People v. Martinez

• Decision Date: 12 May 1999
• Docket Number: No. H018197,H018197
• Citation: 84 Cal.Rptr.2d 638,71 Cal.App.4th 1502
• Court: California Court of Appeals Court of Appeals
• Parties: , 1999 Daily Journal D.A.R. 4449 The PEOPLE, Plaintiff and Respondent, v. Ralph Joe MARTINEZ, Defendant and Appellant.

Page 638

84 Cal.Rptr.2d 638

71 Cal.App.4th 1502, 1999 Daily Journal D.A.R. 4449

The PEOPLE, Plaintiff and Respondent, v. Ralph Joe MARTINEZ, Defendant and Appellant.

No. H018197.

Court of Appeal, Sixth District, California.

May 12, 1999.

Review Denied Aug. 25, 1999.

David D. Martin, Santa Cruz, Attorney for Appellant Ralph Joe Martinez under appointment by the Sixth District Appellate Project.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Senior Assistant Attorney General, Ronald S. Matthias, Supervising Deputy Attorney General, Matthew P. Boyle, Deputy Attorney General, Attorneys for Respondent.

BAMATTRE-MANOUKIAN, Acting P.J.

California's Three Strikes statutes ¹ provide for life imprisonment with a minimum term of at least 25 years for a conviction of any third felony after two or more prior convictions of what are deemed by statute to be "violent" (§ 667.5, subd. (c) ²) or "serious" (§ 1192.7, subd. (c)) ³ felonies. The third felony need not be violent or serious.

Defendant Ralph Martinez pleaded no contest to the felonies of possessing methamphetamine (count 1; Health & Saf.Code, § 11377, subd. (a)) and attempting by threat to deter an executive peace officer from carrying out his duty (count 5; § 69), and the misdemeanors of driving under the influence (count 2; Veh.Code, § 23152, subd. (a)), driving with a blood alcohol level at least .08 percent (count 3; Veh.Code, § 23152, subd. (b)), and using phencyclidine (count 4; Health & Saf.Code, § 11550, subd. (a)).

Defendant also admitted having the following criminal history: a 1995 conviction of assault with personal use of a deadly weapon, after which he served a prison term (People v. Martinez (Super. Ct. Santa Clara County, 1985, No. 176512)), and 1985 convictions of robbery and attempted robbery, after which he served a prison term (People v. Martinez (Super. Ct. Santa Clara County, 1985, No. 104058))

Due to defendant's three prior strike felonies, the trial court sentenced defendant, then age 43, to life in prison with a minimum term of 25 years on count 1, with a similar concurrent term on count 5, 6-month concurrent terms on counts 2 and 4, with the term on count 3 stayed. The trial court struck prison term enhancements.

On appeal defendant contends his sentence to life imprisonment is unconstitutionally cruel or unusual. For the reasons stated below, we will affirm the judgment.

Defendant's current offenses

The following evidence was presented at the preliminary examination. On September 1, 1996, at about 1:30 a.m., Fabian Ramirez, a Campbell Police Officer, noticed a car weaving on the street. He stopped the car. Defendant was the driver. He was obviously intoxicated. He had an open beverage container between his legs. He staggered when he got out of the car. He refused to perform field sobriety tests. The officer took defendant into custody. During a search he found a coin bag containing .18 grams of methamphetamine in defendant's pants pocket. The officer forcibly obtained a blood sample from defendant when defendant refused to submit voluntarily. The blood sample revealed defendant had consumed phencyclidine. His blood alcohol level was .17 percent. During processing, defendant called Officer Ramirez a "punk" and a "bitch" and said he would see him on the streets when he got out.

Defendant's criminal history

The probation report described defendant's three prior serious felony convictions. In 1994, a female companion of defendant left a convenience store after 2 a.m. with a 12-pack of beer. The store clerk followed her out of the store, saying she had not paid. Defendant brandished a screwdriver. The clerk felt threatened and ran inside the store. Defendant and the female took off with the beer. Defendant was convicted in 1995 of assault with personal use of a deadly weapon.

In 1985, defendant accosted two people in a car at a fast food restaurant. Defendant said he needed $2 for gas. When the victim said he had no money, defendant pulled a Defendant, born in August 1954, also had three other felony convictions from 1988, 1990, and 1994 for possessing a controlled substance. He had 50 misdemeanor convictions dating back to 1973, usually for public intoxication or using a controlled substance. ⁴ Among these we note two convictions for battery (§ 242) in 1984 and 1985, one for brandishing a deadly weapon other than a firearm (§ 417) in 1984, and one for assault (§ 240) in 1990. No details appear in the record.

                long-barreled gun from his waistband and demanded money or "I'll blow your head off."   The victim gave defendant $60 and defendant left.  Shortly thereafter, defendant repeated the same behavior with a pedestrian.  The pedestrian was a security guard who disarmed defendant, determining the gun was a pellet gun.  Defendant was convicted of robbery and attempted robbery
                

Defendant's personal history

Defendant presented the following "social history" at sentencing. Defendant's father was an alcoholic construction worker who was physically abusive of his wife and children. Defendant's mother was also a heavy drinker. His parents separated when he was seven. He lived with his father until the age of nine, when he rejoined his mother.

Defendant had learning disabilities in school and remains illiterate, despite placement in special education classes. As a youth, defendant preferred the streets to school and home. Defendant started sniffing paint in sixth grade. He began smoking marijuana and drinking in junior high. He began using stronger drugs in ninth grade, discovering phencyclidine, which became his favorite and mainstay, along with alcohol. He dropped out of high school in the 11th grade because his girlfriend was pregnant. He worked in restaurants to try to support his child and girlfriend. They eventually separated.

It has been difficult for defendant to find work due to his illiteracy. He committed the robbery in 1985 while "high on drugs and alcohol." Once out of prison, he violated parole several times by using drugs.

Since defendant's latest incarceration on September 1, 1996, he has been pursuing drug treatment programs, including anger management, as well as furthering his education.

Sentencing hearing

At the sentencing hearing, defendant acknowledged he is a drug addict. He testified that he had been sent to a drug program in the early 1980's. He did not complete it. He was asked to leave after an argument because he had an attitude problem. He had not tried to check himself into a program. "I thought I would be able to do it on my own and I couldn't."

During defendant's recent incarceration he had been pursuing educational programs, drug programs, and domestic violence programs. He acknowledged he had attended similar programs before. What has changed now is that he has "met God."

Defendant's sister Carmelita testified that she prays with defendant now. She has seen him change. He is welcome to stay with her.

The trial court denied defendant's request to strike his strikes, explaining in part: "Mr. Martinez, from everything I have observed, when you're in custody, when you're sober, you're a fine person, you're a likable person, what I saw here I liked, but that isn't the "I know that you believe that you're not going to use again. I know that you are going to do everything you can to not use again. Unfortunately, at some point society says we can't take another chance. We can't take another chance with someone who uses and does violence.

issue. The real issue is what you do when you're on the street and what you do when you use.

"For me, I'm always willing to look at someone who simply is an addict and try to figure out is this someone who has seen the light, but when it's someone who has violence in their past and even their present, who puts other people at risk[,] I have an obligation to society as a whole" to enforce the Three Strikes law and protect the public.

CRUEL OR UNUSUAL PUNISHMENT

Defendant contends that his sentence of life imprisonment with a minimum term of 25 years violates the state constitutional prohibition of cruel or unusual punishment. (Cal. Const., art. I, § 17.) ⁵ Defendant recognizes that the federal Constitution affords no greater protection than the state constitution and he makes no separate federal argument.

In re Lynch (1972) 8 Cal.3d 410, 105 Cal.Rptr. 217, 503 P.2d 921 prescribed three "techniques" for assessing whether punishment is cruel or unusual. In order to determine if a 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, 105 Cal.Rptr. 217, 503 P.2d 921, fn. omitted), courts should (1) consider "the nature of the offense and/or the offender" (id. at p. 425, 105 Cal.Rptr. 217, 503 P.2d 921), (2) compare the punishment to other punishments imposed by the same jurisdiction for more serious offenses (id. at p. 426, 105 Cal.Rptr. 217, 503 P.2d 921) and (3) compare the punishment to other punishments imposed by other jurisdictions for the same offense (id. at p. 427, 105 Cal.Rptr. 217, 503 P.2d 921).

A. Nature of Offense and Offender

We first consider the nature of the offense and the offender. Regarding the offense, we should evaluate "the totality of the circumstances surrounding the commission of the offense in the case at bar, including such factors as its motive, the way it was committed, the extent of the defendant's involvement, and the consequences of his acts." (People v. Dillon (1983) 34 Cal.3d 441, 479, 194 Cal.Rptr. 390, 668 P.2d 697.) We also focus on the particular offender's "individual culpability as shown by such factors as his age, prior criminality, personal characteristics, and state of mind." (Ibid.)

Focusing on the facts of this case, we acknowledge that simple possession of a small quantity of methamphetamine is a crime that can be treated as either a felony or...