P. v. Sliney

Filed 8/10/06 P. v. Sliney CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Browder A. Willis III, Judge. Affirmed.

Defendant Warren Everett Sliney pleaded guilty to failing to register as a sex offender (Pen. Code,^[1] § 290, subd. (g)(2)). Sliney also admitted allegations he had suffered four Three Strikes law prior convictions (§§ 667, subds. (b)-(i), 668, 1170.12) and two prison priors (§ 667.5, subd. (b)). After striking his two prison priors and denying Sliney's motion under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 to strike the prior felony conviction allegations, the court sentenced Sliney to prison under the Three Strikes law for an indeterminate term of 25 years to life.

Sliney appeals, contending the imposition of a 25-year-to-life sentence under the Three Strikes sentencing scheme for failing to register as a sex offender constitutes cruel and unusual punishment under the Eighth Amendment to the United States Constitution and article I, section 17 of the California Constitution. We affirm.

Factual Background

A. Underlying Offense Requiring Section 290 Registration

In 1993, while living in a transient camp located in the Chula Vista river bottom, Sliney attempted to molest a 12-year-old boy that was visiting his mother in the camp. To get the child to comply with his demands, Sliney threatened the boy with a BB gun and claimed to have been responsible for the highly publicized and brutal deaths of two boys several months earlier. Sliney took the boy into his tent and forced him to hold a pornographic magazine while Sliney masturbated and "talked dirty" to him. Sliney told the boy to remove his pants, but the boy refused and escaped.

Sliney pleaded guilty to two counts of attempting to commit lewd and lascivious acts upon a child under 14, one count of annoying or molesting a child under 14 while using a dangerous or deadly weapon, and one count of false imprisonment. The court sentenced Sliney to a prison term of 20 years 8 months.

B. Present Felony

Prior to his release from prison, Sliney, who was classified as a high risk sex offender, completed and signed a "Notice of Sex Offender Registration Requirement-290 P.C." form. On the form, Sliney listed 2007 Dairy Mart Road, No. 16, San Ysidro, California, as his address.

On July 5, 2004,^[2] Sliney was released from prison on parole. The next day he reported to the El Cajon parole office and met with a parole agent. During the meeting, Sliney completed two forms regarding section 290 sex offender registration and reviewed the registration requirements with his agent. Sliney listed 2004 Dairy Mart Road, No. 16, San Diego, California as his address on one of the forms he completed that day.

On July 7 Sliney reported to the San Diego Police Department Registration Center. He filled out another sex offender registration form on which he listed 2007 Dairy Mart Road, No. 16, San Diego, California as his address. Sliney told a detective he would be living with a friend with whom he had been communicating and that she was aware of his status as a sex offender. He also told the detective that he understood the sex offender registration requirements.

The following day, Sliney met with another parole officer who again reviewed the sex offender registration requirements with him. The agent requested the access code for the complex on Dairy Mart Road where Sliney indicated he would be living. Sliney told the agent he would get the code for him, but never did.

On July 13, after two unsuccessful attempts to contact Sliney at the Dairy Mart Road address to verify his residence, the parole agent issued a parolee-at-large warrant for Sliney. The following day, the agent discovered that the friend with whom Sliney indicated he would be living had moved from the Dairy Mart Road address several years earlier. The agent concluded Sliney had never resided at the given address.

As a result, a description and photograph of Sliney were disseminated through media outlets until July 21. Between July 21 and July 25, police received five tips as to Sliney's whereabouts. The reports placed Sliney in various places throughout the county and always at a location near children. One report indicated Sliney told a parent of a young boy, "I bet your child has soft skin, he has beautiful clothes."

On July 25 a resident of the same transient camp where Sliney committed his 1993 molestation attempt confirmed to police that Sliney had been living there. After being shown a photograph of Sliney, the individual admitted that Sliney had been staying with him in the camp since Sliney's release from prison. The individual arranged to have Sliney turn himself in and police arrested him an hour later in a nearby industrial park.

Discussion

I. CRUEL AND UNUSUAL PUNISHMENT

Sliney contends the imposition of a 25-year-to-life sentence under the Three Strikes sentencing scheme for failing to register as a sex offender 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.^[3] This prohibition contains only a narrow proportionality requirement in that it "forbids only extreme sentences that are 'grossly disproportionate' to the crime." (Harmelin v. Michigan (1991) 501 U.S. 957, 1001 (Harmelin) (conc. opn. of Kennedy, J.), italics added, quoting Solem v. Helm (1983) 463 U.S. 277, 288, 303 (Solem).)^[4] 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. at p. 290.) 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.^[5] The court focused only on the first factor, "'the gravity of the offense and the harshness of the penalty'" (Harmelin, supra, 501 U.S. at p. 1004 (conc. & plur. opn. of Kennedy, J.), in determining whether a sentence violated the Eighth Amendment's prohibition against cruel and unusual punishment. (Id. at pp. 1004-1006.) 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, Sliney is also a career criminal with a history of felony recidivism including prior sexual offenses against children and one prior for failing to register as a sex offender. His criminal career began in 1982 when he pleaded guilty to sexually assaulting his nine-year old niece from the time she was four or five years old. He served two years six months in prison for that offense. In 1987 Sliney pleaded guilty in Arizona to driving while intoxicated. As a result, he served 60 days in jail and received one year probation. In 1988, after exposing himself to a 12-year-old girl, Sliney pleaded guilty to failure to register as a sex offender after accepting a plea agreement that dismissed two other charges for indecent exposure and possession of child pornography. For that, Sliney was sentenced to prison for one year six months. Three months after his release from prison, Sliney took an eight-year-old boy into a hotel room, removed the child's pants, touched his genitals and masturbated in front of the boy. Sliney pleaded guilty to child molestation and was sentenced to prison for six years. In 1993, four days after he was paroled for that offense, Sliney committed the attempted molestation of the 12-year-old boy at the river bottom transient camp using a BB gun and threats of violence. Sliney was sentenced to prison for 20 years 8 months, but was paroled in July of 2004. When released from prison, Sliney never provided his correct address to parole agents or on the required section 290 sex offender registration forms. Instead, he intentionally falsified his section 290 registration forms and returned to the transient camp where he molested a boy in 1993.

Sliney's current offense is not a mere technical violation. Sliney never provided his correct address to police or parole agents, and thus law enforcement did not know of his whereabouts. His failure to correctly register was a felony offense. This offense and his four prior strike convictions made him eligible for sentencing under the Three Strikes law. Given his recidivist history of sexual offenses against children, Sliney's failure to register was more serious than the theft of golf clubs involved in Ewing, supra, 538 U.S. 11. 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 Sliney's sentence is not so grossly disproportionate to the crime that it violates the Eighth Amendment.

B. California Constitution

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 punishments 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.^[6] 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).

1. 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 Sliney has failed to show his sentence is cruel or unusual. Sliney's offense was a felony. Given his criminal history, his attempt to conceal his whereabouts elevated the nature of the current felony from a "harmless violation of a regulatory requirement" to one that is sufficiently culpable to warrant his incapacitation. (People v. Carmony (2005) 127 Cal.App.4th 1066, 1087 (Carmony).) In Carmony, the defendant was sentenced to prison for 25 years to life for failing to update his known address within five days of his birthday. The court found the sentence violated the state and federal prohibitions against cruel and unusual punishment given the technical nature of the offense since police knew his address and his address had not changed. The court specifically limited its holding to the "duplicate registration" scenario presented in that case. (Carmony, supra, 127 Cal.App.4th at p. 1073, fn. 3.)

Here, Sliney deliberately disregarded the registration requirements he admitted he knew and understood. He did not simply fail to update his known address within five days of his birthday. Unlike the defendant in Carmony, Sliney concealed his address and never told police or parole agents where he could be found. (Cf. People v. Meeks (2004) 123 Cal.App.4th 695, 708 [25-year-to-life sentence for failing to register under section 290 by providing false address was not cruel and/or unusual punishment "in light of [defendant's] long and serious criminal history"].)

Sliney's evasive conduct defeated the purpose of the registration requirement. "'The purpose of section 290 is to assure that persons convicted of the crimes enumerated therein shall be readily available for police surveillance at all times because the Legislature deemed them likely to commit similar offenses in the future. [Citation.]' [Citations.] Plainly, the Legislature perceives that sex offenders pose a 'continuing threat to society' [citation] and require constant vigilance." (Wright v. Superior Court (1997) 15 Cal.4th 521, 527.) Considering Sliney's past sexual offenses against children, it was imperative for the safety of society that his whereabouts be known to law enforcement and that he be subject to constant monitoring. Sliney admitted he discovered that his friend had moved from the address he provided the day he got out of prison, but he continued to provide a false address. Sliney had no legal excuse or justification for failing to properly register.

Regarding the nature of the offender, Sliney is a 59-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, Sliney suffered four strike priors and two prison priors which all stemmed from his repeated molestation of young children. Sliney also served an additional prison term for sexual assault on his nine-year-old niece. Regarding his state of mind, Sliney admitted he was aware of the registration requirements, but deliberately disregarded them. After examining both Sliney and the nature of his offense, we cannot say his sentence is grossly disproportionate to his culpability.

2. Intrajurisdictional Comparison of Punishments for Different Crimes

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, overruled on other grounds in People v. Deloza (1998) 18 Cal.4th 585, 600, fn. 1; 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 [a 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.

3. Interjurisdictional Comparison of Punishments for Same Crime

Regarding the third Lynch technique of comparing the challenged punishment with punishments for the same offense in other jurisdictions, Sliney asserts that "several states classify the crime as a misdemeanor." Sliney erroneously focuses only on the current charge and ignores that he is being sentenced under the Three Strikes law. Sliney was sentenced to prison for 25 years to life because he is a recidivist and a threat to society, not simply because he intentionally falsified his section 290 sex offender registration forms. His current offense is a felony. Because Sliney suffered four strike priors, his current felony conviction made him eligible for sentencing under the Three Strikes law. As a result, Sliney's sentence is punishment for both his current offense and his recidivism. Sliney 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.)

California's Three Strikes law is neither cruel nor unusual. (Ewing, supra, 538 U.S. at p. 25.) 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 People v. Ayon, supra, 46 Cal.App.4th at p. 400.) Sliney's sentence reflects the intent of the Legislature and the electorate to incapacitate habitual offenders.

After applying the Lynch analysis to this case, we hold that Sliney's 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, J.

WE CONCUR:

BENKE, Acting P. J.

HALLER, J.

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^[1] All further statutory references are to the Penal Code.

^[2] All further dates refer to calendar year 2004.

^[3] The Eighth Amendment provides: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

^[4] 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. opn. of Kennedy, J.).)

^[5] 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.)

^[6] 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."