P. v. Airy

Filed 11/29/05 P. v. Airy CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent, v. CHARLES DWAYNE AIRY, Defendant and Appellant.

H028336 (Santa Clara County Super. Ct. No. CC329760)

Statement of the Case

Defendant Charles Dwayne Airy pleaded guilty to possession of cocaine base and admitted having suffered three prior strike felony convictions and having served three prison terms. (Health & Saf. Code, §§ 11350, subd. (a)(1); 667, subds. (b)-(i); 667.5, subd. (b).) At sentencing, the trial court declined to dismiss the prior strike conviction allegations and imposed a three-strike term of 25 years to life plus three consecutive one-year enhancements for the prior prison terms. On appeal from the judgment, defendant claims the trial court erred in denying his motion to suppress evidence. (Pen. Code, § 1538.5.) He also claims that his sentence violates the constitutional proscriptions against cruel and unusual punishment.

We affirm the judgment.

Facts

On October 16, 2003, around 2:45 p.m., Officer Darrio Estrabao of the San Jose Police Department was in his patrol car in the South 9th Street area and noticed a Corvette in a driveway, partially blocking the sidewalk. The driveway was next to a house that Officer Estrabao associated with drug activity. A man was standing next to the driver’s window talking to defendant, who was in the driver’s seat. As Officer Estrabao parked his car and got out, the man standing next to the car quickly walked to the house. Officer Estrabao approached the car, and when he got close, he “noticed there was a bottle of brandy on the left floorboard that appeared to have a broken seal.” At the driver’s window, he asked defendant whether he had ever been arrested or was on probation or parole and also asked to see his driver’s license. Defendant said he had been arrested for some “minor stuff” and was not on parole or probation and tendered his license. Officer Estrabao radioed for a license and warrant check. He learned that defendant was on “active parole for drugs” and asked defendant to exit the car. As he complied, defendant dropped something on the floorboard. When Officer Estrabao checked the floorboard, he found a small plastic baggie containing around three grams of cocaine base.

Motion to Suppress

Defendant contends the court should have suppressed evidence of the drugs because Officer Estrabao unlawfully detained him for parking on the sidewalk. Alternatively, defendant argues that if he were properly detained, Officer Estrabao unlawfully prolonged the detention to perform a warrant check.

“In reviewing the denial of a motion to suppress evidence, we view the record in the light most favorable to the trial court’s ruling and defer to its findings of historical fact, whether express or implied, if they are supported by substantial evidence. We then decide for ourselves what legal principles are relevant, independently apply them to the historical facts, and determine as a matter of law whether there has been an unreasonable search and/or seizure. [Citations.]” (People v. Miranda (1993) 17 Cal.App.4th 917, 922; People v. Ayala (2000) 23 Cal.4th 225, 255.)

The Fourth Amendment to the United States Constitution prohibits “unreasonable” searches and seizures. (Terry v. Ohio (1968) 392 U.S. 1, 19, & fn. 1; United States v. Sharpe (1985) 470 U.S. 675, 682.) Seizures, which include both detentions and formal arrests, involve the use of physical force or a show of authority that in some way restrains a person’s liberty. (Florida v. Bostick (1991) 501 U.S. 429, 434; California v. Hodari D. (1991) 499 U.S. 621, 625-626; Florida v. Royer (1983) 460 U.S. 491, 498 (plurality opinion); People v. Bennett (1998) 17 Cal.4th 373, 386; People v. Souza (1994) 9 Cal.4th 224, 229.) The test for whether a person has been seized within the meaning of the Fourth Amendment is objective: Whether “in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” (United States v. Mendenhall (1980) 446 U.S. 544, 554, fn. omitted.) This objective standard “allows the police to determine in advance whether the conduct contemplated will implicate the Fourth Amendment. [Citation.] This ‘reasonable person’ standard also ensures that the scope of Fourth Amendment protection does not vary with the state of mind of the particular individual being approached.” (Michigan v. Chesternut (1988) 486 U.S. 567, 574.)

To be reasonable, a detention must be justified by a certain level of suspicion. (In re Manuel G. (1997) 16 Cal.4th 805, 821.) Specifically, an officer must be able to state articulable facts that cause him or her to personally believe that some activity “relating to crime has taken place or is occurring or about to occur,” and the person being detained is involved in that activity. (In re Tony C. (1978) 21 Cal.3d 888, 893; In re James D. (1987) 43 Cal.3d 903, 914; People v. Loewen (1983) 35 Cal.3d 117, 123.)

Officer Estrabao initially approached the Corvette because it was partially blocking the sidewalk, in violation of Vehicle Code section 22500, subdivision (f).^[1] Defendant correctly points out that parking violations are now treated as civil, rather than criminal, offenses. (See Love v. City of Monterey (1995) 37 Cal.App.4th 562, 566-567; Tyler v. County of Alameda (1995) 34 Cal.App.4th 777, 780.) Thus, because the violation was not criminal activity, defendant argues that Officer Estrabao could only write a citation and put it on the car or hand it to defendant. The violation could not justify a detention.

Defendant further claims that Officer Estrabao’s observation of a brandy bottle did not justify a detention. Defendant acknowledges that under section 23223, it is unlawful for a driver to possess a bottle of alcohol with a broken seal in a motor vehicle while on a highway.[2] However, he points out that the prosecution introduced no evidence that the bottle had anything in it, and there was no evidence that defendant was the driver of the Corvette. Defendant further opines that “it is indeed a stretch to say that the vehicle was ‘upon a highway’ or otherwise applicable to the provisions of section 23223.”

However, in denying the motion to suppress, the court found that defendant was properly detained for a possible violation of section 23223. We agree that Officer Estabao’s observation of the brandy bottle justified a detention. First, section 23223 applies to both drivers and passengers. (See fn. 2, ante.) Defendant’s presence in the driver’s seat of the car supports an inference that he may have been driving or was about to drive the car or at least that he had been or was about to be a passenger. Moreover, although section 23223 proscribes having an open container in a car “upon a highway,” the sidewalk is considered part of the highway. (§ 555.)[3] Thus, in In re Devon C. (2000) 79 Cal.App.4th 929, the court upheld the detention of a juvenile for riding his bicycle on a sidewalk without a helmet under section 21212, which requires juveniles to wear helmets when riding on a highway. (Id. at pp. 931-933.)

Under the circumstances, Officer Estrabao’s observation of a bottle with an apparently broken seal on the floorboard supported a reasonable suspicion that activity “relating to crime has taken place or is occurring or about to occur”—a violation of section 23223. (In re Tony C., supra, 21 Cal.3d at p. 893.) Defendant’s presence alone in the car further supports an inference that he was involved in that activity. Additional evidence concerning the bottle was unnecessary to establish a valid basis for a stop. Rather, we conclude Officer Estrabao was justified in approaching defendant to talk to him about the parking violation and detain him for as long as necessary to resolve suspicions concerning a possible violation of section 23223. (Cf. People v. Ellis (1993) 14 Cal.App.4th 1198 [traffic stop in parking lot for not having headlights on justified because it related to criminal activity about to occur on a public street].)

Defendant’s reliance on People v. Lopez (1987) 197 Cal.App.3d 93 is misplaced. There, the court held that section 23223 does not apply to possession of an open container in a car parked in the parking lot of a public park. Although other courts had found that the term “highway” included areas such as parking places adjacent to a roadway or the asphalt shoulder adjoining a paved roadway, the Lopez court noted that unlike those areas, a parking lot is primarily intended for parking, not travel. Thus, the court declined to construe “highway” beyond its usual and natural meaning and expand the statute to include a public parking lot. (Id. at pp. 99-100.) Contrary to defendant’s suggestion, we need not “stretch” the plain meaning of the statute to find it applicable to a car partially blocking a sidewalk. As noted, the Legislature expressly deemed sidewalks to be part of the “highway.” (§ 555.)

We next address defendant’s alternative claim that the background records check unreasonably prolonged his detention.

A detention that is initially justified may nevertheless “ ‘exceed constitutional bounds when extended beyond what is reasonably necessary under the circumstances which made its initiation permissible.’ ” (People v. McGaughran (1979) 25 Cal.3d 577, 586.) For example, a police officer may detain a motorist for a traffic violation, but the detention may not be prolonged beyond the time period necessary to address the violation. (Id. at p. 584.) Accordingly, an officer may routinely run a warrant check on a traffic infraction detainee, provided that doing so takes place within the amount of time reasonably necessary to deal with the underlying basis for the traffic stop. (Id. at pp. 584, 587; People v. Brown (1998) 62 Cal.App.4th 493, 498.) However, there is no hard and fast limit as to the amount of time that is reasonable, and each case turns on its own particular circumstances. (Williams v. Superior Court (1985) 168 Cal.App.3d 349, 358.)

To decide whether there was an unreasonably prolonged detention, we must first determine when defendant was first detained. Defendant’s claim implies that he was detained some time before the warrant check. To determine when defendant was detained, we look at all the circumstances and ask when a reasonable person would have felt that he or she was not free to terminate the encounter with Officer Estrabao. (See Michigan v. Chesternut, supra, 486 U.S. at p. 574.)

Here, Officer Estabao pulled over to the curb and parked his patrol car. He did not block the driveway, sound a siren, or activate his overhead lights. Thus, as Officer Estrabao approached the Corvette, defendant had no reason to feel that he was not free to drive or walk away. (Compare People v. Wilkins (1986) 186 Cal.App.3d 804, 808 [detention where patrol car blocked egress] with People v. Perez (1989) 211 Cal.App.3d 1492, 1496 [no detention where patrol car did not block egress].) Indeed, the person with defendant walked away, and Officer Estrabao did not stop him.

Next, it is settled that merely walking up to a person and asking some questions or asking for and receiving identification or other documents do not necessarily cause a detention. (Florida v. Bostick, supra, 501 U.S. at p. 434; Florida v. Royer, supra, 460 U.S. at pp. 497, 501 (plurality opinion); People v. Gonzalez (1994) 164 Cal.App.3d 1194, 1196.) Such conduct must be viewed in light of the totality of circumstances. “Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled. [Citations.] In the absence of some such evidence, otherwise inoffensive contact between a member of the public and the police cannot, as a matter of law, amount to a seizure of that person.” (United States v. Mendenhall, supra, 446 U.S. at pp. 554-555.)

For example, in Florida v. Royer, supra, 460 U.S. 491, federal drug agents approached the defendant because he matched a drug courier profile, and they asked for his airplane ticket and driver’s license. He complied, and the agents examined them. A majority of the United States Supreme Court considered the request and examination of the documents to be a consensual encounter and not a detention. (Id. at pp. 501 (plurality opinion), 523, fn. 3 (opinion of Rehnquist, J.).) As the court in I.N.S v. Delgado (1984) 466 U.S. 210, 216-217, explained, “While most citizens will respond to a police request, the fact that people do so, and do so without being told they are free not to respond, hardly eliminates the consensual nature of the response.”[4]

In U.S. v. Analla (4th Cir. 1992) 975 F.2d 119, the defendant was at a phone booth when two officers in separate cars pulled up next to his car. However, they did not block the defendant’s car. When the defendant finished his call, an officer asked for his license and registration. The defendant retrieved them from the car, leaving the door ajar, and handed them to the officer, who then radioed for a license check. While this was happening a third officer arrived and informed the defendant that he fit the description of the perpetrator of a recent killing. The officer asked if the defendant had any weapons, and when the defendant said no, the officer asked for permission to search the car. The defendant consented, and a search revealed a gun. (Id. at p. 122.) On appeal, the defendant contended his consent to search was tainted by an unlawful detention. In rejecting this claim, the court explained, “When [the officer] approached [the defendant] and asked to see his license and registration, [the defendant] was not seized. [His] cooperation with [the officer] did not convert the encounter into a seizure, even though [the officer] did not tell [the defendant] that he was free to leave or to refuse the request. Although [the officer] was accompanied by [another officer], neither had his gun drawn. There is no evidence of any use or threat of physical force, and, although [the defendant] claims that the officers’ tone of voice was intimidating, the district court found to the contrary. [The officer] necessarily had to keep [the defendant’s] license and registration for a short time in order to check it with the dispatcher. However, he did not take the license into his squad car, but instead stood beside the car, near where [the defendant] was standing, and used his walkie-talkie. [The defendant] was free at this point to request that his license and registration be returned and to leave the scene.” (Id. at p. 124.)

Citing Analla and other cases, the court in People v. Bouser (1994) 26 Cal.App.4th 1280 reached the same conclusion on similar facts. There, an officer observed the defendant in an alley poking through a dumpster. When the defendant saw the officer, he walked away. The officer stopped his car behind him, got out, and asked if they could talk. The defendant stopped, and the officer asked for his name, date of birth, arrest history, and business in the alley. The defendant said he was visiting a friend but could not provide an address. The officer started to fill out an interview card with the defendant’s personal information, ran a records check for outstanding warrants, and made small talk for the next few minutes while he finished filling out the card. When the officer learned of an outstanding warrant, he arrested the defendant, and a search revealed drugs. (Id. at pp. 1282-1283.) On appeal, the defendant claimed the arrest and search were tainted because the officer had unlawfully detained him to run the warrant check. (Ibid.) The court opined that merely commencing a check for warrants does not automatically convert a consensual encounter into a detention. Rather, such a records check is simply one factor to be considered among the totality of circumstances. (Id. at p. 1287.) The court observed that the defendant might have felt that he was the subject of some generalized suspicion. But the court noted that the questions and warrant check did not relate to specific, identifiable criminal activity; the officer did not “order” the defendant to do anything or surrender anything during the warrant check; and the officer did not draw his weapon, make any threatening gestures, or utilize his car’s lights or siren. (Ibid.) Given these circumstances, the court concluded that the defendant had not been detained because he was free to terminate the encounter at any time before his arrest. (Id. at pp. 1287-1288.)

In People v. Terrell (1999) 69 Cal.App.4th 1246, an officer saw the defendant and two other men seated on a bench. One of the other men appeared to be under the influence of a controlled substance. After briefly talking to the defendant, the officer asked whether he had any identification. The defendant handed him his driver’s license. The officer ran a warrant check, learned of an outstanding warrant, and arrested the defendant. A search of his fanny pack revealed contraband. (Id. at p. 1251.) On appeal, the court, citing Bouser, found that defendant had not been detained before his arrest. The court explained, “The totality of circumstances surrounding [the defendant’s] arrest reveals that [his] initial encounter with the police was consensual, including [his] spontaneous and voluntary action in handing [the officer] his driver’s license. At no time did he ask the officer for his driver’s license back. During the entire encounter, which lasted about three minutes, neither [the officer] nor his partner, by words or conduct, indicated that appellant was not free to leave. No reasonable inference therefore could be drawn that the encounter was a detention rather than a consensual encounter.” (Id. at p. 1254.)

Here, when Officer Estrabao was alone when he approached defendant. He did not have his gun drawn. And he did not run up to the Corvette ordering defendant to remain inside. The record does not suggest that when Officer Estrabao arrived at the driver’s window, he ordered or commanded defendant to produce identification or requested it in a coercive or intimidating way. Rather, he testified that he asked to see defendant’s driver’s license and also asked whether he had ever been arrested or was on probation or parole. In response, defendant voluntarily produced his license and offered that he had some minor arrests but was not on parole or probation. Although Officer Estrabao immediately ran a record check, he did not order defendant to stay in his car or get out of it. Nor did he suggest by word or conduct that defendant could not leave or ask for his license back. Within a short time, Officer Estrabao learned that defendant had lied to him and was on parole for a drug offense.

In our view, the totality of circumstances up to this point no more indicate that a reasonable person would not have felt free to terminate the encounter and ask for the license back—i.e., establish a detention—than did the circumstances in Royer, Analla, Bouser, or Terrell. (See also State v. Deitman (Utah 1987) 739 P.2d 616 [where defendants, who produced identification, were not held against their will, no detention]; State v. Johnson (1986) 517 N.E.2d 262 [request for identification, subsequent warrant check not detention where police did not draw guns or command compliance].)

We acknowledge that in People v. Castaneda (1995) 35 Cal.App.4th 1222, the court adopted a different blanket approach where an officer obtains identification. There, the defendant was seated in the passenger seat of an illegally parked car. An officer approached him and asked for identification and the name of the car’s owner. The defendant produced his license and said a friend owned the car. However, he did not know the friend’s address or whereabouts. The officer ran a check on the license and the car registration, while another officer wrote a parking citation. Upon learning that there was an outstanding warrant for the defendant, the officers arrested him. (Id. at pp. 1225-1226.) On appeal, the defendant claimed the arrest was tainted by an unlawful detention. The court concluded that although the request for identification did not restrain the defendant in any way, “once [he] complied with his request and submitted his identification card to the officers, a reasonable person would not have felt free to leave. And once the officers began writing the parking ticket, no one would have tried to walk away from them.” (Id. at p. 1227, italics in original.) Nevertheless, the court upheld the detention because “the officer could reasonably suspect the passenger was not being honest about the car’s ownership. Moreover, running a check on the car’s owner was essential to confirm [the defendant’s] denial of ownership or responsibility; this was done simultaneously with the warrant check.” (Id. at p. 1228; see also U.S. v. Chan-Jimenez (9th Cir. 1997) 125 F.3d 1324, 1326.) [“When a law enforcement official retains control of a person’s identification papers, such as vehicle registration documents or a driver’s license, longer than necessary to ascertain that everything is in order, and initiates further inquiry while holding on to the needed papers, a reasonable person would not feel free to depart”].)

Insofar as Castenada and Chan-Jimenez hold that producing identification upon request automatically transforms a consensual encounter into a detention, we disagree. As noted, in determining whether a person has been detained, no one factor, such as handing one’s license to an officer, is determinative; rather, we look at the totality of circumstances. Obviously, it is unlikely that anyone who gives his or her license to an officer in response to a request would elect to walk away without it. However, we do not believe that voluntarily producing identification necessarily means that one’s liberty is being restrained for as long as the officer retains it and that under no circumstances would a reasonable person feel free to terminate the encounter and ask for his or her license back. As the cases discussed above reveal, when the totality of the circumstances reveals that an encounter was not expressly or implicitly intimidating, accusatory, or coercive, the fact that one provides documents or identifying information to an officer for a warrant check does not always or invariably eliminate the consensual nature of an initial encounter.

We reiterate. Defendant was sitting in a car, talking to someone when Officer Estrabao approached. Officer Estrabao did not verbally or physically restrain him or make a show of force indicative of a seizure. Nor did Officer Estrabao act or express himself in an intimidating, coercive, or accusatory way such that a reasonable person would think he or she had no choice but to remain in the Corvette, produce identification, and wait for the results of the warrant check. Given the totality of the circumstances surrounding Officer Estrabao’s arrival, request for identification, and warrant check, we conclude that the encounter remained consensual until Officer Estrabao received the results of the check and determined that defendant had lied about his parole status.

In any event, as noted above, the location of the car and the brandy bottle justified a detention so that Officer Estrabao could investigate a possible violation of section 23223. Accordingly, we find that in addition to talking to defendant about the parking violation or writing a parking citation (see People v. Castaneda, supra, 35 Cal.App.4th at p., 1227 [“An officer has every right to talk to anyone he encounters while regularly performing his duties, such as investigating illegal parking”]), Officer Estrabao reasonably could have asked to see and examine defendant’s license and the Corvette’s vehicle registration and questioned defendant about both. He could also have asked for and examined the brandy bottle, questioned defendant about it, and discussed section 23223. Given the nature and extent of the duties that Officer Estrabao reasonably could have performed under the circumstances, we cannot say, and the record does not establish or even suggest, that the warrant check took an undue amount of time or otherwise prolonged the detention any appreciable amount of time beyond what it otherwise would have taken Officer Estrabao to perform permissible duties related to the stop. (See People v. Brown, supra, 62 Cal.App.4th at p. 498; People v. Bell (1996) 43 Cal.App.4th 754, 767; compare U.S. v. Shabazz (5th Cir.1993) 993 F.2d 431, 437 [“we have no doubt, that in a valid traffic stop, an officer can request a driver’s license, insurance papers, vehicle registration, run a computer check thereon, and issue a citation”] with People v. McGaughran, supra, 25 Cal.3d at pp. 581-582 [stop for traffic infraction extended for 10 minutes to run warrant check on the occupants of the car].) Thus, even if we assume for purposes of argument that defendant was detained before Officer Estrabao ran the warrant check, we would not find that the check unreasonably prolonged the detention in violation of defendant’s Fourth Amendment rights.

Once Officer Estrabao learned that defendant was on parole for a drug offense and that he had lied about it, those facts plus the location of the encounter near a house the officer associated with drug activity provided additional grounds to prolong the detention and ask defendant to exit the car. (See People v. Webster (1991) 54 Cal.3d 411, 430-431 [circumstances after initial detention may justify expanding scope and making it more intrusive]; People v. Grant (1990) 217 Cal.App.3d 1451, 1458 [same].) Defendant’s effort to discard something before he got out of the car further raised suspicions sufficient to justify a search. And upon finding the discarded contraband, Officer Estrabao was justified in arresting defendant for possession of drugs. Apart from claiming the unlawful detention or unreasonably prolonged detention tainted the subsequent search and arrest, defendant does not argue the search and arrest in themselves were unreasonable.

Given our analysis, we conclude that the trial court properly denied defendant’s motion to suppress.

Constitutionality of Defendant’s Sentence

Defendant contends that his 28-year-to-life sentence constitutes cruel and unusual punishment in violation of the federal and state Constitutions.

A punishment is excessive under the Eighth Amendment if it involves the “unnecessary and wanton infliction of pain” or if it is “grossly out of proportion to the severity of the crime.” (Gregg v. Georgia (1976) 428 U.S. 153, 173.) A punishment may violate article I, section 17 of the California Constitution if “it 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, fn. omitted.) In determining whether a particular punishment is unconstitutional, we examine three factors: (1) the nature of the particular offense and offender, (2) the penalty imposed in the same jurisdiction for other offenses, and (3) the punishment imposed in other jurisdictions for the same offense. (Solem v. Helm (1983) 463 U.S. 277, 290-291; In re Lynch, supra, 8 Cal.3d at pp. 425-427; People v. Martinez (1999) 71 Cal.App.4th 1502, 1510.)

Defendant does not separately address each of these factors or argue that an analysis of each would support his claim. Instead, he asserts that his prior strike convictions in 1973, 1980, and 1989 for two robberies and a burglary are remote and irrelevant and argues that without them, “he would very likely have been sentenced to probation and, in fact, would have been eligible for, and probably would have been granted, diversion.” He further opines that he will not be eligible for parole until after he is 80 years old, which, in effect, makes the punishment for simple possession of a minor amount of cocaine base life imprisonment without parole. He claims that such a punishment is grossly disproportionate to his offense.

Defendant does not claim that the court abused its discretion in declining to dismiss his prior strike convictions in furtherance of justice so that defendant could be sentenced as if he were not a recidivist offender. Concerning his recidivism, we note that defendant’s criminal history began in 1969 and continued into the 1990s with convictions for theft, robbery, burglary, drug offenses, and failure to register as a sex offender. Moreover, he was on parole when he committed his current offense. Thus, the record supports the court’s determination that defendant came “within the spirit of the three strikes sentencing scheme as it relates to sentencing for recidivist offenders[,]” and therefore, dismissing his strikes would not further the interests of justice. (See People v. Williams (1998) 17 Cal.4th 148, 160-161; Pen. Code, § 1385.) Contrary to defendant’s analytical approach, his strike convictions were not irrelevant, and his sentence cannot be viewed just as punishment for possessing a small amount of cocaine base; it was punishment for committing a felony and doing so as a recividist offender. In other words, he “was punished not just for his current offense but for his recidivism. Recidivism justifies the imposition of longer sentences for subsequent offenses. [Citation.]” (People v. Cooper (1996) 43 Cal.App.4th 815, 825.)

In Rummell v. Estelle (1980) 445 U.S. 263, 284-285, the United States Supreme Court explained that that society is warranted in imposing increasingly severe penalties on those who repeatedly commit felonies. In that case, the defendant was given a mandatory life sentence for stealing $120.75 and having prior convictions for fraud involving $80 worth of goods and passing a forged check for $28.36. (Id. at p. 265.) The court rejected the defendant’s claim that his sentence was disproportionate to the severity of his current offense. The court pointed out that the primary goals of a recidivist statute are to “deter repeat offenders and, at some point in the life of one who repeatedly commits criminal offenses serious enough to be punished as felonies, to segregate that person from the rest of society for an extended period of time. This segregation and its duration are based not merely on that person’s most recent offense but also on the propensities he has demonstrated over a period of time during which he has been convicted of and sentenced for other crimes. . . . [T]he point at which a recidivist will be deemed to have demonstrated the necessary propensities and the amount of time that the recidivist will be isolated from society are matters largely within the discretion of the punishing jurisdiction.” (Id. at pp. 284-285.)

More recently, in Lockyer v. Andrade (2003) 538 U.S. 63, the court rejected a similar claim. There, the defendant stole $153.84 worth of videotapes from two stores on separate occasions. A jury convicted him of two counts of petty theft with a prior and found that he had at least two prior strike convictions. The court sentenced him under the three strikes law to two consecutive life terms. The record revealed that in 1982, he suffered a state misdemeanor theft conviction and a few felony burglary convictions. In 1988, he suffered a federal conviction for transporting marijuana. In 1990, he suffered a state misdemeanor petty theft conviction and a second federal conviction for transporting drugs. In 1991, he was arrested for a state parole violation—escape from federal prison. In 1993, he was released on parole, and in 1995, he committed the two current offenses. Given these circumstances, the court did not find the defendant’s two life terms to be unconstitutional.

In Ewing v. California (2003) 538 U.S. 11, the defendant was convicted of grand theft—he stole three golf clubs worth $399 each. Under the three strikes law, the trial court imposed a life term. The record revealed that the defendant’s criminal history spanned from 1984 to 1999 and included misdemeanor and felony convictions for petty theft, auto theft, battery, burglary, robbery, possession of drugs, trespass, and unlawful possession of a firearm. There too, the court did not find the defendant’s sentence to be unconstitutional.

Defendant’s sentence and circumstances are not distinguishable from those in these cases and do not suggest that his punishment is unconstitutionally disproportionate. (Cf. also Harmelin v. Michigan (1991) 501 U.S. 957 [life without possibility of parole for possession of drugs]; People v. Poslof (2005) 126 Cal.App.4th 92 [three-strike life term for failing to register as sex offender not unconstitutional]; People v. Cline (1998) 60 Cal.App.4th 1327 [life term for grand theft and residential burglary with prior residential burglary convictions].)

Defendant’s reliance on Weems v. United States (1910) 217 U.S. 349 and People v. Carmony (2005) 127 Cal.App.4th 1066 is misplaced.

In Weems, a United States disbursing officer was convicted of making two false entries in his cash books and sentenced to 15 years at hard labor. The United States Supreme Court held that his sentence was unconstitutional. (Weems v. United States, supra, 217 U.S. at pp. 357-359.) However, the defendant was not a recidivist offender with prior convictions for violent or serious crimes.

In Carmony, the defendant, a sex offender, registered his correct address with police one month before his birthday, as required by law, but failed to update his registration with the same information within five working days of his birthday. (People v. Carmony, supra, 127 Cal.App.4th at p. 1071.) He later pleaded guilty to failing to register as a sex offender and admitted three prior serious or violent felony convictions. (Ibid.) He was sentenced to a three-strike term of 25 years to life. On appeal, the court deemed the sentence unconstitutional. In reaching its conclusion, the court noted that the defendant’s current offense involved a passive omission and “no more than a harmless technical violation of a regulatory law.” (Id. at pp. 1072, 1077.) Moreover, the court pointed out that the registration requirement was designed to ensure that law enforcement authorities could readily conduct surveillance of sex offenders. However, in the defendant’s case, “there was no new information to update and the state was aware of that fact. Accordingly, the requirement that defendant reregister within five days of his birthday served no stated or rational purpose of the registration law . . . .” (Id. at pp. 1072-1073.)

Here, defendant’s offense, as he concedes, is not a harmless technical violation of a regulatory law. Nevertheless, he argues that because it is not “much more” than that his sentence should be nullified as unconstitutional. In our view, however, defendant’s possession of cocaine base is more serious than the offense in Carmony and even those in Rummell, Andrade, and Ewing.

In sum, therefore, we do not find that defendant’s sentence qualifies as cruel, unusual, or unconstitutionally disproportionate punishment.

Disposition

The judgment is affirmed.

______________________________________

RUSHING, P.J.

WE CONCUR:

____________________________________

PREMO, J.

____________________________________

DUFFY, J.

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[1] “No person shall stop, park, or leave standing any vehicle whether attended or unattended . . . in any of the following places: [¶] . . . [¶] (f) On any portion of a sidewalk, or with the body of the vehicle extending over any portion of a sidewalk . . . .” (Veh. Code, § 22500, subd. (f).)

All further statutory references are to the Vehicle Code unless otherwise specified.

[2] Section 23223 provides, “(a) No driver shall have in his or her possession, while in a motor vehicle upon a highway or on lands, as described in subdivision (b) of Section 23220, any bottle, can, or other receptacle, containing any alcoholic beverage that has been opened, or a seal broken, or the contents of which have been partially removed. [¶] (b) No passenger shall have in his or her possession, while in a motor vehicle upon a highway or on lands, as described in subdivision (b) of Section 23220, any bottle, can, or other receptacle containing any alcoholic beverage that has been opened or a seal broken, or the contents of which have been partially removed.”

[3] Section 555 defines “ “[s]idewalk’ ” as “that portion of a highway, other than the roadway, set apart by curbs, barriers, markings or other delineation for pedestrian travel.” (Italics added.)

[4] On the other hand, in Brown v. Texas (1979) 443 U.S. 47, when the defendant refused a request to identify himself, two police officers physically detained him to determine his identity. On those facts, the court found a detention that required a reasonable suspicion of misconduct. (Id. at p. 52.)