PEOPLE v. WILKINS











Filed 1/7/11






CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent, v. COLE ALLEN WILKINS, Defendant and Appellant.

G040716 (Super. Ct. No. 06NF2339) O P I N I O N

STORY CONTINUE FROM PART I….


3. Denial of Request to Instruct the Jury That a Burglary is Complete When the Perpetrator Reaches a Place of Temporary Safety
The court instructed the jury that defendant was charged with murder under the felony-murder rule based upon his alleged commission of a burglary, and that the felony-murder rule requires “the act causing the death and the burglary were part of one continuous transaction.” (CALCRIM No. 540C; see Pen. Code, § 189.) The court then gave a modified version of CALCRIM No. 549, defining a continuous transaction: “In order for the People to prove that the defendant is guilty of murder under a theory of felony murder, the People must prove that the burglary and the act causing the death were part of one continuous transaction. The continuous transaction may occur over a period of time in more than one location. [¶] In deciding whether the act causing the death and the felony were part of one continuous transaction, you may consider the following factors: [¶] 1. Whether the felony and the fatal act occurred at the same place; [¶] 2. The time period, if any, between the felony and the fatal act; [¶] 3. Whether the fatal act was committed for the purpose of aiding the commission of the felony or escape after the felony; [¶] 4. Whether the fatal act occurred after the felony but while the perpetrator continued to exercise control over the person who was the target of the felony; [¶] 5. Whether the fatal act occurred while the perpetrator was fleeing the scene of the felony or otherwise trying to prevent discovery or reporting of the crime; [¶] 6. Whether the felony was the direct cause of the death; [¶] AND [¶] 7. Whether the death was a natural and probable consequence of the felony. [¶] It is not required that the People prove any one of these factors or any particular combination of these factors. The factors are given to assist you in deciding whether the fatal act and the felony were part of one continuous transaction.”
The court denied defendant’s request to instruct the jury with CALCRIM No. 3261, which defines the escape rule. That instruction provides in pertinent part: “[The crime of burglary . . . continues until the perpetrator[s] (has/have) reached a place of temporary safety. The perpetrator[s] (has/have) reached a place of temporary safety if (he/she/they) (has/have) successfully escaped from the scene[,] and (is/are) no longer being chased[, and (has/have) unchallenged possession of the property].]” The court refused this instruction per the Bench Notes following CALCRIM No. 3261. “This instruction should not be given in a felony-murder case to explain the required temporal connection between the felony and the killing.” (Cal. Crim. Jury Instns. (2011) Bench Notes to CALCRIM No. 3261, p. 990.) The Bench Note is based upon the Supreme Court’s decision in Cavitt, supra, 33 Cal.4th 187.
The felony-murder rule is contained in Penal Code section 189, and states in pertinent part: “All murder . . . which is committed in the perpetration of . . . burglary . . . is murder of the first degree.” “‘“The purpose of the felony-murder rule is to deter felons from killing negligently or accidentally by holding them strictly responsible for killings they commit.” [Citation.] The Legislature has said in effect that this deterrent purpose outweighs the normal legislative policy of examining the individual state of mind of each person causing an unlawful killing to determine whether the killing was with or without malice, deliberate or accidental, and calibrating our treatment of the person accordingly. Once a person perpetrates or attempts to perpetrate one of the enumerated felonies, then in the judgment of the Legislature, he is no longer entitled to such fine judicial calibration, but will be deemed guilty of first degree murder for any homicide committed in the course thereof.’ [Citation.] Policy concerns regarding the inclusion of burglary in the first degree felony-murder statute remain within the Legislature’s domain, and do not authorize this court to limit the plain language of the statute.” (People v. Farley (2009) 46 Cal.4th 1053, 1121.) “The mental state required is simply the specific intent to commit the underlying felony; neither intent to kill, deliberation, premeditation, nor malice aforethought is needed. [Citations.]” (People v. Berryman (1993) 6 Cal.4th 1048, 1085, overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.)
When the felony-murder rule is invoked by the prosecution, the issue of whether the homicide occurred “in the perpetration of” the underlying felony often arises. “First degree felony murder does not require a strict causal relation between the felony and the killing. The only nexus required is that both are part of one continuous transaction. [Citations.]” (People v. Johnson (1992) 5 Cal.App.4th 552, 561.) The continuous transaction doctrine was adopted “‘for the protection of the community and its residents.’” (Cavitt, supra, 33 Cal.4th at p. 207.)
The Cavitt court recognized that the continuous-transaction doctrine and the escape rule are “two related, but distinct, doctrines.” (Cavitt, supra, 33 Cal.4th at
p. 208.) In Cavitt, Cavitt and Williams plotted with Cavitt’s girlfriend McKnight to burglarize the McKnight residence, tie up McKnight’s stepmother, Betty, and steal Betty’s jewelry. Once they were inside, Cavitt and Williams put a sheet over Betty’s head, bound her wrists and ankles, and beat her. They tied up McKnight and left her at the scene to make it look as if she, too, was a victim. Cavitt and Williams then left the scene. Betty died of asphyxiation. The defendants’ trial position was that McKnight intentionally killed her stepmother after they left the scene and had reached a place of temporary safety. (Id. pp. 193, 206.) Unlike the present case, the jury in Williams’s trial was not only instructed on the continuous transaction-rule, but was also given an escape/temporary safety instruction. Williams’s contention on appeal was that the trial court erred when it added to the temporary safety instruction a paragraph stating perpetrators have not reached a place of temporary safety if the victim of the burglary remains in the control of any of the perpetrators. He argued the law does not require all perpetrators to reach a place of temporary safety before the burglary is deemed completed. (Id. at p. 208.)
The court held that whereas the “‘escape rule’ defines the duration of the underlying felony, in the context of certain ancillary consequences of the felony^[[1]] . . . [t]he continuous-transaction doctrine, . . . defines the duration of felony-murder liability which may extend beyond the termination of the felony itself, provided the felony and the act resulting in death constitute one continuous transaction. (Cavitt, supra, 33 Cal.4th at p. 208, second italics added.) In rejecting Williams’s argument, the court stated it “would have been sufficient to have instructed the Williams jury on the continuous-transaction doctrine alone.” (Ibid.)
The genesis of a “continuous transaction” requirement in a felony-murder context is found in People v. Miller (1898) 121 Cal. 343. There, Miller tricked Mrs. Burns’s sister into bringing Nellie Ryan, his former housekeeper, to Mrs. Burns’s house. When Ryan arrived and discovered Miller was inside, she turned and left. Miller descended the stairs, exited the house, and immediately began shooting at Ryan, who ran across the street and entered the Child residence. Miller attempted to pursue Ryan and had his hand on the door handle of the Child residence when James Child “took hold of Miller.” Miller immediately turned and shot Childs. (Id. at p. 345.) The court rejected Miller’s contention that the trial court erred in instructing the jury regarding burglary, noting that section Penal Code 189 applied to killings “‘committed in the perpetration, or attempt to perpetrate . . . burglary’” and entry with the intent to kill Ryan would suffice. (Id. at pp. 346-347.) The court concluded “[t]he attempt to kill Nellie Ryan and the shooting of Childs were part of one continuous transaction.” (Id. at p. 345.)
Thirty-two years later, our Supreme Court decided People v. Boss (1930) 210 Cal. 245. In that case, Boss and Davis robbed employees of a store. (Id. at p. 247.) The defendants left the store and went into the street when an employee alighted from the store and gave chase across the street and toward an alley, where Boss turned, shot, and killed the employee. (Id. at pp. 247-248.) The defendants contended the felony-murder rule did not apply because the killing took place after the robbery had been committed. (Id. at p. 250.) In rejecting that argument, the court noted a court in a sister state with a similar felony-murder statute had held that “where the enterprise is one continuous act including carrying away of property, a murder committed by one of the defendants in flight 800 feet distant from the place of robbery in order to avoid apprehension is murder in the first degree.” (Id. p. 252.)
The court noted the existence of burglary cases holding the crime is complete upon entry, but concluded such a rule “was adopted to make punishment of this class of crime more certain. It was not intended to relieve the wrongdoer from any . . . consequences of his act by placing a limitation upon the res gestae which is unreasonable or unnatural.” (People v. Boss, supra, 210 Cal. at pp. 252-253.) Courts in sister states similar felony-murder statutes have held the rule applies to a killing committed during the res gestae of the felony.
In addressing its felony-murder rule, the Kansas Supreme Court held “[t]he felony-murder rule applies when the victim’s death occurs within the res gestae of the underlying felony. [Citation.] Res gestae has been defined as those acts done before, during, or after the happening of the principal occurrence when those acts are so closely connected with the principal occurrence as to form, in reality, a part of the occurrence. [Citation.]” (State v. Jackson (Kan. 2005) 124 P.3d 460, 463; see also Bellcourt v. State (Minn. 1986) 390 N.W.2d 269, 274 [res gestae requires killing and felony be part of one continuous transaction]; Parker v. State (Fla. 1994) 641 So.2d 369, 376 [felony-murder rule applies in “‘the absence of some definitive break in the chain of circumstances beginning with the felony and ending with the killing’”].)
Language used by the courts may have led to confusion regarding the proper application of the two related, but distinct doctrines: “[B]ecause flight following a felony has also been considered as part of the same transaction (People v. Fuller (1978) 86 Cal.App.3d 618, 623, quoting People v. Salas (1972) 7 Cal.3d 812, 822), it has generally been held that a felony continues for purposes of the felony-murder rule ‘until the criminal has reached a place of temporary safety.’ (People v. Bigelow (1984) 37 Cal.3d 731, 753.)” (People v. Portillo (2003) 107 Cal.App.4th 834, 843.) In People v. Boss, supra, 210 Cal. 245, where the court spoke of one continuous act, the court also stated the robbery had not been completed because the defendants had “not won their way even momentarily to a place of temporary safety.” (Id. at p. 250.) Even after Cavitt, the Supreme Court has used “temporary safety” language in connection with the felony-murder rule. “A robbery is not complete until the perpetrator reaches a place of temporary safety [citation] . . . .” (People v. Young (2005) 34 Cal.4th 1149, 1177, fn. omitted.)
However, as stated above, the temporary safety doctrine does not define felony-murder liability. (Cavitt, supra, 33 Cal.4th at p. 208.) The Cavitt court found that limiting the felony-murder rule to only those killings that occur prior to the felon reaching a place of temporary safety would lead to absurd and unintended results. (Id. at pp. 199-200.)
Reconciling Cavitt with cases that have discussed temporary safety as a component of the felony-murder rule, leads us to the following conclusion: for purposes of the felony-murder rule, a robbery or burglary continues, at a minimum, until the perpetrator reaches a place of temporary safety. That is to say a killing, even an accidental killing, committed while the perpetrator is in flight and prior to reaching a place of temporary safety, may be fairly said to be part of one continuous transaction with the underlying felony. But reaching a place of temporary safety does not, in and of itself, terminate felony-murder liability so long as the felony and the killing are part of one continuous transaction.
The defense’s requested instruction, to the extent it would be understood by the jurors as setting the point at which felony-murder liability terminates — which undoubtedly was the very reason it was requested — is an incorrect statement of the law and was properly refused by the trial court. (Cavitt, supra, 33 Cal.4th at p. 208.) Defendant concedes the trial court did not otherwise have a sua sponte duty to clarify the meaning of the term “continuous transaction.” (Id. at pp. 203-204.)

C. Sufficiency of the Evidence
Defendant contends the evidence does not support his conviction for first degree murder under the felony-murder rule because (1) the evidence was insufficient to prove he committed the burglary, and (2) the evidence did not prove the burglary and the death were part of one continuous course of conduct. We disagree.

1. Standard of Review
“‘“When the sufficiency of the evidence is challenged on appeal, the court must review the whole record in the light most favorable to the judgment to determine whether it contains substantial evidence — i.e., evidence that is credible and of solid value — from which a rational trier of fact could have found the defendant guilty beyond a reasonable doubt.”’ [Citations.]” (People v. Hill (1998) 17 Cal.4th 800, 848-849.) “‘On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]’ [Citation.]” (People v. Perez (2010) 50 Cal.4th 222, 229.) Reversal for insufficient evidence “is unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’ [Citation.]” (People v. Bolin (1998) 18 Cal.4th 297, 331.)


2. The Burglary
“Burglary falls expressly within the purview of California’s first degree felony-murder rule. Any burglary within Penal Code section 459 is sufficient to invoke the rule. [Citations.] Whether or not the particular burglary was dangerous to human life is of no legal import. [Citation.]” (People v. Fuller (1978) 86 Cal.App.3d 618, 623.) Although defendant was not charged with burglary, his murder conviction is based upon the felony-murder rule and the felony that triggered the rule in this case was a burglary. Defendant argues that other than the fact he was in possession of property stolen during the burglary, there is little other evidence “to support the element of entry with the intent to steal.” However, as we pointed out above in discussing the instruction on the inference permissible from possession of recently stolen property, little more is needed to support a conviction. Here there was substantial corroborating evidence. Defendant worked at a construction site near the site where the items were located before the burglary. His cell phone records show he was in the area at the time the merchandise was delivered to the residence and again around the time of the burglary. The night the appliances were stolen, he called Trivich and told her he “got some really big things for the kitchen.” There was also evidence from which an inference could be drawn that he was in a hurry to get away with the stolen items in that he did not take the time to secure them on his truck, even though he had ties in the truck. Additionally, defendant did not have license plates on his truck that night. The plates were inside the passenger compartment. A jury could reasonably infer defendant made an attempt to conceal identification of his truck by driving without the plates on his truck. Plus, he testified he “needed the stuff for the house to be built in Palm Springs.” The evidence was more than sufficient to support the jury’s determination the loot in defendant’s truck was from a burglary he committed.[2]

3. Continuous Transaction
The burglary took place in Riverside County. The death occurred in Orange County on the 91 Freeway, about 60 miles from the burglary. The incident that claimed Piquette’s life was caused by a stolen stove falling from the back of defendant’s truck into the lanes of traffic. At the time of Piquette’s death, the burglary had yet to be discovered. In support of his argument that the evidence does not demonstrate the death and the burglary were part of one continuous transaction, he asserts that (1) at 1:00 a.m. he told Trivich he had acquired large kitchen appliances and the cell phone records indicate he was traveling west to east (toward Palm Springs) at the time; (2) the death occurred four hours later, when defendant was travelling in the opposite direction, away from Palm Springs; and (3) defendant had reached a place of temporary safety and lingered there before getting on the 91 Freeway and heading back to Long Beach. He contends these facts demonstrate he (1) already had the loot when he spoke with Trivich four hours before Piquette’s death; (2) he then drove to Palm Springs with the loot; and, (3) and remained in Palm Springs for some time before bringing the loot back toward Long Beach and arriving in Orange County where the collision occurred. He argues that as a result, there is no evidence to support a conclusion the “the death occurred during efforts to escape the burglary or that the accident resulted from an attempt to conceal the property which was openly on display in the bed of the pickup truck.”
“In light of the deferential standard of review that applies to this sufficiency of evidence claim, we must reject his interpretation of the evidence.” (People v. Smith (2005) 37 Cal.4th 733, 744.) The jury could have reasonably concluded defendant left his residence in Long Beach intending to drive to Menifee to steal the appliances and that he made the telephone call to Trivich for gas money because he would need gas to drive the appliances from Long Beach, where he would get the money from Trivich, to the project in Palm Springs. The cell phone records demonstrate he was driving west to east at the time of the telephone calls. That fact, however, does not mean he was headed to Palm Springs. Menifee is south of the 91 Freeway, off of Interstate 215. Driving from Long Beach, defendant would have taken the 91 Freeway east to Interstate 215 south. The July 7, 4:30 a.m. cell phone record show his phone was pinging a cell phone tower between Interstate 215 and the 91 Freeway. The jury could have concluded he was on his way back from Menifee at that time and rejected defendant’s testimony that he went to Palm Springs that morning, just as it rejected his testimony that he bought the stolen property at a Home Depot and did not commit the burglary.
Defendant, in an apparent rush to flee the scene of the burglary, loaded up his pickup truck with the loot and left the tailgate down. He did not tie down the refrigerator, stove, and other appliances although he had ties in the truck. He then fled the scene and while he was on his way back to Long Beach to unload the loot, the stove fell off the back of his truck and Piquette died as a result. The homicide occurred while defendant was in immediate flight from the burglary to the location where he would unload the loot. The burglary and the homicide were part of a continuous transaction. “‘Once a person perpetrates or attempts to perpetrate one of the enumerated felonies, then in the judgment of the Legislature, he is no longer entitled to such fine judicial calibration, but will be deemed guilty of first degree murder for any homicide committed in the course thereof.’ [Citation.]” (People v. Farley, supra, 46 Cal.4th at p. 1121.) Here, the act that caused the homicide — the failure to tie down the load of stolen loot — occurred at the scene of the burglary, not 60 miles later when part of the unsecured load fell off the back of defendant’s truck as he drove to where he could unload and hide the loot. Accordingly, we find sufficient evidence to support the murder conviction.

D. Due Process
Defendant argues that use of the felony-murder rule on the facts of this case denied him due process of law and rendered his trial fundamentally unfair. He argues that because he was not escaping or being pursued by anyone at the time of the killing, the felony-murder rule should not apply and the only conduct being deterred by application of the rule “was a lack of care in securing the load in the bed of the truck.” Having found the evidence supports the conviction, we find no due process violation. As stated above, the purpose of the felony-murder rule is to prevent accidental or negligent killings in the perpetration of certain felonies, including burglary, by holding felons strictly responsible for killings them commit. “‘The Legislature has said in effect that this deterrent purpose outweighs the normal legislative policy of examining the individual state of mind of each person causing an unlawful killing to determine whether the killing was with or without malice, deliberate or accidental, and calibrating our treatment of the person accordingly. Once a person perpetrates or attempts to perpetrate one of the enumerated felonies, then in the judgment of the Legislature, he is no longer entitled to such fine judicial calibration, but will be deemed guilty of first degree murder for any homicide committed in the course thereof.’ [Citation.] Policy concerns regarding the inclusion of burglary in the first degree felony-murder statute remain within the Legislature’s domain, and do not authorize this court to limit the plain language of the statute.” (People v. Farley, supra, 46 Cal.4th at p. 1121.)
This is not a case where the homicide occurred because defendant committed some minor traffic violation 60 miles from the location where he had earlier committed a burglary and which only coincidentally connected the homicide and burglary together. Piquette’s death was caused by defendant’s negligent act committed while he was actively engaged in committing the burglary.[3] Had he used the ties he had in the truck and/or closed the tailgate on his truck, rather than leaving the scene in a rush to avoid detection, the homicide would not have occurred. To that end, the purpose of the felony-murder rule — to deter accidental or negligent killings is met and application of the felony-murder rule did not deny defendant due process.

E. Cruel and Unusual Punishment
Defendant’s last argument is that his punishment constitutes a violation of the state and federal constitutional prohibitions upon cruel and unusual punishment. The Attorney General counters defendant waived this argument by failing to raise the issue in the trial court.
The Eighth Amendment to the United States Constitution declares: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The cruel and unusual punishment clause is made applicable to the states through the due process clause of the Fourteenth Amendment (Robinson v. State of California (1962) 370 U.S. 660, 666-667) and “to sentences for terms of years.” (Lockyer v. Andrade (2003) 538 U.S. 63, 72.) “Embodied in the Constitution’s ban on cruel and unusual punishment is the ‘precept of justice that punishment for a crime should be graduated and proportioned to [the] offense.’ [Citation.]” (Graham v. Florida (2010) U.S. , [130 S.Ct. 2011, 2021].) The high court has held that “three factors may be relevant to a determination of whether a sentence is so disproportionate that it violates the Eighth Amendment: ‘(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.’ [Citation.]” (Ewing v. California (2003) 538 U.S. 11, 22.)
In connection with the Eighth Amendment argument, defendant argues only that his sentence is grossly disproportionate with his offense as to be prohibited. We do not find a sentence of 25 years to life for a first degree murder under the felony-murder rule to be grossly disproportionate under the Eight Amendment.
Article I, section 17, of the California Constitution proscribes “[c]ruel or unusual punishment.” A prison sentence runs afoul of article I, section 17, 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, fn. omitted.)
In his brief, defendant points out two of the techniques courts use in deciding whether or not a punishment complies with the requirements set forth in Lynch. (Lynch, supra, 8 Cal.3d at pp. 425-427.) Courts have examined the nature of the offense and/or the nature of the offender with particular regard to the degree of danger both present to society and compared the challenged penalty with the punishments prescribed for more serious offenses in the same jurisdiction. (Ibid.)
“[C]ourts must also view ‘the nature of the offender’ in the concrete rather than the abstract: although the Legislature can define the offense in general terms, each offender is necessarily an individual. Our opinion in Lynch, for example, concludes by observing that the punishment in question not only fails to fit the crime, ‘it does not fit the criminal.’ (8 Cal.3d at p. 437.) This branch of the inquiry therefore focuses 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.” (People v. Dillon (1983) 34 Cal.3d 441, 479.)
In Dillon, the defendant was convicted of first degree felony-murder, and the court found the punishment for first degree murder to be cruel and unusual. (People v. Dillon, supra, 34 Cal.3d at pp. 450, 489.) But Dillon involved a 17-year-old high school student who functioned “‘like a much younger child,’” and “‘pulled the trigger so many times because [he] was so scared.’” (Id. at pp. 451, 483.) Not so in the instant matter where defendant is an adult who, from the totality of circumstances in the record before us, appears to have carefully planned his felony. Plus, his significant criminal record indicates he poses a continuing and serious threat to public safety.
The probation report prepared by the Orange County Probation Department is almost one-inch thick. It shows this is not a case of a troubled youth who went temporarily off course and led an exemplary life until the instant crime.
Defendant was born in 1976. A petition alleging that when he was 11 years old, a girl teased him and he “produced a knife and stabbed her leg,” was sustained. The report continues that when he was 13, “a man apprehended the defendant after he attempted to steal a bicycle. The incident was reported to the police and officers searched the defendant. He had a bank card that was taken during a residential burglary the previous day. He also violated his probation by failing to report as directed and by staying away from home overnight without permission.” Also when he was 13, a petition alleging burglary of three residences was sustained. Included in the loot taken was a gun and ammunition.
When defendant was 14 years old, two petitions were sustained. In one, he violated probation. The other was another residential burglary during which another gun and ammunition were stolen.
Another petition was sustained when defendant was 15. The report states he “threw his mother on the ground, straddled and attempted to choke her. He also punched holes in the walls of their home, threatened to ‘bash’ his mother’s head with a baseball bat and held a knife near her face while moving it in a stabbing motion.”
Still while he was 15 years old, another petition was sustained. The report reads: “According to the police report, the defendant and a companion approached a man who was parking his car. The defendant held a .12-gauge shotgun against the man’s head and told him to leave the car. He and his companion forced the man into the car trunk, and then drove the car for a mile before releasing the man. The car was discovered approximately two hours later and it was crashed into a curb with the engine running. Police found the defendant and three companions in a van. The defendant had shotgun shells in his possession, and the gun was located in a nearby trash can.”
While he was still 15, defendant was sentenced to 33 years and eight months in the California Youth Authority. The report states “the defendant entered a woman’s residence while she bathed. He struck her face, knocked her on the floor and placed a pillow over her head. He tore off her panties, and then threatened to kill her if she looked at him. He unsuccessfully attempted intercourse, asked for her purse and pretended to leave her residence. He returned a few minutes later, raped and threatened to kill her again. The victim required 100 stitches and plastic surgery to treat her facial injuries.” The police reported that defendant admitted he raped the woman, and that he stated he was “angry and wanted to hurt someone.”
Defendant was released from CYA several months prior to his 25th birthday and sent to a halfway house where he remained for 15 months. At age 26, he was convicted of violating Penal Code section 290 when he moved and did not register as a sex offender.
When defendant was 28, he was convicted of violating Vehicle Code section 23152, subdivisions (a) and (b), driving under the influence. He was convicted of the same thing when he was 29 and served time in jail. With regard to that incident, the report reads: “According to the police report, officers were dispatched to the scene of a hit-and-run collision. Dispatch advised that a white pickup truck struck some bushes near the guard shack at the Crystal Cove Promenade and the driver was last seen running in a westbound direction. The driver was described as being very intoxicated.” A few weeks later, defendant was arrested again for driving under the influence while traveling from Laguna Beach to Palm Springs.
The Department of Motor Vehicles records show defendant’s bail was forfeited in 2002. He had his jail sentences suspended twice the same year. In 2004 and 2005, he was jailed again. His driver’s license was revoked in 2004, 2005, and suspended again “effective April 27, 2006 for DUI or Drugs.” The probation report states: “There were two accidents reflected on his driving record where he was declared the party found most at fault.” Records from the Orange County jail show defendant had a “major violation for mutual combat.”
The prosecutor’s report to the probation department describes defendant as “a truly dangerous individual.” He noted that defendant was “only able to remain free of new law violations for less than 18 months when he willfully failed to register as a sex offender pursuant to Penal Code section 290. The violation for failure to register takes on a more ominous significance when coupled with the allegations from an acquaintance from Long Beach who indicated that [defendant] put something into her drink during a social night out with friends in a bar and had subsequently raped her.”
When the court sentenced defendant, the judge stated: “In relation to the sentencing issue, the court would note that the pages of the sentencing report are chilling in terms of your record. I recognize that . . . your father was in state prison. You’re not unique to this court in terms of defendants who’ve had a parent in state prison. [¶] It’s clear to this court, you’re an extremely dangerous individual.”
In viewing defendant in the concrete, rather than in the abstract, we find no merit in defendant’s argument and conclude that in this case, the punishment fits the crime and the defendant. He was not subjected to cruel nor unusual punishment.
III
DISPOSITION
The judgment is affirmed.



MOORE, ACTING P. J.

WE CONCUR:


FYBEL, J.



IKOLA, J.



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