California Court of Appeal Jul 9, 2014 No. E059922Unpublished
Filed 7/9/14 P. v. Byrd 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E059922
v. (Super.Ct.No. FVI1300020)
CURTIS EDWARD BYRD, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. John M. Tomberlin,
Judge. Affirmed.
Tracy A. Rogers, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
Defendant and appellant Curtis Edward Byrd appeals after he was found guilty by
a jury of second degree robbery. (Pen. Code, §§ 211, 212.5.) The offense was a third
1
strike, and defendant was sentenced to a term of 25 years to life in state prison. He filed
a notice of appeal. We affirm.
FACTS AND PROCEDURAL HISTORY
Defendant went into a convenience store. He took one can of beer from the beer
cooler and asked for one pack of cigarettes. When the clerk, S.C., rang up the purchases,
defendant took his hand out of his pocket; he was holding a gun. Defendant placed the
gun, still holding it with his hand, on the counter, pointed toward the clerk. Defendant
said, “‘Don’t move,’” and that he did not want to hurt the clerk. Defendant asked for the
money from the register. The clerk complied, and gave defendant some bills from the
cash register totaling less than $20. Defendant wanted money from a second register as
well. The second register had about $15 in it, which the clerk also gave to defendant.
Not wanting to alarm the other customers in the store, the clerk asked defendant if she
could put the items in a bag. Defendant said yes; the clerk bagged the cash and the
merchandise. Defendant took the bag and left the store.
The clerk telephoned the store manager, and then called 911. Sheriff’s deputies
responded to the robbery report. A short distance away, they found defendant walking
down the street. Defendant was carrying a distinctive plastic bag with the store logo. A
can of beer was in the bag. Defendant had a pack of cigarettes in a front pants pocket, as
well as cash. Defendant had a black, plastic BB gun in his jacket pocket. Another deputy
transported the clerk to the location where defendant had been detained; the clerk
identified defendant as the robber.
2
As a result of these events, defendant was charged with one count of second
degree robbery. The information alleged that defendant had suffered three prior strike
convictions. The information also alleged as enhancements that defendant had three prior
serious felony convictions (Pen. Code, § 667, subd. (a)(1)), and three prison term priors
(Pen. Code, § 667.5, subd. (b)).
Jury trial commenced May 13, 2013. The jury found defendant guilty of the
charged robbery offense. In a bifurcated proceeding, defendant admitted two of the strike
prior (robbery) convictions; the People did not provide proof of the third. Defendant also
admitted a prior serious felony enhancement conviction, and one prison term prior.
The court sentenced defendant as a third striker to a term of 25 years to life on the
new robbery conviction. The court also imposed a consecutive sentence of five years on
the prior serious felony enhancement, and a consecutive sentence of one year on the
admitted prison term prior. Defendant’s total sentence was 31 years to life.
Defendant filed a notice of appeal.
ANALYSIS
This court appointed counsel to represent defendant on appeal. Counsel has now
filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v.
California (1967) 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493], setting forth a brief
statement of the facts and procedural history of the case. Counsel states that she
thoroughly reviewed the record, but found no arguable issues on appeal. She has
therefore requested this court to undertake a review of the entire record.
3
Defendant has been offered an opportunity to file a personal supplemental brief,
which he has done. Defendant identifies certain issues he wishes to bring to the court’s
attention. Most of defendant’s concerns betray a misunderstanding of the nature of the
“Three Strikes” law as an alternative sentencing scheme. Defendant does not dispute his
conviction of second degree robbery, but he questions whether the three strikes
punishment of 25 years to life is warranted or appropriate. None of the concerns
defendant raises is meritorious.
First, defendant argues that his conviction for second degree robbery should not be
treated as a “strikable offense”; he contends that it was not a sufficiently serious or
violent offense to warrant treatment as a third strike, on the theory that he did not threaten
the victim or point his gun at her. Defendant has distorted the record. Defendant
expressly told the victim not to move, because he did not want to hurt her. Defendant’s
statement was at least an implicit, if not an explicit, threat of force. He also displayed the
gun at the same time, backing up his threat of force. Although defendant laid the gun on
the counter and kept his hand on it—he did not, for example, raise the gun and point it
directly in the victim’s face—the victim nevertheless clearly testified that the gun barrel
was pointed in her direction. Contrary to his intimation otherwise, defendant in fact did
threaten the victim and did point the gun at her. Moreover, robbery is statutorily defined
as a serious felony (Pen. Code, § 1192.7, subd. (c)(19)). Defendant’s crime, and his
conduct during the commission of the crime, was sufficiently serious and/or violent to
qualify as a serious or violent felony third strike.
4
Next, defendant complains that he was not adequately advised of his right to a
hearing to challenge or contest the alleged qualifying prior strikes. In effect, defendant is
questioning the effectiveness of his trial counsel. We note, however, that at the
sentencing hearing, counsel did represent defendant and counsel was fully aware of
defendant’s right to challenge his prior strikes. As it transpired, the People
acknowledged that proof of defendant’s 1993 prior conviction as a strike was not
provided, and so withdrew the strike allegation as to that conviction. With respect to
defendant’s 1979 and 1985 strike convictions, the People did provide proof, and indeed
defendant had pleaded guilty in both of those cases. Defendant, of all people, was
perfectly aware that there was no basis upon which to challenge the existence and status
of each of those prior convictions as qualifying strikes.
In order to prevail on a claim of ineffective assistance of counsel (IAC), a
defendant must show both that counsel’s performance was deficient and that the deficient
performance prejudiced the defense. (Strickland v. Washington (1984) 466 U.S. 668,
687-688, 693-694 [80 L.Ed.2d 674, 104 S.Ct. 2052].) Manifestly, defendant can make no
such showing in these circumstances: where counsel knew of the right to challenge any
of the prior convictions; where the failure of proof by the People resulted in the
withdrawal of one of the strike allegations; where the remaining strike allegations were
supported by proper proof; where defendant himself was fully aware (because of his
guilty pleas) of the correctness of the prior strike convictions as alleged; and where
defendant proffers no basis upon which either of the remaining prior strikes could have
5
been challenged. Defendant was properly sentenced as a third striker after his present
second degree robbery conviction.
Third, defendant complains that he was sentenced to a term of 25 years to life for
his conviction of second degree robbery, when the crime of robbery does not carry a life
sentence. However, defendant was found guilty of second degree robbery—his latest
offense—under the circumstance that he had at least two prior strike-qualifying serious or
violent felony convictions. In other words, defendant was sentenced as a recidivist
offender—third striker—not merely as a person convicted of second degree robbery.
(People v. Cline (1998) 60 Cal.App.4th 1327, 1338.)
Because defendant is a recidivist offender, his commission of a new crime—
second degree robbery—has taken him out of the ordinary determinate sentencing
scheme for second degree robbery, and subjected him to an alternative sentencing scheme
for recidivist offenders. The alternative sentencing scheme of the Three Strikes law
applies when “a defendant has been convicted of a felony and it has been pled and proved
that the defendant has one or more prior felony [strike] convictions . . . .” (Pen. Code,
§ 1170.12, subds. (a), (c)(1); see § 667, subd. (e)(1).) Defendant meets both criteria: he
has committed a new serious or violent felony (second degree robbery) and it has been
pleaded and proven that he has at least two prior serious or violent felony convictions.
“There can be no doubt that the legislative purpose—to punish recidivist criminals
more severely than others—is a proper goal. It has to do with preventing and punishing
crime, and with protecting the public from criminals. The core idea is that those who
6
have not drawn the proper lesson from a previous conviction and punishment should be
punished more severely when they commit more crime. Nor is it irrational to provide
that the more serious the previous crime, the greater should be the punishment for a
subsequent offense. Recidivist laws have been part of the legal landscape for a very long
time, and their basic validity is beyond serious legal question. [Citations.]” (People v.
Kilborn (1996) 41 Cal.App.4th 1325, 1329.)
Fourth, defendant argues that he has already served the time for the underlying
strike offenses, such that he is being punished again for those offenses. Not so. “In the
context of habitual criminal statutes, ‘increased penalties for subsequent offenses are
attributable to the defendant’s status as a repeat offender and arise as an incident of the
subsequent offense rather than constituting a penalty for the prior offense.’ [Citation.]”
(People v. Jackson (1985) 37 Cal.3d 826, 833.)
Again, defendant labors under a serious misapprehension about the nature of the
three strikes alternative sentencing scheme. Defendant is not being punished presently
for his past crimes (for which he already “served the time”). Rather, he is being punished
for his new crime, but his status as a recidivist offender has placed him under an
alternative calculation of the punishment for his new crime. It has long been held that
recidivism, in the commission of multiple crimes—particularly serious and violent
felonies—poses a significant danger to society that justifies the imposition of longer
sentences for subsequent offenses. (Rummel v. Estelle (1980) 445 U.S. 263, 284 [63
L.Ed.2d 382, 397, 100 S.Ct. 1133].) The imposition of such longer sentences for
7
dangerous recidivists does not violate either state or federal constitutional prohibitions
against cruel and/or unusual punishment. (See, e.g., Harmelin v. Michigan (1991) 501
U.S. 957 [115 L.Ed.2d 836, 111 S.Ct. 2680]; People v. Cooper (1996) 43 Cal.App.4th
815, 825-826.)
Fifth, in a letter addressed to this court, ostensibly advising the court of a change
of address, defendant adds the claim that his punishment is too harsh because he is being
punished more harshly than other offenders who actually harmed other people, whereas
defendant did not physically injure anyone in the commission of his crime. Defendant’s
letter hints at a claim that his punishment is unconstitutionally disproportionate, in
comparison to punishments given for other, more serious, crimes in California. “The
seriousness of the threat a particular offense poses to society is not solely dependent on
whether it involves physical injury. Consequently, the commission of a single act of
murder, while heinous and severely punished, cannot be compared with the commission
of multiple felonies.” (People v. Cooper, supra, 43 Cal.App.4th 815, 826, citing People
v. Ingram (1995) 40 Cal.App.4th 1397, 1416.)
Under the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have
independently reviewed the record in its entirety and find no arguable issues.
8
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER Acting P. J. We concur:
KING J.
CODRINGTON J.
9
AI Brief
AI-generated · verify before citing
Holding. The court affirmed the defendant's conviction and sentence, holding that the trial court properly applied the Three Strikes law to a recidivist offender and that the defendant failed to demonstrate ineffective assistance of counsel or that his sentence was unconstitutionally disproportionate.
Issues
Whether the defendant's second degree robbery conviction qualified as a strike under the Three Strikes law.
Whether the defendant received ineffective assistance of counsel regarding the challenge of prior strike convictions.
Whether the 25-years-to-life sentence for a third strike constitutes cruel and unusual punishment or is unconstitutionally disproportionate.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“Defendant’s crime, and his conduct during the commission of the crime, was sufficiently serious and/or violent to qualify as a serious or violent felony third strike.”
“Defendant was properly sentenced as a third striker after his present second degree robbery conviction.”