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People v. Ross4/26/2004
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 977.
Defendant Connell Andy Ross appeals from the sentence imposed upon his convictions for possession of cocaine (Health & Saf. Code, § 11350, subd. (a)) and possession of narcotics paraphernalia (Health & Saf. Code, § 11364) with three prior strikes. (Pen. Code, §§ 667, subds. (b)-(i), 1170.12.) On appeal, he contends the 25-year-to-life sentence constitutes cruel and unusual punishment. On this point we are not persuaded. Defendant also argues by failing to award him any presentence custody credits the court imposed an unauthorized sentence. On this point, we shall remand to the trial court for a factual finding and granting of the appropriate custody credits, if any, as well as the imposition of mandatory fees.
RELEVANT FACTS AND PROCEDURAL BACKGROUND
On January 31, 2001, Officer Binh Vu stopped defendant and his companion. Defendant appeared nervous and Vu asked him if he had anything illegal in his pockets. Defendant answered that he had a pipe. Vu saw defendant drop a baggie. The baggie contained .2 grams of cocaine base. Vu found two glass pipes in defendant's jacket pockets, one for smoking rock cocaine and one for smoking methamphetamine.
Defendant had three prior strike convictions. In 1983 he was convicted of voluntary manslaughter (§ 192), in 1987 he was convicted of robbery (§ 211), and in 1991 he was convicted of assault by means likely to produce great bodily injury. (§ 245, subd. (a)(1).) His criminal record dates back to 1976, when he was convicted of a misdemeanor driving under the influence . (Veh. Code, § 12500.) In 1980 he was convicted of petty theft. (§ 484.) In 1981, he was convicted of a misdemeanor battery (§ 242) and a felony burglary. (§ 459.) In 1999, he was convicted of vandalism (§ 594, subd. (b)(3)) and a misdemeanor battery. (§ 242.) Throughout 2000, he sustained convictions for loitering (§ 647, subd. (d)), being intoxicated in a public place (§ 647, subd. (f)), and on three separate occasions, possession of narcotics paraphernalia. (Health & Saf. Code, § 11364.)
Defendant made a motion to strike his prior strikes and for Proposition 36 treatment. The court refused to strike the strikes and sentenced defendant to 25 years to life.
DISCUSSION
I.
Defendant contends his sentence of 25 years to life for possession of .2 grams of cocaine base is cruel and unusual punishment.
As an initial matter, we note defendant never raised a cruel punishment claim at sentencing. Had he done so, the relevant facts could have been more fully developed. In such circumstances, defendant's claim is waived. (People v. Kelley (1997) 52 Cal.App.4th 568, 583; People v. DeJesus (1995) 38 Cal.App.4th 1, 27.) Defendant did move to strike priors, however, that motion does not equate to a cruel and unusual punishment claim. Defendant submits that, if the argument was waived, then his attorney was incompetent; however, since the argument lacks merit, counsel was not obliged to make it. (See People v. Osband (1996) 13 Cal.4th 622, 678, 700-702.)
A punishment may violate the United States Constitution if it is "`grossly disproportionate' to the crime." (Harmelin v. Michigan (1991) 501 U.S. 957, 1001 [115 L.Ed.2d 836, 869] (conc. opn. of Kennedy, J.); cf. United States v. Bajakajian (1998) 524 U.S. 321, 336 [141 L.Ed.2d 314, 330-331].) A punishment may v
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