Filed 8/27/13 P. v. Coneal CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT

THE PEOPLE,                                                          H037716
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. CC960238)

         v.

LATHAN ALLEN CONEAL,

         Defendant and Appellant.


         A jury convicted defendant Lathan Allen Coneal of residential burglary (Pen.
Code, §§ 459, 460)1 and found he had committed two previous serious or violent felonies
(§ 667, subd. (e)(2)). The trial court sentenced defendant to a total of 35 years to life in
prison pursuant to California’s “Three Strikes” law,2 consisting of 25 years to life for
committing a third felony, consecutive to two determinate terms of five years each for his
previous serious or violent felonies. (§ 667, subds. (a), (e)(2)(A)(ii).) Defendant
challenges his sentence, arguing it constitutes cruel and unusual punishment in violation
of the Eighth Amendment to the United States Constitution and cruel or unusual
punishment in violation of article I, section 17 of the California Constitution. He also
challenges the imposition of a restitution fine, a criminal justice administration fee, and

         1
          Unspecified statutory references are to the Penal Code.
         2
          Section 667, subdivision (e)(2)(A)(ii), states, in relevant part: “[I]f a defendant
has two or more prior serious and/or violent felony convictions as defined in subdivision
(d) that have been pled and proved, the term for the current felony conviction shall be an
indeterminate term of life imprisonment with a minimum term of [¶] . . . (ii) . . . 25
years.”
an order that he pay victim restitution. For the reasons stated here, we will affirm the
lower court’s judgment.
             I.       FACTUAL AND PROCEDURAL BACKGROUND
       In the early morning of November 3, 2009, defendant burglarized a townhouse on
Cypress Point Court in San Jose. At the time, John Kapelowitz and Diane Roberge lived
in the house and were sleeping in separate bedrooms on the second floor. Roberge awoke
when she felt someone bump the side of her bed. She looked up and saw defendant
crouched on the opposite side of her bed with just the top of his head visible. Realizing a
stranger was in her room, Roberge began screaming as loud as she could and defendant
put his hands out, motioned, and said “don’t scream.” Defendant then bent down, picked
up something Roberge later confirmed was her laptop, and fled.
       Kapelowitz woke up at the sound of Roberge’s screaming and quickly went to
Roberge’s room. After calling the police, Kapelowitz surveyed the townhouse to see
what was missing. He discovered his laptop computer and its case were missing, as well
as his Blackberry cellular phone and Roberge’s laptop. He also noticed one black glove
that he did not recognize near the stairs on the first floor.
       Meanwhile, San Jose Police Department Officer Steven Valentine was responding
to another call in the area when he heard a blood curdling scream and went on foot in the
direction of the scream. As he walked, Officer Valentine noticed defendant walking
briskly from an alley. Defendant was the only person in sight and had a glove on one of
his hands.
       As defendant attempted to enter another residence, Officer Valentine identified
himself as a police officer and told defendant to stop. At that point, defendant threw
several items, including a laptop, into some bushes and ran. Officer Valentine pursued
on foot until defendant climbed over a fence and out of view.
       Officer Valentine and other officers eventually found defendant in an attic after
noticing a missing vent grate on the side of a residence. Police also found one black
glove and a black beanie in the attic where defendant was hiding. When the officers
searched defendant, they found a battery for a Blackberry cellular phone.
       The police ultimately recovered both laptop computers as well as a laptop case,
but only the laptop belonging to Kapelowitz still functioned. The Blackberry cellular
phone was never recovered. Testing revealed defendant’s DNA on both the glove found
at the location of the burglary and the glove found in the attic where he was arrested.
After the jury convicted defendant of residential burglary and found the existence of two
prior strikes, the trial court sentenced defendant to 35 years to life in prison. The court
also ordered defendant to pay a $10,000 restitution fine (§ 1202.4), $2,600 in restitution
to Roberge for computer repairs and replacement, $639 in restitution to Kapelowitz for
his Blackberry phone, a $129.75 criminal justice administration fee (Gov. Code, §§
29550, 29550.1, 29550.2), as well as other fees not at issue on appeal.
                                 II.        DISCUSSION
       We will divide our discussion between defendant’s constitutional claims and the
claims relating to fines and restitution.
A.     SENTENCE OF 35 YEARS TO LIFE

       Defendant challenges his sentence under both the United States and California
Constitutions.
       1.     Eighth Amendment Prohibition of Cruel and Unusual Punishment

       The Eighth Amendment prohibits “cruel and unusual punishments.” (U.S. Const.,
8th Amend.) When reviewing non-capital sentences to determine whether the sentence is
cruel and unusual, we ask whether the sentence is “grossly disproportionate” to the crime.
(Lockyer v. Andrade (2003) 538 U.S. 63, 73.) Federal courts look to the following
criteria to assist with this determination: “(i) the gravity of the offense and the harshness
of the penalty; (ii) the sentences 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.) A sentence will only be found grossly
disproportionate in “ ‘exceedingly rare’ and ‘extreme’ case[s].” (Lockyer, supra, 538
U.S. at p. 73, quoting Harmelin v. Michigan (1991) 501 U.S. 957, 1001 (conc. opn. of
Kennedy, J.).)
       The United States Supreme Court has previously addressed and rejected an Eighth
Amendment claim related to an individual sentenced to an indeterminate term of 25 years
to life under California’s Three Strikes law in Ewing v. California (2003) 538 U.S. 11
(Ewing). There, the jury convicted the defendant of felony grand theft for stealing three
golf clubs with a total value of $1,197. (Id. at pp. 17-18 (plur. opn. of O’Connor, J.).)
Because of previous serious or violent felonies, the trial court applied the Three Strikes
law and sentenced the defendant to 25 years to life in prison. (Id. at p. 20.) In affirming
the defendant’s sentence, Justice O’Connor’s plurality opinion discussed recidivist
statutes generally and California’s Three Strikes law specifically, noting that “ ‘[s]tates
have a valid interest in deterring and segregating habitual criminals.’ ” (Id. at p. 25,
quoting Parke v. Raley (1992) 506 U.S. 20, 27.)
       Focusing on the first criterion, assessing the gravity of the offense and the
harshness of the penalty, the Ewing court noted that while the theft of three golf clubs
might seem trifling, their value was not insignificant. (Ewing, supra, 538 U.S. at p. 28.)
The Court further observed that harshness cannot be determined in the vacuum of the
most recent offense, but rather must be viewed in the context of a “long history of
recidivism.” (Id. at p. 29.) When viewed in that light, the plurality found no gross
disproportionality. The Court found the sentence to be justified both by the defendant’s
recidivism and California’s public safety interest in incapacitating and deterring
recidivists. (Id. at pp. 29-30.) While California’s Three Strikes law resulted in lengthy
prison sentences, it reflected “a rational legislative judgment, entitled to deference, that
offenders who have committed serious or violent felonies and who continue to commit
felonies must be incapacitated.” (Id. at p. 30.) Because the plurality found no inference
of disproportionality, it affirmed the defendant’s sentence and did not address the other
two criteria.
       Turning to the seriousness of defendant’s offense here, the jury convicted him of
first degree (residential) burglary (§ 460 [burglary of “inhabited dwelling house” is of the
first degree]). Because non-accomplices were present in the townhouse when the
burglary occurred, the offense was per se “serious” and “violent.” (§ 1192.7, subd.
(c)(1)(18); § 667.5, subd. (c)(21).) The jury also found defendant had two prior felony
convictions for residential burglary, both meeting the statutory criteria for serious and
violent felonies.
       Though defendant stresses no one was physically injured during his most recent
burglary, there was a high risk of harm because the townhouse was occupied, with
defendant found inside one victim’s bedroom. While there was no physical injury, the
trial court noted the victims suffered “real and enduring psychological harm” as a result
of the intrusion into their home. Regarding the harshness of defendant’s sentence, we
note the sentence reflects not only this burglary but two previous convictions for the same
crime. Moreover, the lower court observed that the latest burglary was more serious than
the previous ones because there was a greater level of planning and sophistication in its
execution. Based on a consistent history of recidivism, the trial court imposed the
sentence of 35 years to life because incapacitation appeared to be the only effective
method of preventing defendant from re-offending. Just as the plurality recognized in
Ewing, supra, 538 U.S. at p. 25, the sentence in this case furthers California’s legitimate
interest in deterring and segregating habitual criminals. On these facts, we find no gross
disproportionality between defendant’s conviction and his sentence.
       Because we find no inference of disproportionality, we follow the practice of the
plurality in Ewing and do not address the other two criteria.
       2.     Article I, Section 17 Prohibition of Cruel or Unusual Punishment

       Article I, section 17, prohibits “cruel or unusual punishment.” (Cal. Const., art. I,
§ 17.) California courts also use a three-factor test to determine whether punishment “is
so disproportionate to the crime for which it is inflicted that it shocks the conscience and
offends fundamental notions of human dignity.” (In re Lynch (1972) 8 Cal.3d 410, 424.)
To determine defendant’s claim, we analyze: (1) the nature of the offense and the
offender; (2) defendant’s sentence compared with the punishment for different offenses
in California; and (3) defendant’s sentence compared with the punishment for similar
offenses in other jurisdictions. (People v. Martinez (1999) 71 Cal.App.4th 1502, 1510.)
       Our view of the offense and the offender is similar to our preceding Eighth
Amendment analysis and does not favor defendant. The jury convicted defendant of
residential burglary, a serious and violent felony, and found he had two prior strike
convictions for the same crime. The fact that a residential burglary is deemed per se
serious and violent reflects the Legislature’s understanding of the potential for violence
inherent in the offense. (People v. Hughes (2002) 27 Cal.4th 287, 355 [noting burglary
laws recognize danger to personal safety created by risk that intruder will harm occupants
as well as risk that occupants will react violently to the invasion].) As we discuss above,
despite the absence of physical injuries, the lower court found the victims suffered
ongoing psychological harm as a direct result of defendant’s crime. The trial court also
considered defendant’s drug use described in the probation officer’s report, but concluded
that while drug and alcohol addiction can be a mitigating factor in some cases, it did not
mitigate defendant’s conduct here because of his “repeated failure to take action to deal
with his alleged addiction[.]” (See Martinez, supra, 71 Cal.App.4th at p. 1511 [“drug
addiction is not necessarily regarded as a mitigating factor when a criminal defendant has
a long-term problem and seems unwilling to pursue treatment”].) From this, we conclude
the nature of defendant and his offense supported his sentence.
       As to the second factor, comparing defendant’s sentence with the punishments for
other offenses, defendant compares in isolation the sentence for his most recent offense to
crimes that carry heavier sentences, such as first degree murder, which carries an
indeterminate sentence of 25 years to life. (§ 190, subd. (a).) However, the proper
comparison must include “not only his current offenses, but also his recidivism.” (People
v. Cartwright (1995) 39 Cal.App.4th 1123, 1136; see also People v. Sullivan (2007) 151
Cal.App.4th 524, 571.) For example, in Martinez, supra, 71 Cal.App.4th at p. 1512, the
defendant had prior strike convictions for assault with a deadly weapon, robbery, and
attempted robbery. He compared his Three Strikes life sentence for methamphetamine
possession and interference with an executive peace officer to that of a first-time offender
convicted of voluntary manslaughter, urging that the latter would receive a shorter
sentence. The Martinez court noted that the proper comparison is to a “recidivist killer”
whose punishment would be the same as the defendant’s under California’s Three Strikes
law. (Ibid.) Similarly here, the proper comparison is to an offender with two strikes
who, like defendant, commits an additional serious or violent felony. Because that third
felony would trigger the same sentence defendant received for his current burglary
conviction, this factor demonstrates proportionality.
       Defendant focuses particularly on the third Martinez factor, namely that his
sentence in California is far greater than what he would receive in other states for the
same offense. Defendant argues other states impose indeterminate life sentences only for
aggravated felonies, while California allows a life sentence for any third felony.3
Defendant also notes that states such as Louisiana and Oklahoma have “washout” periods
after which prior felonies do not count against a defendant for strike purposes. He argues


       3
         Proposition 36, approved by voters in November 2012 after the filing of
defendant’s opening brief, limits the application of California’s Three Strikes law to
individuals like defendant, whose third strike is serious or violent. (See § 667, subd.
(e)(2)(C) [defining lesser penalty when third felony conviction is not serious or violent].)
this supports a finding that his sentence was cruel or unusual. However, this court has
previously acknowledged this practice in other states and nonetheless affirmed a sentence
under the Three Strikes law. (Martinez, supra, 71 Cal.App.4th at pp. 1514-1517.)
        Finally, defendant points to other states’ sentencing schemes for habitual offenders
and argues they are more lenient for various reasons, including lower maximum
sentences, lower mandatory minimums, and earlier parole eligibility. These same claims
were considered and rejected in Martinez after an exhaustive review of the sentencing
regimes in other states. (Martinez, supra, 71 Cal.App.4th at pp. 1512-1516.) The
Martinez court noted California is actually more lenient than other states in certain
respects. For example, California’s Three Strikes law allows for the possibility of parole,
while antirecidivism laws in other states such as Louisiana and Mississippi do not. (Id. at
p. 1516.) The court also reasoned California’s law is not as draconian as others because
section 1385, subdivision (a), empowers trial courts to strike prior felonies “in
furtherance of justice,” as informed by the spirit of the Three Strikes statute. (Martinez,
supra, at p. 1515, citing People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 504,
529-530.) While the court recognized California’s Three Strikes scheme is one of the
strictest in the nation, it noted the Legislature need not conform to the laws of other states
and has broad authority to set sentences. (Martinez, supra, at p. 1516; see also Ewing,
supra, 538 U.S. at p. 22 [“ ‘courts should be reluctant to review legislatively mandated
terms of imprisonment, and . . . successful challenges to the proportionality of particular
sentences should be exceedingly rare.’ ”], quoting Hutto v. Davis (1982) 454 U.S. 370,
374.)
        We find the reasoning of Martinez persuasive and conclude this third factor does
not support defendant’s argument. Because we do not find defendant’s sentence
excessive, the mere fact that his sentence might be harsher under California law is
unavailing.
       Based on the foregoing reasons, we find defendant’s sentence was not cruel or
unusual.
B.     RESTITUTION FINE (§ 1202.4, SUBD. (B))

       Defendant challenges the imposition of a $10,000 restitution fine based on a
failure to consider defendant’s ability to pay. Defendant relies on Southern Union Co. v.
United States (2012) 567 U.S. __, 132 S.Ct. 2344 (Southern Union), to argue that the
determination of facts affecting the restitution fine amount should have been decided by a
jury. Alternatively, defendant argues that, to the extent his claims are forfeited, his trial
counsel provided ineffective assistance.
       At the time of defendant’s sentencing, section 1202.4, subdivision (b), required the
trial court to impose a restitution fine between $200 and $10,0004 in every felony case
unless “compelling and extraordinary reasons” exist for not doing so. (Former § 1202.4,
subd. (b).) While a defendant’s inability to pay can be considered when increasing a fine
beyond the statutory minimum, it “shall not be considered a compelling and
extraordinary reason not to impose a restitution fine.” (§ 1202.4, subd. (c).) When
determining the amount of the fine, the court must consider “any relevant factors,
including, but not limited to, the defendant’s inability to pay, the seriousness and gravity
of the offense and the circumstances of its commission, any economic gain derived by the
defendant as a result of the crime, the extent to which any other person suffered losses
[tangible or intangible] as a result of the crime, and the number of victims involved in the
crime.” (§ 1202.4, subd. (d).) The court need not conduct a separate hearing to
determine the fine, nor make express findings regarding the factors considered in




       4
          Section 1202.4, subdivision (b)(1) presently calls for the imposition of a felony
restitution fine between $280 and $10,000 and the minimum will increase to $300 as of
January 1, 2014. (§ 1202.4, subd. (b)(1).)
determining the fine. (Ibid.) Indeed, the court may determine the amount of the fine by
formula. (§ 1202.4, subd. (b)(2).)5
       1.     Forfeiture and Southern Union Co. v. United States (2012) 567 U.S. __

       We agree with the People that defendant forfeited most claims on this point by
failing to object during sentencing. (See People v. Nelson (2011) 51 Cal.4th 198, 227.)
We will, however, consider defendant’s claim based on Southern Union because that case
was decided after his sentencing hearing.
       In Apprendi v. New Jersey (2000) 530 U.S. 466, the United States Supreme Court
held that a jury must decide beyond a reasonable doubt any fact that increases a criminal
penalty beyond a statutory maximum. (Id. at p. 490.) In Southern Union, the Court
extended the Apprendi rule to monetary fines. (Southern Union, supra, 567 U.S. at p. __
[132 S.Ct. at pp. 2352, 2357].) Defendant argues the jury should have decided the
amount of the restitution fine because it increased his sentence. This argument was
recently addressed and rejected by the Second District in People v. Kramis (2012) 209
Cal.App.4th 346, 351-352. In Kramis, the court explained that Apprendi and Southern
Union do not apply unless a court imposes a penalty that exceeds a statutory range. (Id.
at p. 351.) Because the trial judge imposed a $10,000 fine in Kramis, the court held the
fine was within the statutory range, did not implicate Apprendi or Southern Union, and
therefore did not need to be decided by a jury. (Id. at pp. 351-352.)
       Like the fine in Kramis, the trial court here exercised discretion within the
statutory range and imposed a $10,000 restitution fine. Although the fine constitutes the
statutory maximum, it does not exceed the maximum and Southern Union therefore does
not apply. Defendant’s argument must fail.


       5
        Section 1202.4, subdivision (b)(2) allows the court to set the fine by multiplying
the minimum fine under Section 1202.4, subdivision (b)(1), times the number of years of
imprisonment, times the number of convicted felony counts. (§ 1202.4, subd. (b)(2).)
        2.     Ineffective Assistance of Counsel

        Defendant argues his trial counsel provided ineffective assistance by failing to
object to the amount of the restitution fine based on defendant’s inability to pay. To
prevail, defendant must show both that his trial counsel’s performance was deficient and
that the deficiency prejudiced defendant. (People v. Ledesma (1987) 43 Cal.3d 171, 216-
217.) To prove prejudice, defendant must affirmatively show a reasonable probability
that, but for his trial counsel’s errors, the result would have been different. (Id. at pp.
217-218.) A reasonable probability is one “ ‘sufficient to undermine confidence in the
outcome.’ ” (Id. at p. 218, quoting Strickland v. Washington (1984) 466 U.S. 668, 693-
694.)
        We need not determine whether trial counsel’s failure to object was defective
because even assuming counsel’s deficient performance, defendant suffered no prejudice.
Had defendant’s counsel preserved an objection to the amount of the restitution fine, the
amount of the fine would be subject to an abuse of discretion standard on appeal.
(Nelson, supra, 51 Cal.4th at p. 227.) In reviewing the amount of the restitution fine,
many factors in section 1202.4, subdivision (d), support the trial court’s decision.
Defendant’s burglary was a serious offense and was but the latest crime in a long history
of recidivism. The pecuniary impact to the victims from the loss of the laptop and
cellular phone was substantial. And while the victims suffered no physical harm, the
court found they suffered psychological harm as a result of the burglary. Based on these
facts, it was not an abuse of discretion for the trial judge to impose a $10,000 restitution
fine. Thus, defendant has not met his burden to show ineffective assistance of counsel.
C.      VICTIM RESTITUTION (§ 1202.4, SUBD. (F))

        Defendant challenges the amount of victim restitution he was ordered to pay to
Kapelowitz ($639) and Roberge ($2,600). Defendant first argues Apprendi and Southern
Union require that the amount of victim restitution be determined by a jury. He also
argues the court abused its discretion in determining the amount of restitution. Pursuant
to section 1202.4, subdivision (f), the court must order full restitution for any economic
loss “based on the amount of loss claimed by the victim or victims or any other showing
to the court.”
       Defendant’s Apprendi claim fails because that line of cases applies only to facts
affecting the imposition of “punishment.” (People v. Chappelone (2010) 183
Cal.App.4th 1159, 1184.) In Chappelone, the First District, encountering an identical
claim, surveyed United States Supreme Court cases as well as California cases and
concluded victim restitution did not constitute punishment because its primary purpose is
to provide compensation to victims rather than to punish defendants. (Ibid.) That victim
restitution might serve a secondary purpose of deterrence does not convert it into a form
of punishment implicating the Sixth Amendment jury right. (Ibid., citing People v.
Millard (2009) 175 Cal.App.4th 7, 35-36.) We agree with the First District’s reasoning
and therefore find no Sixth Amendment violation.
       Defendant next argues the trial court abused its discretion in setting the amount of
victim restitution based solely on information from the probation report. We disagree.
The contents of a probation report constitute “ ‘prima facie evidence of loss’ ” and, in the
absence of any contrary information filed by defendant,6 the trial court was allowed to
rely on that report in setting the amount of victim restitution. (People v. Holmberg
(2011) 195 Cal.App.4th 1310, 1319-1320, quoting People v. Gemelli (2008) 161
Cal.App.4th 1539, 1543.) For this reason, we find no abuse of discretion.




       6
          A defendant has the right to a hearing to dispute the determination of the amount
of restitution (Pen. Code § 1202.4, subd.(f)(1).). Although the record does not contain an
explicit advisement or waiver of such a hearing, defendant does not allege that he was
deprived of that opportunity.
D.     CRIMINAL JUSTICE ADMINISTRATION FEE

       Defendant’s final argument is that the trial court erred by imposing a criminal
justice administration fee without determining defendant’s ability to pay. Disposition of
this issue is controlled by the California Supreme Court’s recent decision in People v.
McCullough (2013) 56 Cal.4th 589, where the Court held a challenge to a criminal justice
administration fee is forfeited if there is no objection in the trial court. (Id. at p. 597.) As
we are bound by that decision, and because defendant did not object below, his argument
is forfeited.
       As for the People’s request that we amend the sentencing minute order and
abstract of judgment to conform to the oral order, review of the documents indicates they
both reflect the oral order to pay a $129.75 criminal justice administration fee. Thus, no
amendment is necessary.
                            III.       DISPOSITION
      For the foregoing reasons, the judgment is affirmed.




                                        ____________________________________
                                        Grover, J.




WE CONCUR:




____________________________
Premo, Acting P.J.




____________________________
Mihara, J.
