P. v. Redondo

Filed 8/15/06 P. v. Redondo CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

The trial court sentenced appellant, a convicted sex offender, to a prison term of 25 years to life for failing to register a new address with law enforcement. Appellant contends that the trial court abused its discretion in denying his motion to dismiss his strike prior convictions and that his sentence was cruel and unusual punishment. We affirm.

Background

At the time set for his preliminary examination, appellant entered a plea of guilty to one count of failing to inform law enforcement of his new address. (Pen. Code, §§ 290, subd. (a)(1).) He also admitted four prior strike convictions and a prior prison term. (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, 667.5, subd. (b).) Defense counsel explained that appellant was entering his plea "with no conditions." Before sentencing, defense counsel filed a motion asking the court to strike appellant's prior strike convictions under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 and arguing that a full 25-years-to-life term under the three strikes law would be cruel and unusual punishment. The prosecution filed written opposition.

Because appellant pleaded guilty before preliminary examination, and no testimony was taken at the hearing on the motion to dismiss the prior strike convictions or at sentencing, we turn to appellant's motion, the prosecution's opposition, the probation report and the remarks of the court and counsel at the motion for the circumstances of the instant offense and appellant's social and criminal history. Appellant and his two brothers were raised by a single mother. Appellant had a quick temper. He was suspended from elementary school "for fighting and throwing things at his teacher." When he was 14, he began smoking marijuana and was "sent to the boy's ranch for taking a car." His junior year of high school he was sent to the California Youth Authority (CYA) for car theft. While on CYA parole he took another car, crashed it, and was again sent to CYA where he earned his GED. Within a month of his discharge from parole, he was sentenced to 16 months in prison for taking a car.

In 1981, appellant was convicted of violating Penal Code section 211 (robbery). Appellant and three others stopped a car that had slowed down. They punched the driver, removed him from the car, and stole it.

In 1986, when appellant was 24 years old, he was convicted of one count of violating Penal Code section 288a, subdivision (c) (oral copulation with a child by force), and two counts of violating Penal Code section 288, subdivision (b) (lewd act with a child by force). Appellant broke a window to a nine-year-old boy's bedroom, took the child to a nearby yard, and committed various sex acts. Appellant fled when the police, alerted by a neighbor who had heard the boy crying, called them. Appellant was a friend of the boy's older brother. Appellant told the probation officer that the police pressured the victim of this offense into identifying him as the person who had sodomized him. Appellant was sentenced to 25 years in prison and was required to register as a sex offender under Penal Code section 290.

When appellant was released from prison in 2001 he moved into his grandmother's house on Woodhaven Drive. When appellant's grandmother died and her house was going to be sold, appellant, his mother and brother moved temporarily to the home of a friend. On June 19, 2004, appellant had contact with a 13-year-old boy in an incident that led to his conviction for battery and false imprisonment.[1] Appellant's version of this offense is that the victim and his friend were throwing rocks at a church when appellant told him to stop. The police report of the incident states that the boy had thrown a small rock at his friend when appellant aggressively rode up to the boy on his bike, yelled at him, grabbed him by the neck, and pushed him away. This caused a button to break off the boy's shirt and a scratch to his neck. After the boy reported this to his mother, she went to the residence she associated with him on Hoffman Court and confronted appellant about his behavior. Appellant simulated having a weapon and grabbed the mother's male friend, who was "approximately six, two, 165 pounds and 39 years of age" by the neck. When the police contacted appellant at the Hoffman Court address that day, he "stated that he just moved this past Monday, which is within the 10 days required by such registrants, but has still not re-registered as of the time of this report." According to the probation report, appellant moved out of the Hoffman Court residence that same day and "failed to notify . . . law enforcement . . . of the move."

The probation report states, "On September 15, 2004, after receiving information regarding [appellant's] whereabouts, and conducting an investigation that revealed the [appellant] had not been residing at his registered address for several months, agents of the Sexual Assault Felony Enforcement Task Force (SAFE) located and arrested [appellant] at a motel in San Jose." According to appellant's moving papers, he and his mother were asked to leave their temporary home with the friend on September 12 when, after appellant's mother had received some money, she declined their host's request that they reimburse him for his hospitality. Appellant, his brother and his mother moved to a motel on September 15. According to appellant's motion, he was leaving the motel and was actually on his way to comply with his Penal Code section 290 requirements when the police arrested him for the instant offense.

The probation officer described appellant's criminal history as "extensive, significant and unremitting" noting that "since his Strike offenses, [appellant] has persisted in his criminal conduct as evidenced in his convictions for DUI, Battery, and a narcotic related offense while in custody, not to mention multiple parole violations."

Appellant told the probation officer that he hoped to live with his mother and brother. He planned to care for his mother, who was ill, and, when she recovered, seek employment. His most recent employment had been for two months doing shipping and receiving at Wal-Mart. He had to quit that job because the hours kept him out past his parole curfew restrictions. In a letter to the court, appellant described the "whole situation" as a "misunderstanding" asserting, "I have never failed to fulfill the duties of my obligation pertaining to the matter at hand." Appellant told the probation officer that he should be sentenced to probation with credit for time served.

At the time set for the motion to dismiss the prior strike convictions the court said that it was prepared to issue a "tentative ruling" and that, "the defendant does come within the spirit of the strike law, and he does so in whole. This court cannot find any reason lawfully to strike any of the strike convictions. I think defendant's prior conviction[s] are of such a serious and horrendous nature and that the defendant, if you will, has never performed well while on parole. I have at least five parole violations. . . . [¶] I am troubled, deeply troubled by the misdemeanor conviction of the battery false imprisonment of the young boy, which indicates the defendant's pedophile nature, and he's still a threat to society and other persons. . . . . [I]t's the court's ruling on a tentative basis the defendant does not deserve, if you will, any striking of [his] prior convictions under 1385. I simply cannot do it under those circumstances. . . . And also, to ensure that he receives due process, I feel that it does warrant a commitment of 25 [years] to life in prison."

The Motion to Dismiss the Prior Strike Convictions

Appellant contends that the trial court abused its discretion "by refusing to strike at least one strike." The trial court has statutory authority to strike allegations of prior felony convictions in cases brought under the three strikes law. (§ 1385; People v. Superior Court (Romero), supra, 13 Cal.4th at pp. 529-530.) In People v. Carmony (2004) 33 Cal.4th 367, the Supreme Court reviewed its decisions concerning section 1385 and the Three Strikes law. "Under section 1385, subdivision (a), a 'judge . . . may, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed.' 'In Romero, we held that a trial court may strike or vacate an allegation or finding under the Three Strikes law that a defendant has previously been convicted of a serious and/or violent felony, on its own motion, "in furtherance of justice" pursuant to . . . section 1385(a).' (People v. Williams (1998) 17 Cal.4th 148, 158 . . . (Williams ).) We further held that '[a] court's discretionary decision to dismiss or to strike a sentencing allegation under section 1385 is' reviewable for abuse of discretion. (Romero, supra, 13 Cal.4th at p. 531 . . . .)" (Carmony, supra, 33 Cal.4th at p. 373.)

The Supreme Court further explained: "In reviewing for abuse of discretion, we are guided by two fundamental precepts. First, ' "[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review." ' [Citations.] Second, a ' "decision will not be reversed merely because reasonable people might disagree. 'An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.' " ' [Citation.] Taken together, these precepts 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." (Carmony, supra, 33 Cal.4th at pp. 376-377.)

The Carmony court emphasized that the three strikes law was intended to restrict courts' discretion in sentencing repeat offenders. The basic principle is to impose the enhanced punishment. "To achieve this end, 'the Three Strikes law does not offer a discretionary sentencing choice, as do other sentencing laws, but establishes a sentencing requirement to be applied in every case where the defendant has at least one qualifying strike, unless the sentencing court "conclud[es] that an exception to the scheme should be made because, for articulable reasons which can withstand scrutiny for abuse, this defendant should be treated as though he actually fell outside the Three Strikes scheme." ' [Citation.]" (Carmony, supra, 33 Cal.4th at p. 377.)

Our Supreme Court cautioned: "Consistent with the language of and the legislative intent behind the three strikes law, we have established stringent standards that sentencing courts must follow in order to find such an exception. '[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 Penal Code section 1385(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.' (Williams, supra, 17 Cal.4th at p. 161 . . . .)" (Carmony, supra, 33 Cal.4th at p. 377.)

Appellant relies on People v. Cluff (2001) 87 Cal.App.4th 991 In Cluff, the defendant had registered with the chief of police and had not changed his residence, but he failed to comply with the separate requirement that he annually update his registration by confirming that his residence had not changed.[2] The defendant had not re-offended, and a court-appointed psychologist recommended that he be granted probation. Although at trial the court refrained from determining if Cluff's failure to update his registration was negligent or intentional, the trial court denied the defendant's motion to dismiss his prior strike convictions, stating that there had been "obfuscation" by the defendant beyond a mere technical violation of the registration requirements. (Id. at p. 1002.) On appeal, the Cluff court held that under the circumstances the trial court had abused its discretion in denying the defendant's request to strike his prior convictions because "the evidence in the record [did] not support the inference of obfuscation that was central to the trial court's ruling." (Id. at p. 1004.) Because the evidence did not support the court's reason for denying the Romero request, the court vacated the sentence and remanded the case for a new Romero hearing.[3] (Id. at pp. 997-1005.)

Appellant asserts, "Appellant's record does not demonstrate that he is a career criminal. After what seems to have been a turbulent youth, he committed the sex offenses in 1984 and went to prison. His subsequent record shows that for the most part, the only person he harmed was himself, by violating parole and by driving under the influence, without, apparently, causing any damage or injury." But the trial court considered appellant's misdemeanor battery and false imprisonment convictions, as well, stating, "I am troubled, deeply troubled by the misdemeanor conviction of the battery false imprisonment of the young boy, which indicates the defendant's pedophile nature." Appellant argues that the trial court's characterization of those misdemeanors as suggesting "that appellant was trying to seduce the boy or have sexual contact with him or his friends" goes "beyond the facts that were available to him, which were contained in the police reports attached to the District Attorney's sentencing memorandum." Although the court's language was strong, the information before the court supported, at the very least, the view that appellant's contact with the boy was physically aggressive and emotionally charged, and that appellant had denied that his conduct was inappropriate. To the extent that this incident shared those characteristics with appellant's sex offense prior convictions, the trial court's reason for being troubled by it finds support in the record.

Appellant argues that respondent's suggestion that appellant kept the police ignorant of his address is not supported by the record because "it does not suggest that appellant moved to any new address where he could have been located, between June and September, even if he had been motivated to register." Appellant observes that the record is not "enlightening" about his whereabouts from June to September and argues that "if appellant was indeed homeless or transient during that summer, then the best chance for the police to contact him was where his mother and brother lived, which was on Hoffman Court, an address known to the police."

Not all violations of Penal Code section 290 are the same. We view appellant's violation of Penal Code section 290 here as more serious than that of the defendant in Cluff. The defendant in Cluff was found to have violated subdivision (a)(1)(D) of section 290, which requires an update of one's registration around one's birthday, whether the information has changed or not. He had continually lived at the address that he had given the police, and the recently enacted annual requirement had been omitted from the only document he was allowed to keep when he initially registered. In contrast, appellant's case involves subdivision (a)(1)(A), which requires one to register any change of residence. Appellant argues, "Assuming appellant was homeless, it is questionable whether there was any effective law at the time that would have required him to register a new address, since the old homeless-registration provisions of Penal Code 290 had been found unconstitutional (People v. North (2003) 112 Cal.App.4th 621), and the amendments to section 290 designed to deal with the North case did not become effective until January 1, 2005." We must assume on this record that appellant would not have pleaded guilty to this subdivision of this offense if there had been no effective law at the time to embrace the facts as known to him and his counsel.

Furthermore, one of the trial court's reasons for denying appellant's motion to dismiss his prior strike convictions was that appellant "has never performed well while on parole." Appellant candidly acknowledges that he has "a poor record of complying with his parole conditions." Given the deferential standard of review, we must conclude that the trial court's denial of appellant's motion to dismiss his prior strike convictions was not an abuse of discretion.[4]

Cruel and Unusual Punishment

Appellant contends that his 25-year-to life sentence is cruel and unusual punishment, depriving him of due process under the United States and California Constitutions.

A punishment is excessive under the Eighth Amendment if it involves the "unnecessary and wanton infliction of pain" or if it is "grossly out of proportion to the severity of the crime." (Gregg v. Georgia (1976) 428 U.S. 153, 173.) A punishment may violate article I, section 17 of the California Constitution 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." (In re Lynch (1972) 8 Cal.3d 410, 424.)

Appellant's lengthy sentence cannot be viewed just as punishment for the instant offense; it was punishment for committing a felony and doing so as a recidivist offender. In other words, he "was punished not just for his current offense but for his recidivism. Recidivism justifies the imposition of longer sentences for subsequent offenses." (People v. Cooper (1996) 43 Cal.App.4th 815, 825.)

In Rummel v. Estelle (1980) 445 U.S. 263, 284-285, the United States Supreme Court explained that society is warranted in imposing increasingly severe penalties on those who repeatedly commit felonies. In that case, the defendant was given a mandatory life sentence for stealing $120.75 and having prior convictions for fraud involving $80 worth of goods and passing a forged check for $28.36. (Id. at p. 265.) The court rejected the defendant's claim that his sentence was disproportionate to the severity of his current offense. The court pointed out that the primary goals of a recidivist statute are to "deter repeat offenders and, at some point in the life of one who repeatedly commits criminal offenses serious enough to be punished as felonies, to segregate that person from the rest of society for an extended period of time. This segregation and its duration are based not merely on that person's most recent offense but also on the propensities he has demonstrated over a period of time during which he has been convicted of and sentenced for other crimes. . . . [T]he point at which a recidivist will be deemed to have demonstrated the necessary propensities and the amount of time that the recidivist will be isolated from society are matters largely within the discretion of the punishing jurisdiction." (Id. at pp. 284-285.)

More recently, in Lockyer v. Andrade (2003) 538 U.S. 63, the court rejected a similar claim. There, the defendant stole $153.84 worth of videotapes from two stores on separate occasions. A jury convicted him of two counts of petty theft with a prior and found that he had at least two prior strike convictions. The court sentenced him under the Three Strikes law to two consecutive life terms. The record revealed the following: in 1982, the defendant suffered a state misdemeanor theft conviction and a few felony burglary convictions; in 1988, the defendant suffered a federal conviction for transporting marijuana; in 1990, the defendant suffered a state misdemeanor petty theft conviction and a second federal conviction for transporting drugs; in 1991, the defendant was arrested for a state parole violation--escape from federal prison; in 1993, the defendant was released on parole; and, in 1995, the defendant committed the two current offenses. Given these circumstances, the court did not find the defendant's two life terms to be unconstitutional.

In Ewing v. California (2003) 538 U.S. 11, the defendant was convicted of grand theft--he stole three golf clubs worth $399 each. Under the Three Strikes law, the trial court imposed a life term. The record revealed that the defendant's criminal history spanned from 1984 to 1999 and included misdemeanor and felony convictions for petty theft, auto theft, battery, burglary, robbery, possession of drugs, trespass, and unlawful possession of a firearm. There too, the court did not find the defendant's sentence to be unconstitutional.

Appellant argues, "Penal Code section 290 permits a life term if it is also proved that the defendant has two or more prior strike convictions. While the three strikes law is constitutional when applied to violators of most felonies, it is unconstitutional when applied to any person whose sole current offense is failure to register as a sex offender." Appellant argues, "Although a particularly deserving defendant may benefit from individualized consideration, the fact that the particular defendant is not personally deserving of mercy does not necessarily make his sentence constitutional if it is disproportionate to the crime."

In People v. Poslof (2005) 126 Cal.App.4th 92, the defendant was convicted of failing to register as a sex offender, and under the three strikes law, the court imposed a term of 27 years to life. The record revealed that in 1982, the defendant was convicted of inflicting corporal punishment on a child. In 1992, he was convicted of lewd conduct with a child. In 1996, he was convicted of possessing drugs. The defendant also violated parole in 1995, 1998, and 1999. He committed his current offense in 2002. In rejecting the defendant's constitutional challenge to his sentence, the court concluded that the defendant's sentence was a permissible means of punishing him and deterring others from committing future crimes. Moreover, it found that his lengthy criminal record brought him within both the letter and spirit of the Three Strikes law. Appellant's sentence and circumstances are not distinguishable from those in the cases described above and do not suggest that his punishment is unconstitutional. (Cf. also Harmelin v. Michigan (1991) 501 U.S. 957 [life without possibility of parole for possession of drugs]; People v. Cline (1998) 60 Cal.App.4th 1327 [life term for grand theft and residential burglary with prior residential burglary convictions].)

Appellant asserts, "This case requires the court to choose between two competing precedents," citing People v. Carmony (2005) 127 Cal.App.4th 1066, and People v. Meeks (2004) 123 Cal.App.4th 695. Appellant argues, "Both cases relied on the same United States Supreme Court precedents, and came to opposite conclusions." Our analysis of Meeks and Carmony leads us to conclude that appellant and his offense are sufficiently distinguishable from, and worse than, those of the defendants in these cases that even if we were to accept the resolution of any competition between them that he suggests, we would not be persuaded by his argument.

In Meeks, the defendant was convicted of failing to register as a sex offender on his birthday and on a change of address and he was given a three strikes sentence. He told the court that he believed he had registered somewhere around 12 or 13 times, but that after being diagnosed with hepatitis C and as HIV positive he became consumed by the awareness that he was dying and failed to register. The Meeks court said it was rejecting the defendant's argument that his sentence constituted cruel and unusual punishment under the United States and California Constitutions because the defendant had violated a law intended to protect public safety, he had multiple prior convictions for violent sexual crimes, and his sentence was the same as other three strike defendants who committed the same registration crime.[5]

In Carmony, the sex offender defendant registered his correct address with police one month before his birthday, as required by law, but failed to update his registration with the same information within five working days of his birthday. (People v. Carmony, supra, 127 Cal.App.4th at p. 1071.) He later pleaded guilty to failing to register as a sex offender and admitted three prior serious or violent felony convictions. (Ibid.) He was sentenced to a three-strike term of 25 years to life. On appeal, the court deemed the sentence unconstitutional. In reaching its conclusion, the court noted that the defendant's current offense involved a passive omission and "no more than a harmless technical violation of a regulatory law." (Id. at pp. 1072, 1077.) Moreover, the court pointed out that the registration requirement was designed to ensure that law enforcement authorities could readily conduct surveillance of sex offenders. However, in the defendant's case, "there was no new information to update and the state was aware of that fact. Accordingly, the requirement that defendant re-register within five days of his birthday served no stated or rational purpose of the registration law . . . ." (Id. at p. 1073.)

The Carmony court concluded that a 25-year-to-life sentence under the three strikes law for tardy registration under Penal Code section 290 was cruel or unusual punishment. It held the sentence was so disproportionate to the culpability of his offense that it shocked the conscience under the Lynch standard. Appellant argues, "if Carmony was correctly decided, then it always constitutes cruel and unusual punishment to sentence someone to 25 years to life in prison for the passive offense of failing (or forgetting) to register."

Carmony observed factual dissimilarities with Meek, stating, "We note the offense committed by Meeks was not the technical violation committed by defendant. Meeks failed to register after changing his residence and therefore, unlike in the present case, law enforcement authorities did not have Meeks' correct address and information." (Carmony, supra, 127 Cal.App.4th 1082, fn. 11.) Here, as in Meeks, appellant failed to register a change of address. Noting this distinction between the defendant in Carmony on one hand and appellant and the defendant in Meeks on the other, appellant argues, "It is of course true that a person whose whereabouts are unknown will cause the police some difficulty if they should wish to search for him, while a person whose whereabouts are known causes the police no extra effort if he has merely failed to renew an otherwise valid registration. But the failure to register does not, in itself, cause physical or financial injury to anyone. In either case, a life sentence is disproportionate to the crime." Appellant suggests that "there is no reason to believe that [appellant] did not move back to the [Hoffman Court] address" when he was released from jail after his arrest on the battery and false imprisonment charges, and that his guilty plea was based on his recognition that he was a few days late in updating his annual registration on his birthday. However, this court is not required to accept this speculation about appellant's whereabouts after his release from custody for the incident with the boy and to accept his claim that he was on his way to update his registration when he was arrested. Appellant's offense is cause for greater concern than in Meeks or Carmony because of appellant's troubling, criminal contact with the boy and the mother's friend and because it appears that the aftermath of this contact may have been at least in part responsible for appellant's moving around. The record supports the view that appellant's was more than a harmless technical violation.

Disposition

The judgment is affirmed.

_____________________________

ELIA, J.

WE CONCUR:

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RUSHING, P. J.

_____________________________

PREMO, J.

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[1] In February 2005, appellant was sentenced on these misdemeanors to 60 days in jail.

[2] When Cluff registered in October 1995, an officer gave him a form explaining the requirements for registration. Cluff signed the form, which specifically advised him that he was required to update his registration annually within (at that time) 10 days of his birthday. This was a new requirement that came into effect on January 1, 1995. It was not highlighted on the form, and Cluff did not receive a copy of the form. (Cluff, supra, 87 Cal.App.4th at p. 995.)

[3] The Cluff court strongly suggested that a three strikes term for a "technical" violation of Penal Code section 290 committed without the intent to deceive or evade law enforcement would constitute cruel and unusual punishment. (Id. pp. at 1001-1004.)

[4] We disagree with appellant to the extent that he suggests that the court was unaware that it had the discretion to strike fewer than all of his prior convictions when the court said it had no "wiggle room" to avoid a life sentence. The court cited People v. Garcia (1999) 20 Cal.4th 490, which specifically authorizes the dismissal of some, but not all, of a defendant's prior strike conviction allegations.

[5] In his stirring dissent, Justice Sims wrote, "What are we doing sending this 52-year-old dying man to state prison for 27 years to life? What has become of our society? Why has 'compassion' become a dirty word in the law? There can be no justice without a fair measure of compassion in an appropriate case. I think that, some years from now, law professors and law students will read this case and will ask, 'What on earth were they thinking?' " (Meeks, supra, 123 Cal.App.4th at pp. 712-713.)