Filed 6/8/16 P. v. Muschamp CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                      E064035

v.                                                                      (Super.Ct.No. RIF1202091)

MERRILL OSCAR MUSCHAMP,                                                 OPINION

         Defendant and Appellant.




         APPEAL from the Superior Court of Riverside County. Irma Poole Asberry,

Judge. Affirmed.

         Marcia R. Clark, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Teresa

Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.




                                                             1
       Defendant and appellant Merrill Oscar Muschamp appeals from a judgment of

conviction for making criminal threats (Pen. Code, § 422)1 and assault with a deadly

weapon. (§ 245, subd. (a)(1).) The jury also found true a personal use enhancement

alleged under section 12022, subdivision (b)(1). In bifurcated proceedings, the trial court

also found true three prior prison term allegations charged under section 667.5,

subdivision (b), and that defendant had suffered two prior serious or violent felony

convictions within the meaning of the “Three Strikes” law, section 667, subdivisions (c)

and (e)(2)(A), and section 1170.12, subdivision (c)(2)(A).

       Following the latter findings, the trial court denied defendant’s motion to strike

one of the “strike” convictions pursuant to People v. Superior Court (Romero) (1996) 13

Cal.4th 497 (Romero). It then sentenced defendant to a total term of 29 years to life in

state prison. The judgment is affirmed.

                                             I

                                STATEMENT OF FACTS

       Defendant resided in a home along with his mother, a married couple, and the

victim and her toddler daughter. One morning the child’s mother brought her downstairs

for breakfast. The baby was crying and defendant cursed at her to be quiet—“shut the

fuck up.” The child’s mother responded in kind and defendant began moving closer to

her, looking very angry. Defendant threatened to “bust” her head open with a shoe and


       1 All subsequent statutory references are to the Penal Code unless otherwise
specified.


                                             2
then threatened to stab or kill her and fetched a knife from the dishwasher. Defendant

began to approach the victim with the knife held at waist level and pointing forward as he

continued to curse and threaten the victim.

       At this point defendant’s mother intervened and pushed defendant back. The

victim and the married couple then left the house and the victim called police.

       Defendant’s prior “strike” convictions were for assault with a caustic chemical

(§ 244) in 2002 and arson (§ 451, subd. (d)) in 2000. The probation officer reported his

additional criminal history as follows:

       1988 misdemeanor battery (§ 242);

       1989 misdemeanor receiving stolen property (§ 496);

       1990 misdemeanor battery (§ 242) and misdemeanor false identification to a peace

officer (§ 148.9);

       1993 misdemeanor vandalism (§ 594, subd. (a));

       1995 false identification to a peace officer (§ 148.9);

       1996 misdemeanor forgery (§ 475, subd. (a));

       1997 misdemeanor trespassing (§ 602, subd. (l)), obstructing an officer (§ 148),

and vandalism (§ 594, subd. (a));

       2000 misdemeanor obstructing an officer (§ 148);

       2000 felony brandishing a firearm or deadly weapon to obstruct an officer

(§ 417.8) and related charges in one case;

       2002 obstructing an officer (§ 148) and associated charges;



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       2004 felony obstruction of an officer by threats or violence (§ 69);

       2009 felony carrying concealed dirk or dagger (former § 12020, subd. (a)(4));

       1996 felony hit and run (Veh. Code, § 20001);

       2013 infraction wrong-side-of-road vehicle (Veh. Code, § 21650.1).

       The probation officer’s report also reflected that with respect to the 1996

conviction for forgery, defendant’s probation was once revoked but reinstated. The 1997

trespassing conviction also resulted in a revocation and reinstatement. For the 2000

felony brandishing, repeated violations of probation eventually resulted in a prison

commitment to be concurrent with the term imposed for the 2004 caustic chemical

conviction. Following his parole, he was five times returned to custody. Defendant had

also twice violated probation in the hit-and-run case.

       In his Romero motion, defendant stressed that no one was injured and that the

victim did not retreat until late in the incident. He pointed out that his “strikes” were 13

and 15 years old.

       The motion also asserted (without any actual evidentiary support) that defendant’s

misconduct was primarily due to the murder of his twin brother in 1998,2 at which time

he began using controlled substances that “exacerbated an otherwise controlled mental

health condition.” Defendant had been “eager and motivated to get the appropriate

treatment” but had difficulties doing so due to his custodial placement. After the caustic

       2 At the hearing on the Romero motion, as defense counsel began to speak,
defendant interjected, “He wasn’t murdered.” After speaking with defendant, defense
counsel altered his language to “passed away.”


                                              4
chemical incident (which is described as if defendant was unaware that the liquid he

flung at the victim was in fact caustic), defendant has “struggled with and succumbed to

his addiction . . . which has resulted in his subsequent convictions.”

                                              II

                                       DISCUSSION

       A. Cruel and Unusual Punishment3

       Both the Eighth Amendment to the United States Constitution and article 1,

section 17 of the California Constitution prohibit cruel and/or unusual punishment.4

       As defendant argues, the subject clauses prohibit punishment which is

disproportionate to a defendant’s personal responsibility and moral culpability. (Enmund

v. Florida (1982) 458 U.S. 782, 801.) However, states are permitted to enact harsh

statutes directed at the recidivist who cannot, or will not, bring his or her conduct within

social norms. (Rummel v. Estelle (1980) 445 U.S. 263, 284-285 (Rummel).) Under the

federal Constitution, noncapital sentences are subject only to a narrow proportionality

review, if any. (See Ewing v. California (2003) 538 U.S. 11, 23 (Ewing); see also conc.

opn. of Thomas, J. at p. 32.) In Ewing, a case arising out of California’s Three Strikes


       3  As the People point out, the argument that a sentence constitutes cruel and/or
unusual punishment may be deemed waived if not raised in the trial court. However, to
forestall any claim of ineffective assistance of counsel, we will address the issue on its
merits. (See People v. DeJesus (1995) 38 Cal.App.4th 1, 27.)

       4  The federal Constitution is framed in the conjunctive, the state provision in the
disjunctive, but our Supreme Court has not construed the state provision as creating a
different or broader definition. (See In re Alva (2004) 33 Cal.4th 254, 291.)


                                              5
law, the court held that a sentence of 25 years to life imposed on a shoplifter with prior

convictions for burglary and robbery was not “grossly disproportionate” so as to

implicate the constitutional prohibition, given the defendant’s long criminal history.

(Ewing, supra, at pp. 28-31.)

       Almost concurrently, the high court decided Lockyer v. Andrade (2003) 538 U.S.

63 (Andrade), which involved a defendant convicted of petty theft with a prior and

sentenced as a third striker due to three prior residential burglary convictions. (Andrade,

supra, at p. 68.) The court held that the California appellate decision rejecting an Eighth

Amendment challenge neither contradicted nor unreasonably applied clearly established

federal law as determined by the Supreme Court, and was therefore not subject to

reversal. (Andrade, at pp. 77.)

       Defendant argues that Ewing and Andrade do not control here because the

defendants in those cases had more serious criminal history than he does. Even if we

accepted this position, it is clear that any proportionality review under the federal

Constitution is limited in scope. Defendant here had a prior felony conviction for actual

violence (the caustic liquid assault) as well as numerous other convictions for assaultive

or threatening conduct. He has repeatedly failed to follow probation or parole

requirements and has shown no ability whatsoever to conform to social norms and

expectations. Given the recognition in Rummel that a state may apply harsh measures to

incorrigible recidivists, the sentence does not violate the federal Constitution.




                                              6
       Under California law defendant fares no better. In this state, a “proportionality”

review begins with the three-pronged test set out in In re Lynch (1972) 8 Cal.3d 410, 425-

427, which focuses on the nature of the offense and the offender, the punishment for

more serious crimes in the same jurisdiction, and punishment for the same offense in

other jurisdictions. As to the latter factor, defendant provides no information. And while

it is true that a serious crime of violence such as second degree murder gives rise only to

a 15-year-to-life term, this ignores the recidivism factor which, as we have noted, is a

valid legislative concern. And we simply disagree with defendant that the sentence is

unconstitutionally severe as to him, again relying on his past criminal history and failure

to reform. Sentencing under the Three Strikes law has been upheld against such a

challenge with respect to less serious current conduct, and is fully justified given

defendant’s armed assault on the victim here. (See In re Coley (2012) 55 Cal.4th 524,

561-562; People v. Nichols (2009) 176 Cal.App.4th 428, 435-437 [holding a three strikes

life term not grossly disproportionate for a deliberate failure to register under former

section 290]; People v. Goodwin (1997) 59 Cal.App.4th 1084, 1093-1094 [where the

court reached the same conclusion as to a defendant whose current offense was

essentially a shoplifting burglary].)

       B. Motion to Strike

       Defendant then argues that the court should have granted his motion to strike and

sentenced him only as a second striker, in which position he could have received a term

of at least 10 years. He acknowledges that the trial court’s discretion in this respect is



                                              7
very broad. (People v. Humphrey (1997) 58 Cal.App.4th 809, 813.) A trial court’s

refusal to strike a “strike” prior will only be reversed if it is clear that the defendant

simply does not fall within the spirit of the three strikes scheme and intent. (People v.

Williams (1998) 17 Cal.4th 148, 161; People v. Leonard (2014) 228 Cal.App.4th 465,

502.) Although we might agree with defendant that, in the words of Van Halen, “I ain’t

the worst that you’ve seen,”5 his consistent pattern of behavior ranging from the

obstreperous to the violent keeps him well within the proper scope of the Three Strikes

law.

                                               III

                                        DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                                   McKINSTER
                                                                                    Acting P. J.
We concur:



MILLER
                            J.



SLOUGH
                            J.


       5 Quote from “Jump” by Van Halen
<https://www.google.com/#q=might+as+well+jump+lyrics>.


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