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People v. Ohlmaier3/12/2003
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.
After rejecting a 35-year offer, defendant was convicted of 9 counts arising out of the robbery of a hamburger restaurant. The trial court imposed a third strike sentence of 134 years to life. Defendant complains that a parole restriction of the three strikes law constitutes cruel and unusual punishment. He says the three strikes law, apart from the parole restriction, is unconstitutional on its face and, as applied to him, provides for cruel and unusual punishment. And he complains of the anti-nullification instruction. We reject defendant's claims and affirm the judgment.
BACKGROUND
Shortly before noon in September of 2001, defendant and a confederate entered a Fatburger restaurant. While the confederate acted as a lookout, defendant, at gunpoint, forced two employees into the restroom. He then robbed another employee of the money in the cash register. He then forced an employee to open the safe and took more money. Defendant fled with over $9,000 of the restaurant's money. He then led police on a high-speed chase, crashed his car, and managed to elude police. Police found over $8,500 in cash and Fatburger receipts in the car. A search with dogs uncovered defendant hiding in a garage. Defendant refused to comply with police orders, so they turned a dog loose on him. Defendant again managed to escape and elude the officers. They soon found him hiding nearby and arrested him. He had the rest of the robbery loot in his pockets.
A jury convicted defendant of two counts of robbery, three counts of firearm assault, two counts of false imprisonment, evading a police officer, and felonious possession of a firearm. The jury found true several firearm enhancements. Defendant admitted several prior felony convictions.
DISCUSSION
I.
As defendant analyzes the three strikes law, he is ineligible for parole for 25 years. He says this constitutes cruel and unusual punishment. He says the restriction is improperly imposed "without regard to the character of either the offender or the offenses." (Italics omitted.) He complains that the parole restriction is unusually excessive and disproportionate compared to more serious California crimes such as murder and compared to punishments imposed in other jurisdictions.
For all the reasons stated in People v. Cooper (1996) 43 Cal.App.4th 815, which extensively analyzed the three strikes law under California and federal standards, we reject defendant's claim that the three strikes parole restriction is unconstitutional on its face. The three strikes law has been repeatedly upheld and defendant has failed to persuade us that the parole restriction is separately unconstitutional.
In order to determine whether the parole restriction, as applied to defendant, is constitutional, we look to his personal information. Defendant has operated under at least three aliases. His first encounter with the justice system was as a juvenile when he was removed from his home "for stealing bikes." In 1985, he was given 30 days in jail for being under the influence of a controlled substance. In 1986, he was placed on probation with 93 days in jail for driving under the influence causing injury and possession of a controlled substance. In 1987 he went to prison for burglary. His probation was revoked on the 1986 case and he went to prison on that
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