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People v. Alcorn6/28/2002
er unaware of its authority to reduce defendant's sentence (see People v. Diaz (1992) 3 Cal.4th 495, 567) or that it abused its discretion in failing to order such reduction (see People v. Williams (1998) 17 Cal.4th 148, 161; People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 979-980). Accordingly, this contention must also be rejected.
c. Cruel and unusual punishment
We also reject defendant's contention that his sentence under the three strikes law constitutes cruel and unusual punishment. As noted in People v. Cooper (1996) 43 Cal.App.4th 815, 823-825, under the three strikes law defendants are punished not just for their current offense but for their recidivism. Moreover, irrespective of the punishment imposed in other jurisdictions for recidivism, "the needs and concerns of a particular state may induce it to treat certain crimes or particular repeat offenders more severely than any other state. Nothing in the prohibition against cruel or unusual punishment per se disables a state from responding to changed social conditions and increasing the severity with which it treats its recidivist felons." (Id. at p. 827.) Based on the present record, defendant's sentence was neither grossly disproportionate under the Eighth Amendment to the United States Constitution (People v. Cooper, supra, 43 Cal.App.4th at pp. 823-825; People v. Cartwright (1995) 39 Cal.App.4th 1123, 1135) nor does it shock the conscience and offend fundamental notions of human dignity under article I, section 17 of the California Constitution (People v. Cooper, supra, 43 Cal.App.4th at pp. 825-828; People v. Kinsey (1995) 40 Cal.App.4th 1621, 1630-1631). Defendant's argument is devoid of merit. (Cf. People v. Martinez (1999) 71 Cal.App.4th 1502, 1510-1516.)
d. Stay of section 667.5, subdivision (b) enhancement
The Attorney General contends that the trial court committed jurisdictional error by purporting to stay the section 667.5, subdivision (b) enhancement for defendant's prior conviction of possession of a controlled substance. The contention has merit. Enhancement under section 667.5, subdivision (a), may either be imposed or dismissed in furtherance of justice pursuant to section 1385, subdivision (a) (People v. Bradley (1998) 64 Cal.App.4th 386, 390), but it may not be stayed (People v. Campbell (1999) 76 Cal.App.4th 305, 311). Accordingly, the matter must be remanded for resentencing with respect to the enhancement.
DISPOSITION
The portion of the judgment staying imposition of the Penal Code section 667.5, subdivision (a) enhancement for defendant's prior conviction under Health and Safety Code section 11350 is reversed, and the matter is remanded to the trial court with directions to either dismiss the enhancement pursuant to Penal Code section 1385, subdivision (a), or impose it. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED.
We concur:
VOGEL (MIRIAM A.), Acting P. J.
RICO, J.
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