Filed 8/30/13 P. v. Ortiz CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D061385

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCS250717)

PEDRO JOSE ORTIZ,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Francis M.

Devaney, Judge. Affirmed.

         FARMANI, Tony Faryar Farmani, under appointment by the Court of Appeal, for

Defendant and Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Laura A.

Glennon, Deputy Attorneys General, for Plaintiff and Respondent.

         Pedro Jose Ortiz pled guilty to residential burglary and admitted three prior prison

terms and seven strike prior convictions. Based on his strike priors, he received a
sentence of 25 years to life. He asserts his sentence constitutes cruel and unusual

punishment, and the trial court abused its discretion in declining his request to dismiss his

strike priors. We find no error and affirm.

                   FACTUAL AND PROCEDURAL BACKGROUND

       According to the facts set forth in the probation report, at about 1:15 p.m. on

August 24, 2011, defendant and an accomplice (Emmanuel Hernandez) committed a

burglary at the home of Ky Nguyen while Nguyen was not at home. A neighbor saw

defendant and Hernandez park a vehicle in front of Nguyen's residence and jump the

fence into the property. The men attempted to open a sliding window at the rear of the

residence. Defendant removed the window screen and pried at the window with a

screwdriver. He then placed his hands into the residence, grabbed the window, and

attempted to fully open it. Witnessing this conduct, the neighbor summoned the police.

The police found the broken screen on the ground by the window, and saw that a stick

prevented the sliding window from being fully opened.

       Defendant and Hernandez attempted to flee the area, but they were apprehended

by the police. The neighbor identified defendant and Hernandez as the suspects.

Defendant and Hernandez denied they were engaging in a burglary. Hernandez told the

police he and defendant were installing carpets. Defendant told the police he was in the

area visiting friends; he did not know Hernandez; and the car in front of the residence

was not his. Contradicting defendant's statements, defendant's and Hernandez's cell

phones showed they made calls to each other and a ticket in defendant's possession

showed he had been cited in the car.

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       Defendant was charged with first degree residential burglary (Pen. Code, §§ 459,

460), with enhancement allegations for three prior prison terms and seven strike prior

convictions. On October 26, 2011, he pled guilty to the charged offense and the

enhancement allegations.

       At sentencing, the court dismissed defendant's three prison priors, but declined to

dismiss his strike priors. Based on the Three Strikes law, defendant was sentenced to 25

years to life.

                                        DISCUSSION

       To evaluate defendant's challenges to his 25-years-to-life sentence, we first

summarize the information in the record concerning his criminal history and personal

characteristics, plus the trial court's reasons for declining to dismiss his strike priors.

                                        I. Background

       The probation report shows that defendant pled guilty to committing seven

residential burglaries over a five-month period in 2005 when he was 20 years old; i.e., on

May 27, June 1, June 28, August 19, October 27 (two offenses), and November 2.1

Defendant told the probation officer that he committed these prior offenses by entering

the residences through a window. A police report for the May 27 burglary states that

defendant entered the residence through a patio door and ransacked and stole jewelry

from the master bedroom while the bedroom occupants were not at home, but while other

family members were asleep in other bedrooms. For the June 1 burglary, defendant


1      These residential burglaries were alleged as strike priors, except for the November
2 offense.
                                               3
admitted that the offense was a violent felony because a person was at the residence, and

he also pled guilty to assault with a deadly weapon with personal use of a deadly or

dangerous weapon. According to the prosecutor's sentencing memorandum, during this

June offense defendant assaulted the victim with a knife.2

       Defendant pled guilty and was sentenced for these prior offenses at proceedings

held in 2006, 2007, and 2008. It appears that he was in prison continuously from 2006 to

April 2011. At his first sentencing proceeding on March 29, 2006, he was sentenced to

six years in prison for his June 1, 2005 burglary and assault offenses, which constituted

his first prior prison term and his first two strike prior convictions. On this same date he

received a concurrent four-year term for his August 2005 burglary offense, which was his

third strike prior. Several months later, in December 2006, he received two concurrent

two-year terms for his June 28 and November 2, 2005 burglaries, with the June 28

offense being his fourth strike prior. On July 24, 2007, he received a two-year term for

his October 27, 2005 burglary, which was his second prison prior and fifth strike prior.

On September 14, 2007, he received a concurrent two-year term for his second October

27, 2005 burglary, which was his sixth strike prior. On April 17, 2008, he received a




2       Defendant told the probation officer that during this June offense he was in
possession of a screwdriver, and he fled when the victim arrived home as he was leaving
the residence with jewelry.

                                              4
two-year term for his May 2005 burglary, which was his third prison prior and seventh

strike prior.3

       When defendant was sentenced in December 2006 and thereafter, he could have

received a 25-ye ars-to-life term under the Three Strikes law because he had incurred the

required two strike prior convictions as of March 29, 2006. Instead, he received two-year

determinate terms at all of the sentencing proceedings after March 2006. Thus, it appears

the trial court exercised its discretion to dismiss strike priors on multiple sentencing

occasions before the current sentencing proceeding.

       Defendant was paroled from prison on April 27, 2011. Four months later, on

August 24, 2011, at age 26 and still on parole, he committed the current residential

burglary at Nguyen's residence.

       When interviewed by the probation officer for the current offense, defendant said

he began smoking marijuana at age 10 and methamphetamine at age 16, and he began

consuming alcohol at age 15. He stated he had "a previous addiction" to marijuana and

methamphetamine; he smoked methamphetamine on a daily basis; he last smoked the

drugs at age 19; and his residential burglaries "were directly related to his drug

addiction." He stated he had an alcohol addiction, and "last consumed a twelve pack of

12 ounce beers on the weekends at the age of 19." Defendant told the probation officer




3      The probation report lists several additional offenses that defendant committed in
2005, including receiving stolen property on June 10, 2005, and evading a police officer
and vehicle theft on December 4, 2005. For these offenses, he was granted probation and
received a jail sentence on December 19, 2005, and February 3, 2006, respectively.
                                              5
that he knew he " 'did wrong' " and he hoped the court would give him a 12-year

sentence.

       Prior to sentencing, defendant requested that the trial court dismiss his strike

priors. Defendant argued the offense did not involve a threat of violence; he did not use a

weapon; no one was at home or injured; no property was taken; he did not resist the

officers; and he acknowledged wrongdoing early in the proceedings by pleading guilty.

He asserted that his many years of substance addiction gave rise to his lengthy history of

"theft," and he has not participated in a drug treatment program. He stated that after he

was released from prison he found employment, was helping his family financially, and

was attending church. He wrote a letter to the court expressing his remorse and desire to

change. He submitted numerous letters of support from family members, his employer,

and his pastor corroborating his claims that he was hardworking, helpful to his family,

attending church, and deserving of another chance to succeed in life. He requested that

the court impose a determinate term of 15 years or less.4

       In opposition, the prosecutor argued that even if defendant suffered from drug

addiction, his strike priors should not be dismissed because he was a "prolific residential

burglar" and "[t]hree separate prison sentences for residential burglary have failed to

deliver the message to Defendant that society will not tolerate residential burglary."




4       Under the sentence requested by defendant, the court would have dismissed all but
one of his strike priors, and given him a 12-year term for the residential burglary (double
the six-year upper term based on one strike prior) plus three years for his three prison
priors.
                                              6
       The court concluded it was not appropriate to dismiss the strike priors. The court

stated defendant had incurred seven strike priors, which included repeated instances of

residential burglary committed over a six-month period, and then four months after being

released from prison he committed the current offense by engaging in a residential

burglary. The court noted that with one exception defendant had not engaged in violence

during his offenses, but nevertheless in residential burglary the "potential for violence is

so real" and "[e]veryone's worst nightmare is to be in their home when someone breaks

in." Further, the current residential burglary was not a "minimal offense"; defendant

would have entered the home and stolen things but for the resident placing a stick in the

window; and "[w]ho knows if the person came home, what would have happened."

       With respect to the drug addiction issue, the court stated the evidence presented to

the court showed that at the time of the offense defendant was hard working and earning

money for his family. There was no evidence he was "broke and strung out" and had a

current habit that he was trying to support and that caused him to engage in aberrant

criminal behavior; rather the record showed he "likes to break into people's homes and

steal things." The court concluded defendant had not learned from his prior experience

with the criminal justice system, and he was clearly a repeat offender targeted by the

Three Strikes law.

       After he was sentenced, defendant requested that the court recall the sentence and

resentence him, arguing that under the circumstances of his case the 25-years-to-life

sentence was cruel and unusual punishment. He submitted a report from a psychologist

(Dr. Francisco Gomez) who examined him after sentencing. Defendant told Dr. Gomez

                                              7
that after his release from prison he started using methamphetamine again on a daily

basis; he did not earn enough money from his employment to support his drug habit; and

he started committing residential burglaries to support his habit until he was arrested for

the current offense. Dr. Gomez stated defendant has a significant alcohol and drug abuse

problem; he has attempted to quit using drugs and alcohol on several occasions but has

never received treatment; and he does not suffer from antisocial traits and his burglaries

appeared to be drug related.

       After conducting a hearing and considering the parties' arguments, the trial court

declined to recall the sentence. The court reiterated that defendant had incurred seven

strike priors, six of which were for residential burglary; he had been "to prison and out";

and he "continues to reoffend."

                                        II. Analysis

       Defendant argues (1) his indeterminate life sentence is unconstitutional cruel and

unusual punishment, and (2) the trial court abused its discretion in declining to dismiss all

but one of his strike priors so as to give him a determinate 15-year sentence rather than a

25-years-to-life sentence. (See fn. 4, ante.) In support, he asserts his current offense did

not involve any threat, assault, weapon, physical injury, taking of property, or police

resistance; his past offenses did not involve violence or injury; he accepted responsibility

by pleading guilty; and he has an untreated drug addiction problem that has motivated his

commission of burglary.




                                              8
                            A. Cruel and Unusual Punishment

       A sentence violates the constitutional proscription against cruel and/or unusual

punishment if the punishment is grossly disproportionate to the severity of the crime, or it

shocks the conscience and offends fundamental notions of human dignity. (Ewing v.

California (2003) 538 U.S. 11, 21; People v. Hines (1997) 15 Cal.4th 997, 1078.) When

evaluating the constitutionality of a punishment, the court examines the circumstances of

the offense, including motive, extent of the defendant's involvement, manner in which the

crime was committed, and consequences of the defendant's acts, as well as the

defendant's personal characteristics, including age, prior criminality, and mental

capabilities. (Hines, supra, at p. 1078.)

       When punishment is imposed under the Three Strikes scheme, the defendant is not

being punished merely for the most recent offense, but also for recidivism. (People v.

Mantanez (2002) 98 Cal.App.4th 354, 366.) Extended punishment under the Three

Strikes law can justifiably be imposed on defendants who repeatedly commit felonies

without running afoul of the constitutional proscription against cruel and unusual

punishment. (Ewing v. California, supra, 538 U.S. at pp. 29-30.) However, a defendant

may prevail on a cruel and unusual punishment challenge if the "current offense bears

little indication [the defendant] has recidivist tendencies to commit felonies that pose a

risk of harm to the public." (People v. Carmony (2005) 127 Cal.App.4th 1066, 1080; see

In re Coley (2012) 55 Cal.4th 524, 531.) On appeal, we resolve factual disputes in favor

of the judgment, and independently review the issue of constitutionality. (People v.



                                              9
Mantanez, supra, 98 Cal.App.4th at p. 358; see In re Coley, supra, 55 Cal.4th at pp. 560-

561.)

        Defendant has a clear pattern of recidivism involving the repeated commission of

the highly serious offense of residential burglary. Residential burglary is recognized as

an offense that poses a substantial risk to human life because of " 'the danger that the

intruder will harm the occupants in attempting to perpetrate the intended crime or to

escape and the danger that the occupants will in anger or panic react violently to the

invasion, thereby inviting more violence.' " (People v. Estrada (1997) 57 Cal.App.4th

1270, 1281.) The fact that a residential burglary is committed under fortuitous

circumstances where no one is at home and no one is actually injured does not detract

from the highly invasive and risk-fraught nature of the crime. Defendant committed a

large number of residential burglaries in 2005, was in prison until 2011 for these

offenses, and four months after his release again engaged in residential burglary. The

fact that he chose to repeat the very same offense for which he had just served a

substantial period of prison confinement demonstrates that he is a recidivist offender for

whom a 25-years-to-life term is not grossly disproportionate.

        Defendant's personal characteristics also do not reflect that an indeterminate life

sentence is grossly disproportionate. Although he has a history of drug addiction, this is

not a case involving a shocking imposition of punishment on a defendant who committed

a relatively innocuous offense to support a drug habit. Defendant has persisted in

committing an offense that violates the sanctity of people's homes, and regardless of his



                                              10
motivation for doing so, a lengthy term of punishment for his relentless pursuit of this

crime is not shocking to the conscience.

       Further, prior to the current imposition of the life sentence, defendant was

repeatedly afforded leniency by the sentencing courts when they dismissed his strike

priors arising from his protracted residential burglary spree in 2005. Notwithstanding

this lenient treatment of his 2005 residential burglaries, when defendant was released

from prison in 2011 he promptly committed another residential burglary. Under these

circumstances, he cannot prevail on a claim that it is cruel and unusual to sentence him

harshly as a recidivist.

       To support his claim of unconstitutionality, defendant argues his 25-years-to-life

sentence greatly exceeds the sentencing range applicable to residential burglary; it is

more severe than the punishment imposed for many violent and serious crimes; and it

equates with the punishment imposed for extremely violent crimes such as first degree

murder. This contention is unavailing because defendant's lengthy term of imprisonment

is not merely for one instance of residential burglary, but also for his recidivist conduct of

engaging in the same serious offense notwithstanding his numerous previous convictions

and punishments. (See People v. Romero (2002) 99 Cal.App.4th 1418, 1433.)

       Defendant's sentence of 25 years to life is not cruel and unusual punishment.

                  B. Discretionary Decision Not To Dismiss Strike Priors

       A trial court has the discretion to dismiss a strike prior conviction if, in light of the

nature and circumstances of the current and prior felony convictions and the particulars

of the defendant's background, character, and prospects, the defendant is deemed outside

                                              11
the spirit of the Three Strikes law in whole or in part. (People v. Williams (1998) 17

Cal.4th 148, 161.) However, "the three strikes law . . . establishes a sentencing norm,

[and] carefully circumscribes the trial court's power to depart from this norm and requires

the court to explicitly justify its decision to do so . . . . [T]he law creates a strong

presumption that any sentence that conforms to these sentencing norms is both rational

and proper." (People v. Carmony (2004) 33 Cal.4th 367, 378.)

       On appeal, we review the trial court's decision for abuse of discretion. (People v.

Carmony, supra, 33 Cal.4th at p. 374.) The burden is on the defendant to clearly show

the sentencing decision was "so irrational or arbitrary that no reasonable person could

agree with it." (Id. at pp. 376-377.)

       For the same reasons as set forth above, defendant has not shown the trial court

abused its discretion in declining to dismiss his strike priors. The trial court reasonably

concluded that defendant was not outside the spirit of the Three Strikes law because he

was imprisoned for approximately five years for his five-month spree of residential

burglaries in 2005, and within four months of his release from prison he committed the

exact same offense. Further, the trial court reasonably found that his drug addiction

history did not warrant a determinate rather than indeterminate term given that his

previous receipt of a more lenient determinate term did not suffice to teach him that he

should not engage in residential burglary regardless of any drug addiction.

       There was no abuse of discretion.




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                                 DISPOSITION

     The judgment is affirmed.




                                               HALLER, Acting P. J.


WE CONCUR:



MCINTYRE, J.



O'ROURKE, J.




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