were numerous and of increasing seriousness; (4) appellant had served
two prior prison terms; (5) appellant was on probation when the crime was committed;
and (6) appellant’s prior performance on probation and parole was unsatisfactory. In

                                               4
contrast, the report only identified one potential mitigating factor; that appellant may
have been suffering from a mental or physical condition at the time the crime was
committed. When asked whether there were any corrections to the report, appellant’s
counsel had none.
       Appellant’s counsel argued two points. First, counsel asked the court to consider
appellant’s mental state as a mitigating factor. Counsel identified two notes in the
probation report relating to this issue, along with referencing the mental evaluation done
prior to trial. Counsel noted that appellant may have been suffering from a mental
condition when the crimes were committed and confirmed the previous mental evaluation
“indicated he likely has some mental health disorders, but did not address whether those
disorders could be effectively treated to mitigate the risk [appellant] poses to society.”
Second, counsel argued that appellant’s sentences should run concurrently, as opposed to
consecutively. In doing so, counsel confirmed that at least one sentence would carry a
term of 25 years to life. Counsel made no motion to strike one of appellant’s prior strikes
for the purpose of sentencing.
       The People argued for the recommended sentence. The prosecutor argued
appellant’s criminal threats prior (case No. CRF39951) was also a three strike case,
making this his fourth strike, and contended appellant was given the benefit of the doubt
at that time, only to reoffend. The prosecutor then specifically argued that appellant was
properly sentenced under the three strikes law in this instance. Appellant’s counsel did
not object to the argument that this would be appellant’s fourth strike.
       The trial court found both counts should be aggravated. In doing so, the court
relied on each of the six aggravating factors contained in the probation report. While
discussing appellant’s prior convictions, the trial court noted it was unaware of the
circumstances of appellant’s prior “robbery convictions” but stated the “robbery
conviction” was in the 1990’s.



                                              5
       The court also discussed appellant’s mental state. The trial court referenced Dr.
Cavanaugh’s prior evaluation, stating appellant was found “capable of understanding the
nature of the charges that he was facing, and he had the ability to cooperate with
counsel.” It then noted there was no evidence contradicting the finding that appellant
was competent to stand trial or showing that appellant suffers from a mental illness
constituting a defense to the crimes he committed. The trial court ultimately concluded
that if “there was a condition that [appellant] suffered from that he should have been
treated for, it was unfortunate that the treatment did not occur before the date of this
offense.” The court continued, “[w]hile the Court has thought about that, I don’t think it
mitigates in favor of a lesser recommendation than that submitted by the probation
department.” Appellant’s counsel did not mention the prior finding of incompetence to
the trial court, despite the trial and sentencing judge being different from the judge that
declared appellant incompetent.
       The trial court then imposed appellant’s sentence in case No. CRF41410, found
appellant had violated his probation in case No. CRF39951, and sentenced appellant for
the violation. Before concluding the proceedings, the trial court addressed appellant and
his sentence, stating in part: “This is a lengthy sentence, the lengthiest sentence I have
imposed since I have been on the bench. It is the only case I feel it is justified.”
       This appeal timely followed.




                                              6
                                      DISCUSSION
       Appellant contends that he received ineffective assistance of counsel at his
sentencing for two partially related reasons: (1) counsel’s failure to make a Romero3
motion to strike one or more of his prior serious felonies, and (2) counsel’s failure to
object that appellant’s sentence constitutes cruel and unusual punishment under
California or federal law.
Standard of Review and Applicable Law
       To establish ineffective assistance of counsel, appellant must show that counsel’s
performance “fell below an objective standard of reasonableness” and that “there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” (Strickland v. Washington (1984) 466 U.S. 668,
688, 694 (Strickland).) “A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” (Id. at p. 694.)
       “‘Tactical errors are generally not deemed reversible; and counsel’s
decisionmaking must be evaluated in the context of the available facts. [Citation.] To
the extent the record on appeal fails to disclose why counsel acted or failed to act in the
manner challenged, we will affirm the judgment “unless counsel was asked for an
explanation and failed to provide one, or unless there simply could be no satisfactory
explanation.”’” (People v. Hart (1999) 20 Cal.4th 546, 623-624.) “In making the
determination whether the specified errors resulted in the required prejudice, a court
should presume, absent challenge to the judgment on grounds of evidentiary
insufficiency, that the judge or jury acted according to law.” (Strickland, supra, 466 U.S.
at p. 694.)




3      People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).


                                               7
Counsel was Not Ineffective in Failing to Make a Romero Motion
       Appellant argues that his counsel was ineffective in failing to make a Romero
motion or otherwise developing a factual record that would support a Romero motion.
We disagree.
       In Romero, the California Supreme Court held that trial courts have discretion to
dismiss or strike allegations of prior felony convictions. (Romero, supra, 13 Cal.4th at
pp. 529-530.) “[I]n 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 ... section 1385[, subdivision ](a), or in reviewing such
a ruling, the court in question must consider whether, in light of the nature and
circumstances of his present felonies and prior serious and/or violent felony convictions,
and the particulars of his background, character, and prospects, the defendant may be
deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as
though he had not previously been convicted of one or more serious and/or violent
felonies.” (People v. Williams (1998) 17 Cal.4th 148, 161.)
       The analysis whether an offender may be deemed outside the spirit of the law is a
stringent one. (People v. Carmony (2004) 33 Cal.4th 367, 377 (Carmony).) And there is
a strong presumption that any sentence that conforms to the three strikes law’s sentencing
scheme is rational and proper. (Carmony, supra, at p. 378.) “Because the circumstances
must be ‘extraordinary ... by which a career criminal can be deemed to fall outside the
spirit of the very scheme within which he squarely falls once he commits a strike as part
of a long and continuous criminal record, the continuation of which the law was meant to
attack’ [citation], the circumstances where no reasonable people could disagree that the
criminal falls outside the spirit of the three strikes scheme must be even more
extraordinary.” (Ibid.)
       Appellant contends counsel’s failure to make a Romero motion in this case fell
below an objective standard of reasonableness for a competent attorney. In particular,

                                              8
appellant argues counsel failed to correct inaccurate statements in the probation report, by
the prosecutor, and by the trial court that appellant had two prior robbery convictions,
failed to detail the allegedly minimal nature of appellant’s criminal history, failed to
correct statements that appellant’s attack was unprovoked and other related sentencing
comments, and failed to highlight appellant’s mental history. According to appellant,
these failures demonstrate appellant’s counsel had not investigated and was unprepared to
pursue a Romero motion.
       The People respond that we can reject appellant’s argument because appellant’s
counsel may have simply reviewed the record and determined there was no possibility a
Romero motion would be granted. But without substantial factual support, this argument
merely begs the question. If appellant’s counsel had, in fact, completed a full
investigation and chosen not to move to strike one or more of appellant’s strikes, the
People’s argument would hold. But it is equally true that appellant’s counsel would have
been deficient for failing to investigate the relevant underlying facts, thus choosing not to
object out of ignorance. (See In re Brown (2013) 218 Cal.App.4th 1216, 1223; People v.
Thimmes (2006) 138 Cal.App.4th 1207, 1212-1213.) On this record, where counsel
failed to detail appellant’s history of mental illness outside of a vague reference to a
competency finding contained in the probation report, failed to correct the “fourth strike”
comment from the prosecution or note the error in the probation report, and failed to
disclose any mitigating details related to the prior strikes, we cannot confidently state that
there is a satisfactory explanation for why counsel did not make a Romero motion.
       However, even if counsel’s performance was deficient, we find appellant fails to
satisfy the second Strickland prong because there was no prejudice. Although
colloquially referred to as a motion, the authority to strike a prior under Romero is within
the inherent authority of the court and requires no motion to exercise. (Carmony, supra,
33 Cal.4th at p. 376.) Appellant concedes the court was aware of its authority under the
Romero doctrine and the record shows that the prosecutor noted the court’s authority to

                                              9
dismiss a prior and expressly argued against its doing so in this case. When discussing
appellant’s mental history, the trial court confirmed that it had thought about appellant’s
potential history of mental illness, but expressly rejected that as a basis for reducing
appellant’s sentence. Then, after imposing sentence, the trial court clearly articulated its
satisfaction with the length of the sentence. On this record, our confidence in the
judgment is not undermined by the alleged failures of counsel.
       We do not find appellant’s arguments as to prejudice persuasive. Whether or not
appellant had one or two prior convictions for robbery,4 there is no indication in the
record that the trial court relied on this fact in imposing its sentence. While the trial court
referred to appellant’s “convictions” at one place in the record, it immediately thereafter
referred to “the robbery conviction” in noting that the relevant conviction occurred in the
1990’s. There is no dispute that only one robbery conviction was alleged in the
information and the trial court does not affirmatively rely on the alleged second robbery
conviction for any purpose. Similarly, the facts of that conviction appear irrelevant to the
trial court’s analysis, undercutting appellant’s argument that counsel’s failure to argue
those facts was prejudicial. The trial court acknowledged that it knew little of the
robbery conviction but expressly treated it as a minor conviction by noting that
appellant’s continued criminal history was increasing in violence.
       Likewise, the lack of additional information or argument about appellant’s mental
state does not suggest the trial court would have granted a Romero motion. The trial
court considered appellant’s mental state with respect to the current crimes and did not
find that factor persuasive in mitigation. While it is true that the sentencing judge was

4       It appears from the transcripts in case No. CRF39951 that appellant has suffered
only one prior robbery conviction and that the prosecutor knew or should have been
aware of this fact from prior research. The specific records to confirm this fact were not
before the trial court. The trial court’s analysis, however, is sufficient for us to conclude
that the judgment would not have changed regardless of the specific number of robbery
convictions.


                                              10
not involved in the original determination that appellant was mentally incompetent and
was not presented with argument or evidence of that initial finding, there is no reason to
believe the court’s ruling would have changed with additional information or more
forceful argument. As detailed above, the trial court’s analysis was predicated on the
length and increasing severity of appellant’s criminal history, regardless of any mental
health issues. In this analysis, the court considered the possibility appellant had a mental
disorder and yet ultimately concluded, based on the criminal history evidence before it,
that appellant deserved the lengthiest punishment the trial court had yet imposed. Given
the overall review of facts undertaken by the trial court, we conclude the lack of
additional evidence or argument on appellant’s mental state was not prejudicial. (People
v. Carrasco (2008) 163 Cal.App.4th 978, 993-994 [“Given the court’s express
consideration of [the] appellant’s background and character in ruling on the motion, that
portion of its remarks quoted by [the] appellant seems to us to be an acknowledgement
that the court could not give undue weight to an inherently speculative argument that
[the] defendant’s mental state ‘made him do it.’”].)
       Appellant’s remaining argument that the criminal conduct supporting his latest
convictions was a border-line offense triggered by the victim’s conduct, is simply a
reargument of the ultimate balancing made by the trial court when determining that
appellant’s lengthy and continued criminal history supported the ultimate sentence
imposed. The facts support the trial court’s conclusion that the sentence was proper.
Given that we presume the court acted in accordance with the law (Strickland, supra, 466
U.S. at p. 694), and may not order a prior conviction struck merely because we might
reach a different conclusion than the trial court (Carmony, supra, 33 Cal.4th at p. 377),
we do not conclude the lack of more forceful argument was prejudicial.
       Although appellant suffers from some form of mental illness, the trial court could
properly find appellant has a long and increasingly violent criminal history warranting a
three strikes sentence. This is therefore not one of those even more extraordinary cases

                                             11
that demonstrate appellant is outside of the spirit of the three strikes law. (People v.
Philpot (2004) 122 Cal.App.4th 893, 907.) As appellant suffered no prejudice, counsel’s
assistance was not ineffective.
Counsel was Not Ineffective in Failing to Object on Constitutional Grounds
       Relying on the failure of counsel to move to strike his prior convictions, appellant
also contends that counsel was ineffective for not objecting that his sentence was
disproportionate to the offenses for which he was convicted, resulting in cruel and
unusual punishment. We disagree. As succinctly explained in People v. Cluff (2001) 87
Cal.App.4th 991, 997, appellant is being punished not just for the crime he committed,
but for his recidivism. A “punishment imposed under California’s Three Strikes law is
not so disproportionate that it violates the prohibition against cruel or unusual
punishment.” (Ibid.) No prejudice arose when counsel failed to object to appellant’s
sentence, properly imposed under the guidelines of the three strikes law, on the grounds
that it constituted cruel and unusual punishment.
                                      DISPOSITION
       The judgment is affirmed.




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