P. v. Hawkins

Filed 6/19/07 P. v. Hawkins CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

Defendant Homer Earl Hawkins was convicted of five felonies including residential burglary, robbery, assault with a vehicle likely to produce great bodily injury, and evading a police officer. As a third strike defendant, he was sentenced to 80 years to life imprisonment. He challenges his convictions for robbery and assault with a deadly weapon and several aspects of his sentence. We affirm.

Background

Stephanie Norton arrived home around noon with her two-year-old son, Benjamin, and noticed an unfamiliar blue Mercedes Benz parked in her driveway. Norton picked up her son and looked to see if anyone was at her front door. After returning to the driveway, she saw a man she later identified as Hawkins coming around the side of the house with a bag in his hand. Norton asked, Who are you and what are you doing? He said he was there from the insurance and that her husband sent him. Norton noticed that Hawkins was carrying a full pillowcase and was walking quickly toward the drivers side of the Mercedes. Suspecting she was being robbed, she walked to the drivers side of the Mercedes to intercept Hawkins, still holding Benjamin in her arms. Hawkins sat in the drivers seat and placed the pillowcase on the passenger seat. Norton stood in the open doorway with her hand on the door.

Norton told Hawkins, Thats our stuff. Give that back. Hawkins started the car and told her she better get out of the way. Norton stayed put and Hawkins started rolling the car backward a few inches. Hawkins, speaking in a serious sort of loudish and gruff tone, again said Norton better get out of the way. He did not cuss or act like he was going to attack Norton, but she was afraid she would be hit by the door if she did not get out of the way. Hawkins then backed up the car very fast and Norton moved out of the way. [H]e gunned it. All of a sudden it started shooting backwards. The tires spun and kicked up gravel from the driveway. Norton would have been hit if she had not moved quickly out of the way. The door was moving right at me, and the wheels were practically right next to me.

Norton called the police. Two sheriffs deputies spotted the Mercedes on the road and pursued it in marked vehicles with their lights and sirens activated. Hawkins drove at excessive speeds and ran several stop signs during this pursuit. The sheriffs deputies lost sight of the car, but a police officer quickly located it parked near its registered address. Hawkins was standing on the passenger side of the parked car and the pillowcase was on the ground near him. Following a foot chase, the officer apprehended Hawkins and placed him under arrest.

When Norton entered her house after Hawkins drove away, she saw that the screen on the back door had been cut and the window raised. Several items of personal property were missing from the house. This property was recovered from Hawkins possession following his arrest.

Hawkins was charged by information with first degree burglary (Pen. Code,  460, subd. (a)[1]; count 1); robbery ( 212.5, subd. (c); count 2); two counts of assault with a deadly weapon ( 245, subd. (a)(1); counts 3, 4); and evasion of a police officer (Veh. Code,  2800.2; count 5). It was alleged that Hawkins had four serious felony convictions within the meaning of section 1170.12, subdivision (c)(2); he had three serious felony convictions within the meaning of section 667, subdivision (a) (hereafter, section 667(a)); and he served nine prior prison terms within the meaning of section 667.5, subdivision (b) (hereafter, section 667.5(b)).

Hawkins represented himself in the trial court. A jury found him guilty of all counts. Hawkins waived a jury trial on the prior conviction allegations and the court found all of the allegations true.

The sentencing court denied defendants Romero motion to strike prior felony convictions noting that Hawkins had suffered 18 prior felony convictions including at least four prior strikes. The court sentenced Hawkins to state prison for 80 years to life. The court imposed the upper term for each count and, pursuant to section 1170.12, subdivision (c)(2)(A)(iii), imposed three-strikes terms of 30 years for count 1; 29 years to life for count 2; 28 years for count 3; 28 years for count 4; and 27 years for count 5. The court designated count 2 as the base term; stayed the sentences for counts 1 and 3 pursuant to section 654; ran the sentence for count 4 concurrent to the sentence for count 2; and ran the sentence for count 5 fully consecutive to the sentence for count 2. Finally, the court imposed three five-year enhancements pursuant to section 667(a) and nine one-year enhancements pursuant to section 667.5(b), for a total of 24 years in enhancements. The 80-year-to-life term resulted from the consecutive terms of 29-years-to-life and 27 years, plus the 24 years in enhancements.

Discussion

I.                    Failure to Provide Sua Sponte Instruction on Grand Theft

Hawkins argues the trial court erred by failing sua sponte to instruct the jury on grand theft from the person of another as a lesser included offense of robbery.

A trial court has a duty to instruct sua sponte on a lesser included offense if there is substantial evidence that the lesser offense, but not the greater offense, was committed. (People v. Breverman (1998) 19 Cal.4th 142, 154, 160.) Here, the trial record did not contain substantial evidence that Hawkins committed the lesser offense of grand theft from the person of another. ( 487, subd. (c).) That offense occurs when a defendant takes property that is in some way actually upon or attached to another person or carried by or held in actual physical possession by that person. (In re Jesus O. (2007) 40 Cal.4th 859, 863.) Unlike robbery, it does not occur when a defendant takes property from the immediate presence of another. (Ibid.) Here, Hawkins took a pillowcase full of Nortons personal property from her house while she was not present; he carried the property to his car while she objected but made no physical contact with the property; and he drove away with the property in his car while she stood by the car. Hawkins never took the property from Nortons person. Therefore, an instruction on the offense of grand theft from the person of another was not required.

II.                 Sufficiency of the Evidence for Assault with a Deadly Weapon

Hawkins argues there was insufficient evidence to support his convictions for assault with a deadly weapon based on his backing out of the driveway while Norton and her son were in the path of the car door.

When a conviction is challenged on the ground of insufficient evidence, the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidencethat is, evidence which is reasonable, credible, and of solid valuesuch that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578.) Hawkins specifically argues there was insufficient evidence that he contemplated committing battery when he drove from the house. He argues the evidence that he twice warned Norton to move away from his car showed that he intended to leave without hurting Norton or her son.

Hawkins confuses the required intent with subjective expectation or desire. [A]ssault does not require a specific intent to cause injury or a subjective awareness of the risk that an injury might occur. Rather, assault only requires an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another. (People v. Williams (2001) 26 Cal.4th 779, 790.) Trial evidence demonstrated that Hawkins intentionally backed his vehicle out of the driveway while warning Norton, who was standing in the open drivers side doorway, to get out of the way. A reasonable jury could infer from this evidence that Hawkins knew that the probable and direct result of his backing up the car was that the car door would strike Norton while she was holding her son. Thus, there was substantial evidence that Hawkins committed an intentional act knowing the probable and direct result of that act would be a battery.

Hawkins warnings to Norton did not shield him from criminal responsibility for taking action that would have resulted in battery had Norton not moved out of the way. When a defendant threatens to commit a battery unless the potential victim complies with a condition the defendant has no right to impose (i.e., Hawkins threatens to back into Norton unless she gets out of the way so he can leave with her property) and he has the present ability and intent to carry through with the threat, the defendant commits an assault. (People v. Page (2004) 123 Cal.App.4th 1466, 1473.)

III.               Cruel and Unusual Punishment

Hawkins argues his sentence for 80 years to life is cruel and unusual punishment that violates the state and federal constitutions. He relies on the view of Justice Stanley Mosk, expressed in concurring and dissenting opinions, that a sentence that cannot be completed in a defendants lifetime constitutes cruel and unusual punishment. (People v. Hicks (1993) 6 Cal.4th 784, 797 (dis. opn. of Mosk, J.); People v. Deloza (1998) 18 Cal.4th 585, 600-601 (conc. opn. of Mosk, J.).) He makes no effort to support his argument with the controlling decisions of the United States or California Supreme Courts. A brief review of those cases demonstrates that Hawkins sentence passes constitutional muster.

A sentence violates the federal and state constitutional prohibitions against cruel and unusual punishment when it is so extreme and grossly disproportionate to the crime for which it is imposed that it shocks the conscience and offends fundamental notions of human dignity. (Ewing v. California (2003) 538 U.S. 11, 23; In re Lynch (1972) 8 Cal.3d 410, 424.) The burden of demonstrating such disproportionality rests with the defendant. (People v. Wingo (1975) 14 Cal.3d 169, 174; People v. Weddle (1991) 1 Cal.App.4th 1190, 1196-1197.) Findings of disproportionality have occurred with exquisite rarity in the case law. (Weddle, at p. 1196.)

Hawkins sentence was neither grossly disproportionate nor did it shock the conscience or offend fundamental notions of human dignity. Hawkins had a lengthy criminal history that included numerous residential burglaries. As the trial court told Hawkins at his sentencing, You made it your profession to invade other peoples homes and steal their property. In the instant case, Hawkins nearly ran over Norton and her two-year-old son because, as the trial court said, Norton had the audacity to demand the return of her property. He then engaged in a high speed chase, again raising the risk of serious injuries or fatalities to innocent bystanders as well as law enforcement personnel. In these circumstances, Hawkins admittedly lengthy sentence was not cruel or unusual punishment.

The conclusion we reach is fully consistent with other cases where courts have found sentences not to be cruel and unusual. For example, in Lockyer v. Andrade (2003) 538 U.S. 63, the United States Supreme Court affirmed two consecutive 25-years-to-life terms following a third strike conviction for stealing nine videotapes worth approximately $150. In Ewing v. California, supra, 538 U.S. 11, the same court approved a 25-years-to-life sentence under the three strikes law for stealing three golf clubs. Cases where courts have found sentences to be cruel and unusual are easily distinguishable. In Weems v. United States (1910) 217 U.S. 349, a federal disbursing officer convicted of making two false entries in his cash books was sentenced to 15 years at hard labor. In In re Lynch, supra, 8 Cal.3d at p. 413, a defendant convicted of a second offense of indecent exposure was sentenced to an indeterminate life term.

IV.              Cunningham Error in Imposing Upper Terms

Hawkins argues the trial court violated his Sixth Amendment rights by imposing the upper term for all five counts based on facts neither admitted by the defendant nor found true by a jury beyond a reasonable doubt.

The trial court imposed upper term sentences on all five counts for the following reasons: Your crime involves the threat of great bodily harm. You used a deadly weapon, that being your car. The manner in which the crime was carried out indicated planning. Your prior convictions are numerous. And you have served nine prior prison terms in connection with those prior felony convictions. The court did not make a finding of mitigating circumstances.

In Cunningham v. California (2007) 127 S.Ct. 856, the Supreme Court held that Californias statutory scheme authorizing judges to determine whether to impose upper term sentences violates the Sixth Amendment. (Id. at p. 868.) Except for a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.  (Ibid., quoting Apprendi v. New Jersey (2000) 530 U.S. 466, 490.) Failure to submit a sentencing factor to a jury in violation of the Sixth Amendment requires reversal unless the court determines the error was harmless beyond a reasonable doubt. (Washington v. Recuenco (2006) 126 S.Ct. 2546, 2553; Chapman v. California (1967) 386 U.S. 18, 24.)

One of the aggravating circumstances cited by the trial court was that Hawkins prior convictions were numerous. (See Cal. Rules of Court, rule 4.421(b)(2).) The fact of Hawkins prior convictions is exempt from the Cunningham requirement that factors justifying the upper term be submitted to a jury and found true beyond a reasonable doubt. (Cunningham v. California, supra, 127 S.Ct. at p. 868.) Therefore, the court properly found that Hawkins prior convictions were numerous, based on his 18 prior convictions. Assuming for purposes of argument that a finding that a defendants prior convictions were numerous is not exempt from Cunningham (but see People v. Waymire (2007) 149 Cal.App.4th 1448, 1456), we have no difficulty concluding beyond a reasonable doubt that, had the issue been submitted to a jury, the jury would have found Hawkins 18 convictions were numerous. We further conclude beyond a reasonable doubt that, had the trial judge been limited to relying on the sole aggravating circumstance of Hawkins numerous prior convictions to determine whether to impose the upper term, he still would have imposed the upper term. The court placed great emphasis on Hawkins criminal history as he commenced sentencing. Mr. Hawkins, among your 20 or so prior felonies, your records replete with residential burglaries. You made it your profession to invade other peoples homes and steal their property. You were caught doing this in 1979, 1985, and 1993, before being caught doing so again in this case. The court found no mitigating circumstances. In light of the courts obvious concern about Hawkins long criminal history, we conclude beyond a reasonable doubt that the court would have found that the single aggravating circumstance of numerous prior convictions outweighed the nonexistent mitigating circumstances and warranted imposition of upper term sentences. (Cf. People v. Waymire, supra, 149 Cal.App.4th at p. 1458.)

V.                 Dual Use of Conviction in Imposing Enhancements

Hawkins argues the trial court erred by relying on a single prior criminal case to impose both a five-year enhancement pursuant to section 667(a) and a one-year enhancement pursuant to section 667.5(b).

The trial court imposed a one-year enhancement pursuant to section 667.5(b) for Prior 8 in the information, which alleged that on or about March 29, 1985 in case number 96269, Hawkins was convicted in Santa Clara Superior Court of the crime(s) of Penal Code section 459-460.1 (2 [counts]) a felony, and that he/she then served a separate term in state prison for said offense. The court imposed a five-year enhancement pursuant to section 667(a) for Prior 16, which alleged that on or about March 29, 1985 in case number 96269, Hawkins was convicted in Santa Clara Superior Court of residential burglary (2 [counts]). The original probation officers report for case number 96269 states that Hawkins committed two residential burglaries. The first took place in the morning of September 12, 1984 and the second took place at a different house on September 13, 1984. Hawkins was convicted of two counts of first degree burglary and was sentenced to four years in prison for one count and a consecutive term of one year, four months for the second count.

In People v. Jones (1993) 5 Cal.4th 1142, the Supreme Court held, when multiple statutory enhancement provisions are available for the same prior offense, one of which is a section 667 enhancement, the greatest enhancement, but only that one, will apply. (Jones, at p. 1150.) Enhancements imposed pursuant to section 667.5(b), although often referred to as prior prison term enhancements, are imposed for that particular subset of prior felony convictions that were deemed serious enough by earlier sentencing courts to warrant actual imprisonment. (People v. Prather (1990) 50 Cal.3d 428, 440, quoting Cal. Const., art. I,  28, subd. (f); see Jones, at p. 1148.) That is, a section 667.5(b) enhancement is imposed for the prior offense underlying a prior prison term and cannot be imposed in addition to a section 667(a) enhancement for the same prior offense. (Jones, at pp. 1149-1150.)

Here, the trial court imposed both a section 667(a) enhancement and a section 667.5(b) enhancement for the same prior criminal case. That case, however, involved two offenses committed on different dates, resulting in separate convictions with consecutive terms for each conviction. The trial court did not run afoul of Jones, supra, 5 Cal.4th 1142 by imposing a section 667(a) enhancement for one of the residential burglary convictions (either the conviction that resulted in the four-year base term or the conviction that resulted in the one year four month consecutive term) and a section 667.5(b) enhancement for the other. A similar use of enhancements was upheld in People v. Gonzales (1993) 20 Cal.App.4th 1607, where the trial court imposed both a section 667(a) and a section 667.5(b) enhancement for a defendant who served a single prison term for two separate crimes. (Gonzales, at p. 1610.) The offenses were charged in separate criminal cases for which concurrent sentences were imposed. (Ibid.)

Disposition

The judgment is affirmed.

GEMELLO, J.

We concur.

JONES, P.J.

SIMONS, J.

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[1] All statutory references are to the Penal Code unless otherwise indicated.