P. v. Jackson

Filed 7/27/06 P. v. Jackson CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, David J. Danielsen, Judge. Affirmed.

Defendant Wallace Jackson pleaded guilty to one count of indecent exposure and admitted an allegation that he had a prior misdemeanor conviction of indecent exposure (Pen. Code,^[1] § 314, subd. (1)). Jackson also admitted he had suffered nine strike priors (§§ 667, subd. (b)-(i), 668, 1170.12) and three prison priors (§ 667.5, subd. (b)).

Jackson appeals, contending the court abused its discretion in denying his motion under Romero, supra, 13 Cal.4th 497 and imposing the 25-year-to-life sentence. He further contends the imposition of a 25-year-to-life sentence under the Three Strikes sentencing scheme for indecent exposure is disproportionate and constitutes cruel and unusual punishment under the Eighth Amendment to the United States Constitution and article I, section 17^[2] of the California Constitution. We affirm.

FACTS

On February 24, 2005, Rachel Rodriguez, a student at San Diego City College, parked her car near the school under a bridge on "B" Street in downtown San Diego. Immediately after Rodriguez parked her car parallel to the curb, she saw another car, driven by Jackson, pull up and park behind her. As Rodriguez remained in her car talking on her cell phone to her mother, she watched Jackson move his car directly in front of her car and repark. Jackson then got out of his car wearing only a T-shirt that stopped short of covering his genitals. Rodriguez glanced over and noticed Jackson masturbating as he walked back and forth between the open driver-side door and back door of his car.

Over the phone, Rodriguez told her mother what was happening and her mother, fearing the situation might escalate, told her to hang up and call the police. As Rodriguez called the police, Jackson got in and out of his car and continued masturbating. Rodriguez reported Jackson's license plate number, but told the police operator that she did not want to file a report. Jackson left the scene in his car and Rodriguez, who saw a police officer coming behind her, went to the library. The entire incident lasted four to five minutes.

Less than an hour later, while searching the area for Jackson, a San Diego City College police officer found him sitting in his parked car in a student parking area two spaces away from a female student sitting in her parked car. The officer noted he had diaper rash ointment on his hands and pornographic magazines in his car. Because Rodriguez could not be contacted, Jackson was not arrested.

Rodriguez subsequently identified Jackson to police on two separate occasions and he was arrested a week later while at work. Police found 28 pornographic magazines, several sexually explicit photos, three pornographic videos and four jars of lubricant in his car.

DISCUSSION

I. DISCRETION TO STRIKE A STRIKE PRIOR

Jackson first contends the court abused its discretion by denying his motion under Romero, supra, 13 Cal.4th 497 and thereby declining to strike eight of his nine strike priors. We reject this contention.

Under section 1385, subdivision (a), a trial court, on its own motion and in furtherance of justice, is permitted to strike prior felony conviction allegations in Three Strikes cases. (Romero, supra, 13 Cal.4th at pp. 529-530.) "[I]n ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law, on its own motion, 'in furtherance of justice' pursuant to [section] 1385[, subdivision] (a), or in reviewing such a ruling, the court in question must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (People v. Williams (1998) 17 Cal.4th 148, 161 (Williams).)

"[A] court's failure to dismiss or strike a prior conviction allegation is subject to review under the deferential abuse of discretion standard." (People v. Carmony (2004) 33 Cal.4th 367, 374 (Carmony).) This determination is guided by two fundamental precepts^[3] that "establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (Id. at p. 377.) "'"An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge." [Citations.]'" (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 978, cited with approval in Carmony, supra, 33 Cal.4th at p. 377.)

A. Jackson's Current Offense

Jackson's current offense is a felony sex crime. As the trial court noted, although nonviolent, "[i]t is . . . a sex law. It's on the lower end of the level of sex crimes that qualify as felonies in the court system. . . . [¶] . . . [i]t is still a very serious crime." Under the Three Strikes law a qualifying third strike felony need not be violent or serious. (See People v. Strong (2001) 87 Cal.App.4th 328, 331-332.)

Here, Jackson did more than expose himself in public. He deliberately targeted his victim and committed a sexual act in front of her. After parking behind Rodriguez, Jackson deliberately repositioned his car in front of her and got out while masturbating. He faced the victim and moved toward her car while masturbating. He continued this behavior for four to five minutes before leaving the scene. After targeting one victim, Jackson did not leave the campus. Less than an hour later police found him sitting in his car parked two stalls away from another female student in her parked car. He had diaper rash cream on his hands and pornographic materials in his car.

Though nonviolent, Jackson's actions toward the victim were not trivial. Jackson was aware of the gravity of his actions as he had previously been arrested for indecent exposure three times as a juvenile and convicted once as an adult. Jackson's recidivist indecent exposure "'reveals that [he] had been taught, through the application of formal sanction, that [such] criminal conduct was unacceptable−but had failed or refused to learn his lesson.'" (Williams, supra, 17 Cal.4th at p. 163, quoting People v. Gallego (1990) 52 Cal.3d 115, 209, fn. 1 (conc. opn. of Mosk, J.).) Based on the nature and circumstances of his current offense, we cannot say Jackson falls outside the spirit of the Three Strikes law.

B. Jackson's Criminal History and Background

1. Criminal History

Jackson's criminal history is extensive. As a juvenile, he was arrested three times for indecent exposure and was committed to the California Youth Authority for a 1976 incident involving auto theft, reckless driving, and assault with a deadly weapon on a police officer. Jackson's adult criminal history began in 1979 when he was convicted of residential burglary and sentenced to prison for two years. In 1981 he again committed burglary and was sentenced to prison for six years. In 1985 he was convicted of attempted burglary, five counts of burglary of inhabited dwellings, and assault with a deadly weapon. Jackson's assault charge stemmed from one of the 1985 residential burglaries after he struck a startled female resident in the face with a ceramic pitcher, causing an injury requiring plastic surgery. While serving a 25-year sentence for the 1985 crimes, he was arrested in prison for possessing a weapon and sentenced to prison for two additional years. After serving 15 years of his 27-year sentence, Jackson was paroled in 2000. He violated parole two times, first for fighting and making terrorist threats and then for indecent exposure. Jackson's 2003 indecent exposure conviction culminated in his return to prison until 2004 when he was discharged from parole. On February 24, 2005, he committed the current felony while on probation for the 2003 indecent exposure conviction.

While his nine strike priors are 20 years old, there is nothing in the record to suggest Jackson has experienced a "crime-free cleansing period of rehabilitation." (People v. Humphrey (1997) 58 Cal.App.4th 809, 813.) On the contrary, he has led a continuous life of crime. The only appreciable period of time he remained crime-free was during his 15-year incarceration in state prison, but even then he incurred a conviction for possession of a weapon. When the court noted, "I think probably the most significant thing that I am seeing so far in this case is a simple look at Mr. Jackson's history," the court was merely highlighting that Jackson's unrelenting history of breaking the law even while on probation or parole is the most telling sign he fits within the spirit of the Three Strikes law. The court did not improperly focus only on Jackson's criminal history. An examination of his criminal history, coupled with his present felony, brings him squarely within the spirit of the Three Strikes sentencing scheme.

2. Jackson's Background

The court properly considered Jackson's background in deciding not to strike a strike prior. While inextricably linked to his criminal history, Jackson's background did contain some mitigating factors. The record indicates he was sexually and physically abused as a child and that he was diagnosed with post traumatic stress disorder, dysthymic disorder, for which he was prescribed an antidepressant, conduct disorder of adult, and exhibitionism. Jackson was also taking anger management and parenting classes before committing the current offense.

The record also indicates the court considered this information when deciding against striking a felony prior. The court indicated it read and considered the probation report as well as Dr. Bruns's psychiatric evaluation detailing Jackson's history of physical and sexual abuse. The court also indicated it considered four letters of character reference, a letter from Jackson's mother and "additional material . . . from the pastor of the Missionary Church of God in Christ . . ." submitted on Jackson's behalf. The court explicitly stated it was aware of its discretion to strike a prior and that its discretion was guided by the standards set forth in Romero, supra, 13 Cal.4th 497, and Williams, supra, 17 Cal.4th at page 161. It is clear from the record the court was aware of its discretionary authority and properly weighed and considered any mitigating factors contained in Jackson's background.

C. Jackson's Character and Prospects

1. Character

The court properly considered Jackson's character in deciding against striking a prior felony conviction allegation. As noted, ante, the court considered the letters of character reference submitted on Jackson's behalf. The court also considered testimony from Jackson, his friends, family, and acquaintances. In addition, the court considered Dr. Bruns's evaluation and a letter written by Jackson himself. The court also considered Jackson's attitude toward his earlier criminal conduct and his admission he committed the earlier burglaries "for fun." Jackson claims to want and has tried to turn his life around, but his criminal history and recidivism reflect his inability to do so. Jackson's continued criminality demonstrates "he did not add maturity to age." (Williams, supra, 17 Cal.4th at p. 163.)

2. Prospects

The court properly considered Jackson's future prospects when deciding against striking a prior. Since his release from prison in 2000, Jackson has held six jobs and been fired from four. In addition, his probation report and psychiatric evaluation show he needs, but is unable to afford^[4] or refuses to get, treatment and counseling for his problems. Although Jackson maintained a good relationship with his family and was involved in a stable relationship with his girlfriend, neither of these relationships were enough incentive for him to stop reoffending.

In addition, Jackson's claim that psychiatric treatment will increase his prospects is unpersuasive. Jackson received psychiatric treatment twice as a child and once as an adult. Despite this treatment, Jackson admits to exposing himself to female guards while in prison and has been convicted of indecent exposure two times since his release. Before the current conviction, Jackson was prescribed Wellbutrin to help cope with depression. Jackson admits he not only took the wrong dosage, but at one point, he stopped taking the medication altogether. He claims it was his "mistaken" failure to take the prescribed dosage that led to his current indecent exposure arrest. Jackson claims he feels angry and scared when he does not take the Wellbutrin, and publicly exposing himself provides the only relief from those feelings.

Because, according to Jackson, Wellbutrin helps control the feelings that contribute to his indecent exposures, Jackson's claims not only show he was being treated for his problems, but also show that Jackson's inability to take or refusal to adhere to prescribed medication does not help his prospects.

In sum, the court's decision to deny Jackson's motion under Romero, supra, 13 Cal.4th 497 was not "so irrational or arbitrary that no reasonable person could agree with it." (Carmony, supra, 33 Cal.4th at p. 377.) The record shows the court was aware of its discretionary authority to strike a prior felony conviction allegation in this case. It also shows the court conducted a thorough analysis of the relevant factors as mandated by the California Supreme Court in Williams, supra, 17 Cal.4th 148. We conclude the court did not abuse its discretion in finding Jackson, a 10-time convicted felon, falls within the spirit of the Three Strikes law.

II. CRUEL AND UNUSUAL PUNISHMENT

Jackson also contends the imposition of a 25-year-to-life sentence under the Three Strikes sentencing scheme for indecent exposure is disproportionate and constitutes cruel and unusual punishment under the Eighth Amendment to the United States Constitution and article I, section 17 of the California Constitution. We reject this contention.

A. United States Constitution

The Eighth Amendment to the United States Constitution prohibits the infliction of cruel and unusual punishment on a criminal defendant.^[5] This prohibition contains only a narrow proportionality requirement in that it "forbids only extreme sentences that are 'grossly disproportionate' to the crime."^[6] (Harmelin v. Michigan (1991) 501 U.S. 957, 1001 (Harmelin), italics added, quoting Solem v. Helm (1983) 463 U.S. 277, 288, 303 (Solem).) In establishing the current standard, a divided Harmelin court retreated from its earlier decision in Solem in which the court held the Eighth Amendment contained a strict proportionality requirement. (See Solem, supra, 463 U.S. 277.) In Harmelin, the court also restricted the three-factor test established in Solem for determining whether a sentence is so disproportionate that it violates the Eighth Amendment.^[7] The court focused only on the first factor, "'the gravity of the offense and the harshness of the penalty,'" in determining whether a sentence violated the Eighth Amendment's prohibition against cruel and unusual punishment. (Harmelin, supra, 501 U.S. at pp. 1004-1006 (conc. & plur. opn. of Kennedy, J.).) The high court noted that a comparative analysis of sentences under the second and third factors is "appropriate only in the rare case in which a threshold comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality." (Id. at p. 1005.) This approach was again followed in the court's subsequent Eighth Amendment analysis in Ewing v. California (2003) 538 U.S. 11 (Ewing).

In Ewing, the Supreme Court affirmed a 25-year-to-life sentence imposed on a defendant convicted of stealing three golf clubs. Because the defendant was a career criminal, the court determined his sentence was "justified by the State's public-safety interest in incapacitating and deterring recidivist felons, and amply supported by his own long, serious criminal record." (Ewing, supra, 538 U.S. at pp. 29-30, fn. omitted.) Following its own lead in Harmelin, the court only considered the "gravity of the offense compared to the harshness of the penalty." (Ewing, supra, at p. 28.) In weighing the gravity of the defendant's offense, the court noted "we must place on the scales not only his current felony, but also his long history of felony recidivism." (Id. at p. 29.)

Here, Jackson also has a long history of felony recidivism and his current crime is a felony sex crime. As explained, ante, Jackson is now a 10-time convicted felon who suffered nine strike priors, one of which included violence against a woman in her home. Because he is being punished as a recidivist under the Three Strikes law and not simply for his current offense, a threshold comparison of the crime and sentence does not lead to an inference of gross disproportionality. Therefore, we decline to conduct a comparative analysis of sentences under the second and third Solem factors and hold Jackson's sentence is not so grossly disproportionate to the crime that it violates the Eighth Amendment.

B. California Constitution

1. Forfeiture of Claim

Jackson's claim that his sentence violates California's constitutional prohibition against cruel or unusual punishment is presented for the first time on appeal. When a defendant fails to timely raise a claim of cruel or unusual punishment in the trial court, the defendant forfeits that claim. (See People v. Kelley (1997) 52 Cal.App.4th 568, 583; see also People v. Davis (1995) 10 Cal.4th 463, 507, fn. 8; People v. Carter (2003) 30 Cal.4th 1166, 1196, fn. 6; People v. Millwee (1998) 18 Cal.4th 96, 128-129.) However, in the interest of judicial economy, we consider the merits of his claim and hold his sentence does not violate the state's constitutional prohibition against cruel or unusual punishment.

2. Merits of Claim

Sections 17 and 24 of article I of the California Constitution set forth the same prohibition as that set forth in the Eighth Amendment. Article I, section 17 provides: "Cruel or unusual punishment may not be inflicted or excessive fines imposed." Section 24 of that article mandates that California courts interpret California's prohibition on cruel or unusual punishment in a manner consistent with the federal Constitution.^[8]

In California, a sentence may violate the state constitutional ban on cruel or unusual punishment if it is "'so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.'" (People v. Dillon (1983) 34 Cal.3d 441, 478 (Dillon) quoting In re Lynch (1972) 8 Cal.3d 410, 424 (Lynch).) In Lynch, a pre-Three Strikes law case, the California Supreme Court established three techniques to determine whether a particular sentence is grossly disproportionate to the offense for which it is imposed. (Lynch, supra, 8 Cal.3d at pp. 425-429.) A reviewing court is to: (1) examine "the nature of the offense and/or the offender, with particular regard to the degree of danger both present to society" (id. at p. 425); (2) "compare the challenged penalty with the punishments prescribed in the same jurisdiction for different offenses which, by the same test, must be deemed more serious" (id. at p. 426, italics omitted); and (3) compare "the challenged penalty with the punishments prescribed for the same offense in other jurisdictions" (id. at p. 427, italics omitted).

a. The nature of the offense and/or the offender

When examining the "nature of the offense," the courts "are to consider not only the offense in the abstract−i.e., as defined by the Legislature−but also 'the facts of the crime in question' [citation]−i.e., the totality of the circumstances surrounding the commission of the offense in the case at bar, including such factors as its motive, the way it was committed, the extent of the defendant's involvement, and the consequences of his acts." (Dillon, supra, 34 Cal.3d at p. 479.) The related inquiry into the "nature of the offender," is focused "on the particular person before the court, and asks whether the punishment is grossly disproportionate to the defendant's individual culpability as shown by such factors as his age, prior criminality, personal characteristics, and state of mind." (Ibid.)

Applying the foregoing principles, we conclude that Jackson has failed to show his sentence is cruel or unusual considering the nature of his offense and his criminal history. Jackson's offense was a felony. It was also a sex crime. Jackson deliberately targeted his victim and even repositioned his car to ensure the victim would witness his indecent exposure. He committed the current offense while on probation for his earlier indecent exposure conviction, and he committed the earlier indecent exposure while on parole. Jackson's repeated disregard for the law and for the safety and well-being of Rodriguez demonstrates he is incapable of conforming to societal norms as established by the California Legislature.

Regarding the nature of the offender, Jackson is a 46-year-old career criminal who has repeatedly demonstrated that conventional methods of punishment for his criminal acts do not deter him from reoffending. Before committing the current felony, Jackson suffered nine strike priors and three prison priors. Of his nine strike priors, all but one were for burglary of an inhabited dwelling and one included severe violence against a female in her home. Despite being on probation or parole and having a supportive family and girlfriend, he continues to reoffend. Jackson's spotty work history is also telling of his inability to conform to societal norms. As for Jackson's state of mind, while he admits he has a problem for which he needs help, he has failed to get that help. After examining both Jackson and the nature of his offense, we cannot say his sentence is grossly disproportionate to his culpability.

b. Intrajurisdictional comparison of punishments for different crimes

As the People correctly argue, the second technique established in Lynch for determining whether a sentence violates our state's prohibition against cruel or unusual punishment is inapplicable to Three Strikes cases. (See People v. Ayon (1996) 46 Cal.App.4th 385 (Ayon), overruled on other grounds in People v. Deloza (1998) 18 Cal.4th 585, 600, fn. 10; see also People v. Cline (1998) 60 Cal.App.4th 1327.) In Ayon we explained that an intrajurisdictional comparison of punishments for more serious crimes "is inapposite [to three strikes sentencing] since it is [a defendant's] recidivism in combination with his current crimes that places him under the three strikes law. Because the Legislature may constitutionally enact statutes imposing more severe punishment for habitual criminals, it is illogical to compare [defendant's] punishment for his 'offense,' which includes his recidivist behavior, to the punishment of others who have committed more serious crimes, but have not qualified as repeat felons." (Ayon, supra, 46 Cal.App.4th at p. 400, fn. omitted.) Thus we need not consider the second technique set forth in Lynch, supra, 8 Cal.3d at pages 426-427, when determining whether a sentence is cruel or unusual in Three Strikes cases.

c. Interjurisdictional comparison of punishments for same crime

Jackson's crime is a felony. Because Jackson suffered nine strike priors, his current felony conviction made him eligible for sentencing under the Three Strikes law. As a result, Jackson's sentence is punishment for both his current offense and his recidivism. Jackson fails to consider that the federal Constitution "'does not mandate adoption of any one penological theory,'" and nothing prohibits California from choosing to "incapacitat[e] criminals who have already been convicted of at least one serious or violent crime." (Ewing, supra, 538 U.S. at p. 25, quoting Harmelin, supra, 501 U.S. at p. 999.)

Jackson's interjurisdictional comparison shows California employs one of the most stringent recidivist laws in the nation. "'That California's punishment scheme is among the most extreme does not compel the conclusion that it is unconstitutionally cruel or unusual. This state constitutional consideration does not require California to march in lockstep with other states in fashioning a penal code. It does not require "conforming our Penal Code to the 'majority rule' or the least common denominator of penalties nationwide." [Citation.] Otherwise, California could never take the toughest stance against repeat offenders or any other type of criminal conduct.'" (People v. Romero, supra, 99 Cal.App.4th at p. 1433, quoting People v. Martinez (1999) 71 Cal.App.4th 1502, 1516.)

California's Three Strikes law is neither cruel nor unusual. (Ewing, supra, 538 U.S. 11.) Several states have statutory schemes that authorize life sentences for habitual offenders, and many provide for life imprisonment without the possibility of parole. (See People v. Cline, supra, 60 Cal.App.4th at p. 1338, citing Ayon, supra, 46 Cal.App.4th at p. 400.) Jackson's long sentence reflects the intent of the Legislature and the electorate to incapacitate habitual offenders.

After applying the Lynch analysis to Jackson's case, we hold that his sentence is not "so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity." (Lynch, supra, 8 Cal.3d at p. 424, fn. omitted.)

DISPOSITION

The judgment is affirmed.

NARES, Acting P. J.

WE CONCUR:

McDONALD, J.

O'ROURKE, J.

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^[1] Statutory references are to the Penal Code unless otherwise specified.

^[2] Referred to incorrectly as section 6 in appellant's opening brief.

^[3] The first precept guiding the review places the burden "'"on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary."'" (Carmony, supra, 33 Cal.4th at p. 376.) The second establishes "'"a decision will not be reversed merely because reasonable people might disagree."'" (Id. at p. 377.)

^[4] Though raised orally at sentencing, Jackson's claimed, but unsupported, inability to afford treatment is not raised on appeal.

^[5] The Eighth Amendment provides: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

^[6] Eighth Amendment analysis in noncapital sentence cases is guided by the four principles set forth in Justice Kennedy's concurrence in Harmelin: "[T]he primacy of the legislature, the variety of legitimate penological schemes, the nature of our federal system, and the requirement that proportionality review be guided by objective factors" all combine to "inform the final [principle]," which, quoted ante, has become the standard of proportionality review. (Harmelin, supra, 501 U.S. at p. 1001 (conc. & plur. opn. of Kennedy, J.).)

^[7] In Solem, supra, 463 U.S. at p. 292, the court held "a court's proportionality analysis under the Eighth Amendment should be guided by objective criteria, including (i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions." (Italics added.)

^[8] Article I, section 24 of the California Constitution provides in part: "In criminal cases the rights of a defendant . . . to not suffer the imposition of cruel or unusual punishment, shall be construed by the courts of this state in a manner consistent with the Constitution of the United States. This Constitution shall not be construed by the courts to afford greater rights to criminal defendants than those afforded by the Constitution of the United States."