P. v. Brown

Filed 5/24/10 P. v. Brown CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

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A jury found defendant Duane Brown guilty of possessing child pornography, and sustained allegations that he had two prior felony convictions for child molestation in July 1987. Before sentencing, defendant filed a request for the trial court to exercise its discretion to strike one of the recidivist findings. (Pen. Code,  1385 [undesignated section references will be to this code].) The court, after an extensive recitation of its reasoning, declined to strike one of the findings and as a result sentenced him to an indeterminate prison term of 25 years to life. ( 667, subds. (d) & (e).)

Defendant contends the trial court abused its discretion in failing to strike one of the findings. For the first time on appeal, he also asserts the sentence is unconstitutionally cruel and/or unusual. We shall affirm the judgment.

We do not need to address the sufficiency of the evidence or prejudice, so we do not include any separate recitation of the facts underlying defendants conviction. To the extent these are relevant to his arguments, we incorporate them in the Discussion.

DISCUSSION

I

After setting out the general principles that a trial court takes into account in considering whether to strike a recidivist finding, defendants written request stated that he was outside the spirit of the aggravated punishment otherwise warranted for a three-time felony offender (i.e., a three-striker). ( 667, subd. (e).) He argued that he had not incurred any other convictions since completing his prison term for the 1987 convictions, that his present offense would be a misdemeanor in the absence of prior convictions, that he had his communitys backing (in the form of support letters), and that his possession of the pornography was a technique that a psychiatrist had recommended for channeling his sex drive to avoid reoffending.

The prosecutors opposition focused on the circumstances surrounding his past and present convictions:

Past: defendant moved in with the family of his first victim (born October 1978) in December 1984. He committed various acts of substantial sexual conduct with her before a June 1986 report to law enforcement. In June 1987, law enforcement learned that defendant had submitted film for developing that included nude photographs of himself as well as female children, one of whom was his niece (born March 1975), the second victim. A search of defendants room found additional photographs of young girls (including the second victim), hundreds of drawings of girls in sexual poses, and a videotape in which defendant disrobed the sleeping second victim and fondled her vagina. This had taken place between 1986 and 1987. The 1987 probation report noted that the second victims mother (who was defendants sister) said that defendant had molested her as well when she was young. Placed on parole in August 1991, defendant returned to prison for one more year in April 1993 because a routine search of his residence revealed dozens of photos of children in his apartment complex; he had given one neighboring child a drawing of herself that he had sketched; and his probation officer then found old nude photos of the niece in defendants wallet when arresting him.

Present: Based on an investigation of a website providing images of child pornography to registered subscribers, federal agents conducted a search of defendants apartment in July 2007.[1] There was a printed copy of a photograph hanging next to defendants computer showing an adult man attempting intercourse with a young girl. Defendants home contained thousands of printouts, cartoons, computer images, and defendant-drawn pictures of pornography of this ilk. In the course of his interview with a federal investigator, defendant freely confessed his sexual preference was limited to girls under the age of 12, which he channeled into these virtual representations on the recommendation of a psychiatrist. He noted that he had copied most of the digital images from free websites when they were more prevalent, but most of these sites had disappeared over the past several years. He had last downloaded an image about a year earlier.

Defense counsel reiterated her points at the sentencing hearing, suggesting that a 12-year maximum sentence by virtue of a single prior conviction would be adequate punishment for the sexagenarian defendant. The assistant district attorney asserted that the present offense was not a felony simply as a result of the prior convictions, but as a result of its egregious nature.

The trial court emphasized the narrowness of its discretion to strike under section 1385. It acknowledged the letters of support (including one from a stepdaughter with children of her own), which spoke highly of defendant and also commended his piousness and talent as an artist. The court noted, however, that it had to find defendant would not pose a danger to society in terms of his character, the nature of the past and present offenses, and the manner in which he conducted himself in the interim in order to strike a recidivist finding. The court believed the prior offenses were inarguably serious; while the present offense, by contrast, was only possessory, it was far from de minimis and contributed to the exploitation of the children depicted in the images. The present offense also indicated that defendant simply had been able to avoid conviction for any additional offenses, but his prurient interest continued unabated despite the earlier punishments and therefore he could not be considered outside the class of people for whom the statute prescribed aggravated punishment. Defense counsel then submitted on the probation report without making any additional arguments.

A court may exercise its discretion under section 1385 to strike an allegation or finding that a prior conviction comes within the meaning of section 667, subdivision (d) if, and only if, a defendant can be deemed outside the . . . spirit of the statute, without any consideration of extrinsic factors such as court congestion or antipathy to the sentencing consequences for the defendant, and giving preponderant weight to factors inherent in the statute such as the nature and circumstances of the present and previous felony convictions, and the defendants own background, character, and prospects. (People v. Williams (1998) 17 Cal.4th 148, 161.) The burden is on the defendant to demonstrate that the trial courts decision was irrational or arbitrary, rather than being one of the alternative reasonable readings of the facts before the court. (People v. Carmony (2004) 33 Cal.4th 367, 376-377 (Carmony).)

We first reject defendants mischaracterization of the trial courts remarks. The court did not at any point indicate that it believed it must exercise its discretion to strike the recidivist findings in an all-or-nothing manner. As noted above, defense counsel expressly asked the court to strike a single finding and sentence him as a two-time offender. Use of the shorthand clichs within or outside the spirit of section 667 does not manifest the meaning that defendant would accord it in this claim, and certainly does not overcome the strong presumption that a courts denial of a request to exercise discretion under section 1385 is proper. (Carmony, supra, 33 Cal.4th at p. 378.) Even striking a single recidivist finding requires a trial court to conclude that a defendant is outside the group at which the statute is aimed in order to sentence him less severely. (Id. at p. 377.)

Defendant also makes too much of his claim of a crime-free life. In truth, defendant has simply avoided getting caught for sanctioned behavior; the threat to societys children that he presents continues unabated, only at a remove.

We therefore disagree with defendants assertion that the evidence does not support the courts conclusion of nothing to suggest defendant is outside the spirit of the law. More accurately, the court said nothing about the prior conviction, current offense, and behavior since his imprisonment warranted favorable treatment. That he otherwise may have been a law-abiding and productive member of society within his circle did not outweigh these other factors in the courts opinion, and defendants arguments to the contrary are simply an invitation to reweigh the facts. This is plainly inadequate to establish an abuse of discretion.

II

In disregard of his failure to raise the issue initially in the trial court, defendant asserts his prison sentence is grossly disproportionate to his culpability under state and federal constitutional principles. The issue is forfeited, and in any event defendant does not even present a colorable argument.

Though it overlaps in some respects, litigation over a courts exercise of its discretion under section 1385 to strike a recidivist finding does not reach all of the criteria relevant to a claim of constitutionally excessive punishment. (People v. Cole (2001) 88 Cal.App.4th 850, 868-869.) While it is a question of law (People v. Martinez (1999) 76 Cal.App.4th 489, 496), the failure to raise the issue in the trial court deprives the People of any opportunity to develop a factual record in support of the constitutionality of the sentence, and wastes scarce judicial resources in depriving the trial court of the ability to remedy any violation in the first instance; this is why the rule of forfeiture applies generally to all proceedings, including this constitutional issue (Keener v. Jeld-Wen, Inc. (2009) 46 Cal.4th 247, 264-265 & fn. 22; People v. Norman (2003) 109 Cal.App.4th 221, 229; cf. Cole, supra, 88 Cal.App.4th at pp. 868-869 [unfair to consider this constitutional claim on appeal where not litigated in trial court as part of guilty plea, in addition to being barred for lack of certificate of probable cause]), and why as a rule we do not exercise our discretion to reach forfeited legal issues on appeal (on such facts as appear in the record) where this will result in reversal (see Imagistics Internat., Inc. v. Department of General Services (2007) 150 Cal.App.4th 581, 589).

His forfeiture relieves us of any duty to give our plenary consideration to this claim, as does the perfunctory nature of his arguments on appeal in support of it. (People v. Oates (2004) 32 Cal.4th 1048, 1068, fn. 10.) As a result, we confine our response to summarizing the exacting criteria for finding a constitutional violation, along with the observation that the present facts do not satisfy them.

A defendant who wishes to show that a sentence is cruel or unusual under the state Constitution must satisfy one or more of three criteria for demonstrating a disproportionate punishment. The first examines the nature of the offense and the offender with particular attention to the degree of danger each may present to society. The second compares the sentence with those for similar offenses under California law, which includes consideration of a defendants recidivism and not just the current offense. The last compares the sentence with those in other states, which generally is unavailing in challenging Californias recidivist statutes. (In re Lynch (1972) 8 Cal.3d 410, 425-427; People v. Martinez (1999) 71 Cal.App.4th 1502, 1510-1516; People v. Cline (1998) 60 Cal.App.4th 1327, 1337-1338.) Federal analysis generally overlaps the first criterion under California law, and thus does not warrant separate treatment.[2]

Defendant limits his argument to the first criterion under state law. He simply reiterates the factors of his age, his present offense, the absence of any other convictions until the present offense, and his compliance with registration requirements for sex offenders as compelling a conclusion of disproportionate punishment.

Although defendant may not have incurred any convictions in the years between his release from prison and his arrest for the present offense in 2007, by his own admission he had been getting pornographic images of young girls from the Internet for years before his arrest until these became scarce as a result of the anticrime efforts of the government. Defendant persisted in this behavior despite the previous punishments. Although he did not directly abuse children himself, he contributed to the abuse of the children in the images through being part of the market for the pictures, compounding the original violations with further distribution of shameful images into the hands of strangers. His sentence therefore is proportional to the far from de minimis present offense and his unregenerate character as an exploiter of children (whether real or virtual) over the course of his life.[3]

DISPOSITION

The judgment is affirmed.

BLEASE , Acting P. J.

We concur:

NICHOLSON , J.

RAYE , J.

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[1] According to defendants opening brief, the search warrant apparently relied on someone with defendants name buying pornography from the website in July 2006.

[2] The federal charter proscribes cruel and unusual punishment, a standard that is distinct from our states provision. (People v. Anderson (1972) 6 Cal.3d 628, 636-637.)

The United States Supreme Court has wrestled with whether to consider any criteria beyond the proportionality of the sentence to the nature of the offense and the offender. (Solem v. Helm (1983) 463 U.S. 277, 290-291, 292, 293 [77 L.Ed.2d 637] [proper criteria include this comparison]; Harmelin v. Michigan (1991) 501 U.S. 957, 1004-1005 [115 L.Ed.2d 836] (conc. opn. of Kennedy, J.) [affirming validity of only this criterion]; id. at pp. 1018-1019 (dis. opn. of White, J.) [affirming validity of all criteria]; Ewing v. California (2003) 538 U.S. 11, 23-24 [155 L.Ed.2d 108] (Ewing) (plur. opn. of OConnor, J.) [adopting conc. view of Kennedy, J., in Harmelin]; id. at p. 36(dis. opn. of Breyer, J.) [assuming same arguendo]; cf. id. at pp. 31-32 (conc. opns. of Scalia & Thomas, JJ.) [no constitutional right to proportional sentence].) After Ewing, it does not appear any other criterion will command a majority vote.

Under federal law, a minimum indeterminate life sentence of 25 years for a simple theft offense does not violate constitutional principles where the offender has a lengthy record (Ewing, supra, 538 U.S. at pp. 28, 29; see Lockyer v. Andrade (2003) 538 U.S. 63, 68-69, 76-77 [155 L.Ed.2d 144] [habeas will not lie because state courts conclusion -- that a minimum indeterminate life sentence of 50 years for petty thefts is proportionate under federal law -- is not unreasonable]), except where the present offense is for only a harmless technical violation of a regulatory law. (People v. Carmony (2005) 127 Cal.App.4th 1066, 1072; see id. at pp. 1072-1073 [life sentence for failure to update sex offender registration with duplicative data reaches bottom of the constitutional well under both charters].) As for subordinate federal decisions (such as defendant cites) that have invalidated sentences under California law, we are not obligated to follow them (People v. Crittenden (1994) 9 Cal.4th 83, 120, fn. 3), and we do not find them persuasive because they reflect a subtle parsing of Ewing that disregards its central theme of judicial deference to legislative power over sentencing (see Ramirez v. Castro (9th Cir. 2004) 365 F.3d 755, 777 (dis. opn. of Kleinfeld, J.).)

[3] Pursuant to this courts miscellaneous order number 2010-002 (filed March 16, 2010), we have deemed defendant to have raised the issue (without additional briefing) of whether the January 2010 amendments to section 4019 apply retroactively to his pending appeal and entitle him to additional presentence conduct credits. In People v. Brown (2010) 182 Cal.App.4th 1354 (pet. for rev. filed Apr. 19, 2010, S181963), we concluded that the amendments apply to pending appeals. As defendant is subject to registration as a sex offender ( 290) and has prior convictions for serious or violent felonies ( 288, subd. (a),  667.5, subd. (c)(6),  1192.7, subd. (c)(6)), he is entitled to accrue work and conduct credits only at the previous rate of two days for every six days served ( 4019, subds. (b)(2) & (c)(2)), with a period of six days being deemed served for every four-day period of actual custody (id., subd. (f)).