California Court of Appeal Aug 17, 2015 No. D065113Unpublished
Filed 8/17/15 P. v. Mundy CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
S TATE OF CALIFORNIA
THE PEOPLE, D065113
Plaintiff and Respondent,
v. (Super. Ct. No. SCD246439)
ANDREW MICHAEL MUNDY,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Leo
Valentine, Jr., Judge. Affirmed.
William J. Capriola, 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, Senior Assistant Attorney General, Eric A. Swenson and
Jennifer B. Truong, Deputy Attorneys General, for Plaintiff and Respondent.
During the span of four months, Andrew Mundy forced entry into four separate
homes, ransacked them, and stole numerous valuable items from multiple victims. A jury
convicted him of four counts of first degree burglary and one count of unlawful driving
or taking a vehicle. (Pen. Code,1 §§ 459, 460; Veh. Code, § 10851, subd. (a).) Mundy
waived his jury trial right on the prior allegations, and the court found true that Mundy
convictions (§§ 667, subd. (a)(1), 668, 1192.7, subd. (c)), and one qualifying prior prison
term (§§ 667.5, subd. (b), 668).
III. Sentencing
At the sentencing hearing, the court considered the probation report, the
prosecution and defense written statements, numerous letters in support of Mundy, and
the oral statements of Mundy, one victim, and several Mundy supporters.
The probation report summarized 33-year-old Mundy's criminal history, which
began when he was a juvenile. From ages 14 to 17, Mundy committed numerous
offenses, including burglary, petty theft, possession of stolen property, and vandalism. In
2003, when he was 22, Mundy pled guilty to drug possession offenses and driving under
the influence. Shortly after, he pled guilty to burglary. In 2004, he committed his first
and second strike offenses (first degree residential burglaries), and was committed to
prison for four years. After being released from prison, Mundy was convicted of driving
under the influence in 2008, and two years later in 2010 was convicted of a misdemeanor
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battery. Two years later, he committed the five current offenses during a four-month
period while on summary probation.
The probation officer recommended the court impose a sentence of 100 years to
life plus 53 years. This recommended sentence consisted of 25 years to life for each first
degree burglary count (under the Three Strikes law), and two five-year serious felony
enhancements for each 25-year-to-life term (§ 667, subd. (a)(1)); plus nine years on the
stolen vehicle count; plus one additional year for each residential burglary for the prison
prior (§§ 667.5, subd. (b), 668).
The prosecutor agreed with this recommendation. He argued that Mundy made a
deliberate choice to continue his criminal activities, despite knowing the likely
consequences. He asserted that Mundy "clearly demonstrated that he is unable to remain
law abiding, that he willfully disobeys court orders, [and] he is a threat to the security of
others in their homes . . . ." He further noted that Mundy declined to enter into plea
bargain discussions early in the process, and made a deliberate decision to take his
chances at trial despite the strong evidence linking him to the crimes.
At the sentencing hearing, victim Richardson explained the burglary's devastating
emotional and financial consequences to his family, including his son and his elderly
father (who had since passed away). Richardson told the court that although the burglary
occurred two years ago, it continues to affect his family. Richardson said Mundy stole
more than $140,000 in property from his home and none of this property has been
recovered; his son continues to manifest a heightened fear and insecurity at home; and a
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woman was recently arrested with Social Security information that had been stolen from
his home.
Mundy opposed the requested sentence. He asked the court to strike his prior
strikes and impose a 17-year sentence. At the sentencing hearing, defense counsel stated
that Mundy understood he "is going to have to pay the price" for his "bad decisions," but
asked the court to "consider a significant determinate term rather than a life sentence" to
provide him "an ability to be a productive member of society." Counsel stressed Mundy's
strong family support and that his crimes resulted from his drug addiction. Counsel also
emphasized that Mundy's strike convictions occurred seven years earlier and he has not
had a felony conviction since that time. Counsel additionally highlighted the facts that
Mundy has no history of violence (except for his 2010 battery) and no one was injured
during the current crimes.
Mundy also submitted more than 20 letters from family members and members of
the Word of Life Worship Center (Church). Many of these supporters were present at the
sentencing hearing and several spoke at the hearing.
In the letters and oral presentations, Mundy's family portrayed him as a devoted
son, husband, and father, and discussed Mundy's positive influence on the lives of his
children and stepchildren. According to the Church members, Mundy joined the Church
shortly after he committed the February 2012 burglaries, but before committing the June
2012 crimes. The Church and family members described Mundy as a devoted religious
person who had performed good deeds for others and was committed to improving his
life. Many acknowledged Mundy's past drug addiction problems, but stated he appeared
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to have made changes in his life and emphasized Mundy's giving and charitable nature.
They detailed how Mundy has been attending services and helping with Church
activities, including volunteering to help the homeless and other needy individuals. A
treatment counselor from the East County Regional Recovery Center provided a letter
stating that Mundy "has been regularly attending" drug treatment programs and parenting
classes since November 21, 2011. Counsel also presented evidence that Mundy had
maintained a construction job during the last few years.
At the hearing, Mundy apologized to the court, the victims, and his family, stating
he realized he "made some bad choices." He said: "[It is] time for me to be a better man
and make better decisions. . . . [¶] I came into jail trying to turn from Christianity. I went
backwards. I have made bad choices in jail as well. I do need more time to reflect and
become a better man in society as well as to my family. I can't put nobody else through
this or the community."
After considering all of the written and oral submissions and argument, the court
denied Mundy's request to strike the prior strikes. The court explained its reasoning in
part:
". . . I have been asked to consider striking Mr. Mundy's strikes so that he would not be subjected to life imprisonment. In doing so the law dictates . . . that I must take into consideration the offenses as well as the nature of the perpetrator in this case . . . .
As I look at Mr. Mundy's history and . . . everything [Mundy's supporters] have communicated . . . your sentiments, your thoughts, your prayers, your faith in Mr. Mundy. [¶] Those are not factors, however, that would support the court under a legal analysis to strike the strikes. The things that the court looks for is whether or not this new offense is one that is less serious perhaps than the original strikes that someone had committed. [¶] Whether
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or not there is anyone that was injured in the commission of these felonies, whether or not the felony itself is what we consider a serious or violent felony. . . .
[Mundy's strikes are residential burglaries.] [¶] . . . [¶] . . . I listened to the evidence in the trial. . . . I have been doing this for 18 years. This is not the first residential burglary case that I have . . . heard as a trial judge . . . . For the most part someone will go into someone's house and find something that they will think is of value and they will take it and leave. [¶] In these . . . burglaries, Mr. Mundy, it stands out to the court that you spent a substantial period of time in each of these individuals' homes. You went through almost absolutely everything they owned. You ransacked their residence. You just didn't go in and take what you wanted. Their houses were turned upside down. Every statement, every testimony from the victims here was that their drawers were pulled out, furniture turned over, things were misplaced as if someone did not care at all about them.
That stood out to the Court. The other is the amount of time that it took to take the amount of property that was taken from each of these residences. It's clear to the court that there had to be some planning, you had to have known their habits, whether or not they were going to be home, when they were going to come home. They were not crimes of opportunity that may be just out of an urge. You decided to do something. This was well- planned out. It took time.
[¶] . . . [¶]
So as I try to understand . . . what was going on in your life, I look at some of the documentation that [defense counsel] provided to the court and it indicated that you were employed at this time. You were employed in a temporary construction agency. [¶] And the pay stub seems to be in and around the time that these burglaries took place. So . . . it appears to the court when you were sent out on a job you had a chance to . . . see what was happening in that community and decided what your targets were going to be.
[The crimes] were all done within a short period of time, at least the first three were. And then it appears that at least from [the] pastor's letter to the court . . . that you may have started to go to this particular church [in February 2012], where you have met the church family. [¶] . . . [I]t appears . . . that there was a period of time from perhaps February to June when this last burglary was committed by you. [¶] And then after you were arrested and bailed out, it appears that some of the service and commitment that you
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did — there is some letters here that talks about the homeless at Thanksgiving and that must have been in 2012, while these charges were pending. . . .
[¶] . . . [¶]
. . . I am entrusted to uphold the law of the state of California and in doing so try to apply as much compassion and understanding as I possibly can. I see your family members, your friends. . . . [T]hey are in pain, they hurt. They hurt for you. They hurt for the losses that they will have. [¶] Your kids will miss you. . . .
Mr. Richardson has spoken this morning the best he could under the emotional trauma I know he is experiencing. The other folks that did not come to court to speak, for whatever reasons they didn't come. But there are victims on both sides, Mr. Mundy. There are victims on both sides and the reality and the bottom line is no one had control over this but you.
. . . And maybe drugs is a large part of the reasons that you did what you did, but you did what you did, Mr. Mundy. So at this stage of this proceeding it's important to understand that I could exercise discretion because of my compassion, because of my compassion for your family members who are suffering and I don't want to see those things. I would like to the ease their pain to the extent I have the ability to do that. But those are not legal reasons. Those are not reasons that will stand up in an appellate court.
Your [strike] convictions were 2004, residential burglaries. . . . I believe you were sentenced to four years state prison. . . . And from that period of time [after you were released], you have had a couple of other convictions. They have been minor, but these offenses are the ones that I believe the Legislature has put into place this law because it is the same offense.
There is nothing that I can find, Mr. Mundy, that will justify me striking your strikes other than compassion and not wanting to see you do a life sentence. And those are the very reasons that the Supreme Court has said that the court may not exercise its discretion to avoid a penalty that the public has pretty much demanded. And so for those reasons, I'm not prepared to strike any strikes in the case."
Defense counsel then reiterated the arguments asserted in her sentencing memorandum:
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"I just want to state for the record I did include in my briefs some reasons that the court could justify striking his strike prior. The fact that the strike priors are from 2004, that other than his residential burglaries he had no criminal history related to violence. They are mostly drug and theft related. He does display remorse for his conduct. He has his criminal history as a result of . . . his addiction to controlled substances. He didn't use a weapon in any of these offenses and no one was injured. And he does demonstrate a willingness and ability to rehabilitate himself.
[T]he Three Strikes Law is a . . . life sentence in this case, and it would be disproportionate to the current offense. I think that the court can reach a large enough determinate term with all the counts and the five-year priors, that that would reach the sentencing objectives that the court has to protect the community, to punish Mr. Mundy appropriately. . . ."
The court responded:
[T]he court considered those [factors] . . . . The bottom line is I go back to Mr. Mundy's history . . . . [T]his has been happening since 1995, since he was 14 years old. . . . It has not stopped and he has residential burglary convictions in the last ten years. Those are serious, violent felonies under the law. If you disagree, deal with the voters.
Going to someone's home, it takes away any sense of security that any individual has. That's the safest place you can hope for is your own home. When that has been violated, you have been violated, your life has been violated. And you are right, there are no physical injuries but the demonstrative comments by Mr. Richardson, there is certainly psychological, emotional that may never be overcome."
The court then imposed a sentence of 44 years plus 100 years to life, composed of
the following: (1) 25 years to life each for the four first degree burglary convictions, plus
two five-year terms for the serious felony prior for each burglary conviction (§§ 667,
subd. (a)(1), 668, 1192.7); and (2) doubling the low term (two years) for the Vehicle
Code section 10851 conviction. The court struck the prison prior as it related to each of
the burglary counts. The court also ordered Mundy to pay victim restitution, restitution
fines, and other fees.
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DISCUSSION
I. Sentence Was Not Cruel or Unusual Punishment
Mundy contends his lengthy sentence constitutes cruel and unusual punishment in
violation of the United States and California Constitutions. (U.S. Const., 8th Amend.;
Cal. Const., art. I, § 17.) We reject this contention. Under applicable legal standards,
Mundy's sentence does not violate the federal or state Constitution.
A sentence violates the federal constitutional proscription against cruel and
unusual punishment if the punishment is grossly disproportionate to the severity of the
crime. (See Graham v. Florida (2010) 560 U.S. 48, 59-60; Ewing v. California (2003)
538 U.S. 11, 21 (Ewing).) When evaluating the constitutionality of a punishment, the
court examines all of the circumstances of the case, including the offender and the nature
of the offenses. (See Graham, supra, 560 U.S. at pp. 59-60; Solem v. Helm (1983) 463
U.S. 277, 290-291.) "Outside the context of capital punishment, successful challenges to
the proportionality of particular sentences [are] exceedingly rare." (Rummel v. Estelle
(1980) 445 U.S. 263, 272.) On appeal, we resolve factual disputes in favor of the
judgment, and independently review the issue of constitutionality. (People v. Mantanez
(2002) 98 Cal.App.4th 354, 358; see In re Coley (2012) 55 Cal.4th 524, 560.)
When punishment is imposed under the Three Strikes scheme, the defendant is not
being punished merely for the most recent offense, but also for recidivism. (People v.
Mantanez, supra, 98 Cal.App.4th at p. 366.) Thus, extended punishment under the Three
Strikes law can justifiably be imposed on defendants who repeatedly commit felonies
without running afoul of the constitutional proscription against cruel and unusual
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punishment. (Ewing, supra, 538 U.S. at pp. 29-30; see Lockyer v. Andrade (2003) 538
U.S. 63, 70-77 (Andrade).) However, a defendant may prevail on a cruel and unusual
punishment challenge if the "current offense bears little indication [the defendant] has
recidivist tendencies to commit offenses that pose a risk of harm to the public." (People
v. Carmony (2005) 127 Cal.App.4th 1066, 1080; see In re Coley, supra, 55 Cal.4th at p.
531.)
In Ewing, the court sentenced the defendant to 25 years to life under California's
Three Strikes law for stealing three golf clubs, as a petty theft with a prior theft
conviction. (Ewing, supra, 538 U.S. at pp. 18, 20.) His criminal history included theft-
based convictions, battery, burglary, possessing drug paraphernalia, appropriating lost
property, possessing a firearm, and trespassing. (Id. at p. 18.) In rejecting the defendant's
cruel-and-unusual punishment challenge, Justice O'Connor, writing for a plurality, found
the sentence was "not grossly disproportionate," stating: "In weighing the gravity of
Ewing's offense, we must place on the scales not only his current felony, but also his long
history of felony recidivism. Any other approach would fail to accord proper deference
to the policy judgments that find expression in the legislature's choice of sanctions. . . .
To give full effect to the State's choice of this legitimate penological goal, our
proportionality review of Ewing's sentence must take that goal into account." (Id. at pp.
29, 30-31.) Justices Scalia and Thomas agreed that Ewing's sentence did not violate the
federal Constitution, but wrote separately to express the view that the Eighth Amendment
does not contain a proportionality guarantee. (See id. at pp. 31-32 (conc. opn. of Scalia,
J.); id. at p. 32 (conc. opn. of Thomas, J.).)
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In Andrade, the petitioner stole five videotapes worth $84.70 from a store and, two
weeks later, stole four videotapes worth $68.84 from another store. (Andrade, supra, 538
U.S. at p. 66.) He was convicted of two counts of petty theft with a prior conviction, and
sentenced under the Three Strikes law to two consecutive 25-year-to-life terms. (Id. at
pp. 67-68.) His criminal history consisted primarily of theft/burglary and drug
convictions. (Id. at pp. 66-67.) After a California appellate court held the sentence did
not violate the Eighth Amendment, the United States Supreme Court held the petitioner
was not entitled to federal habeas relief because the California court's application of the
"gross disproportionality principle" was not unreasonable. (Id. at p. 77.) The court stated
that the gross disproportionality rule "reserves a constitutional violation for only the
extraordinary case." (Ibid.)
Here, as in Ewing and Andrade, Mundy's lengthy sentence was not
unconstitutional because it was properly based on his recidivist conduct. Despite
multiple criminal punishments as a juvenile and as an adult, he chose to continue his
criminal behavior. He committed several residential burglaries in 2004, resulting in his
two prior strikes and a prison term. The fact that Mundy elected to repeat (four times) the
very same serious and violent offense (§§ 667.5, subd. (c)(21), 1192.7, subd. (c)(18)) for
which he had received strike priors and which resulted in prison confinement supports the
court's conclusion that he is (and would continue to be) a recidivist offender.
The nature of the offenses supports a proportionality finding. Residential burglary
is a highly serious offense that poses a substantial risk to human life because of " 'the
danger that the intruder will harm the occupants in attempting to perpetrate the intended
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crime or to escape and the danger that the occupants will in anger or panic react violently
to the invasion, thereby inviting more violence.' " (People v. Estrada (1997) 57
Cal.App.4th 1270, 1281.) The fact that a residential burglary is committed under
fortuitous circumstances where no one is at home and no one is actually injured does not
detract from the highly invasive and risk-fraught nature of the crime.
Mundy's personal characteristics do not reflect that the indeterminate life
sentences are grossly disproportionate. Although he has a history of drug addiction, this
is not a case in which punishment was imposed on a defendant who committed a
relatively innocuous offense to support a drug habit. Mundy has persisted in committing
offenses that violate the sanctity of people's homes. Mundy's community involvement,
employment opportunities, and participation in drug treatment programs support—rather
than undermine—the propriety of the sentence. Despite having these opportunities and
resources and strong family support, and being aware that his continued dangerous
criminal behavior would result in serious punishment, Mundy chose to repeat his serious
offenses—in four separate homes. He further elected to do so in a destructive and
aggressive manner, ransacking the residences and rummaging through the highly
personal items in each home, showing a complete disrespect and disregard for the
homeowners. The circumstances support the court's finding that Mundy remains a
serious danger to society and his conduct warrants a lengthy sentence.
To support his unconstitutionality claim, Mundy argues his sentence greatly
exceeds the sentencing range applicable to residential burglary and is more severe than
the punishment imposed for many extremely violent crimes such as first degree murder.
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This contention is unavailing because Mundy's lengthy imprisonment term is not merely
for the four instances of residential burglary, but also for his recidivist conduct of
engaging in the same serious offense notwithstanding his previous convictions and
punishments.
Mundy's sentence is not cruel and unusual under the federal Constitution.
We reach the same conclusion under the "[c]ruel or unusual" prohibition in the
California Constitution. (Cal. Const., art. I, § 17, italics added.) Although some courts
have interpreted the state and federal Constitutions' provisions slightly differently,
Mundy acknowledges the analysis is materially similar in this case. (See People v.
Mantanez, supra, 98 Cal.App.4th at p. 358, fn. 7; see also People v. Cunningham (2015)
61 Cal.4th 609, 670-671; People v. Cole (2004) 33 Cal.4th 1158, 1235.) Both
Constitutions bar punishment that is "grossly disproportionate" to the crime or the
individual culpability of the defendant. (Solem v. Helm, supra, 463 U.S. at p. 288;
People v. Dillon (1983) 34 Cal.3d 441, 450, 478, fn. 25, disapproved on other grounds in
People v. Chun (2009) 45 Cal.4th 1172, 1185-1186.) Under both constitutional
prohibitions, the court considers the nature of the offense and the defendant, the
punishment for more serious offenses within the jurisdiction, and the punishment for
similar offenses in other jurisdictions. (Solem v. Helm, supra, 463 U.S. at pp. 290-291; In
re Lynch (1972) 8 Cal.3d 410, 425, 431, 436.)
A prison sentence violates the California Constitution if it is "so disproportionate
to the crime . . . that it shocks the conscience and offends fundamental notions of human
dignity." (In re Lynch, supra, 8 Cal.3d at p. 424.) For the reasons discussed above,
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Mundy's lengthy prison sentence does not shock the conscience or offend fundamental
notions of human dignity.
II. Discretionary Decision Not To Dismiss Strike Priors
A trial court has the discretion to dismiss a strike prior conviction if, in light of the
nature and circumstances of the current and prior felony convictions and the particulars
of the defendant's background, character, and prospects, the defendant is deemed outside
the spirit of the Three Strikes law in whole or in part. (People v. Williams (1998) 17
Cal.4th 148, 161.) However, the Three Strikes law "establishes a sentencing norm, [and]
carefully circumscribes the trial court's power to depart from this norm and requires the
court to explicitly justify its decision to do so. . . . [T]he law creates a strong presumption
that any sentence that conforms to these sentencing norms is both rational and proper."
(People v. Carmony (2004) 33 Cal.4th 367, 378.) On appeal, we review the trial court's
decision for abuse of discretion. (Id. at p. 374.) The defendant has the burden to clearly
show the sentencing decision was "so irrational or arbitrary that no reasonable person
could agree with it." (Id. at pp. 376-377.)
For many of the same reasons discussed above, Mundy has not shown the trial
court abused its discretion in declining to dismiss his strike priors. The court's detailed
reasoning shows it properly considered the relevant factors, and did not merely apply a
"mechanical[]" analysis. The trial court reasonably concluded that Mundy was not
outside the spirit of the Three Strikes law because he deliberately chose to repeat the
same serious criminal behavior, and did so in an aggressive and callous manner.
Although his prior strikes occurred seven years earlier, Mundy had not remained crime
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free and had committed battery and driving-under-the-influence crimes. Further, the trial
court reasonably found that his drug addiction history did not justify a lighter sentence.
The facts showed Mundy was participating in a drug treatment program in 2011 and in
2012 when he committed the crimes, and he had failed to learn from this program or from
his previous convictions and punishment.
Mundy suggests the court placed insufficient weight on the fact that his offenses
did not involve physical violence. However, the court found his offenses caused
substantial emotional and psychological trauma to his victims (as demonstrated by
Richardson's statements), and they presented a high risk of violence if a resident had
returned home while Mundy was in the house (the evidence showed he brought a knife to
at least one burglary). We likewise find unavailing Mundy's reliance on his family and
community support. The court carefully considered the supporting statements and
expressed compassion for Mundy's family, but properly found this compassion was not a
valid ground to dismiss Mundy's prior strike convictions. As for Mundy's reliance on his
involvement in his Church, the court reasonably found several factors mitigated the
significance of this involvement. For example, the court noted that a letter from Mundy's
pastor showed Mundy began attending this Church shortly after committing the first three
burglaries, and that Mundy continued to commit crimes despite his Church attendance.
The court also observed that many of Mundy's good deeds mentioned in the support
letters were performed while the charges in this case were pending.
The Three Strikes law was "devised for the 'revolving door' career criminal, and
was expressly intended 'to ensure longer prison sentences' " for individuals who commit
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qualifying second and third strikes. (People v. Strong (2001) 87 Cal.App.4th 328, 331-
332, fn. omitted; People v. Gaston (1999) 74 Cal.App.4th 310, 320.) Although the voters
recently amended the law to provide relief for certain individuals whose third strike is not
a serious or violent felony, Mundy does not fit into this category. (See §§ 1170.2, subd.
(c)(2)(C), 667, subd. (e)(2)(C).) Mundy is precisely the type of recidivist offender
targeted by the Three Strikes law.
Mundy asks us to reweigh the evidence because of the severity of the sentence.
This is not the proper role of an appellate court. This court does not reevaluate the
relevant factors or substitute its judgment for that of the trial court. We will not interfere
with the trial court's exercise of discretion when it considered all facts bearing on the
offense and the defendant to be sentenced.
DISPOSITION
Judgment affirmed.
HALLER, J.
WE CONCUR:
MCCONNELL, P. J.
NARES, J.
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AI Brief
AI-generated · verify before citing
Holding. The court affirmed the defendant's sentence, holding that the trial court did not abuse its discretion in refusing to strike the defendant's prior strike convictions and that the sentence did not constitute cruel and unusual punishment.
Issues
Did the trial court abuse its discretion in refusing to strike the defendant's prior strike convictions?
Does the defendant's sentence of 100 years to life plus 44 years constitute cruel and unusual punishment under the federal and state Constitutions?
Disposition. Affirmed
Quotations verified verbatim against the opinion
“Mundy's lengthy sentence was not unconstitutional because it was properly based on his recidivist conduct.”
“The fact that a residential burglary is committed under fortuitous circumstances where no one is at home and no one is actually injured does not detract from the highly invasive and risk-fraught nature of the crime.”