P. v. Robinson

Filed 4/19/07 P. v. Robinson CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Janet I. Kintner, Judge. Affirmed.

A jury convicted Fezell Robinson, Jr. of possession of cocaine (Health & Saf. Code,  11350, subd. (a); count 1), with resisting an executive officer (Pen. Code,^[1] 69; count 2), and of possessing narcotics paraphernalia (Health & Saf. Code,  11364; count 3). In a bifurcated proceeding, the trial court found true allegations that Robinson had suffered a prior prison term ( 667.5, subd. (b)) and four serious felony strike convictions under the Three Strikes law ( 667, subds. (b)-(i), 668, 1170.12). The court sentenced Robinson to prison for a total term of 26 years to life.

Robinson appeals, contending he was denied his right to due process by the court's failure to instruct the jury that resisting an executive officer required a specific intent and his life term for possession of cocaine base constitutes cruel and unusual punishment. Finding no merit in either assertion, we affirm.

FACTUAL BACKGROUND

Because Robinson does not challenge the sufficiency of the evidence to support his convictions, we merely summarize the facts presented at trial as background for our discussion. At about 7:00 p.m. on July 1, 2005, San Diego Police Officers John Carroll and Phillip Rice, on patrol in a marked car, conducted a traffic stop of a Ford Mustang that had a covered license plate. When a records check revealed the driver of the Mustang had an outstanding warrant for his arrest, the officers removed him from the car and placed him in handcuffs. Two passengers in the Mustang were also ordered out of the car so the officers could search it. Carroll asked the passenger in the right backseat, later identified as Robinson, to face the car when he got out, and asked him whether he had anything illegal in his possession. When Robinson said, "no," Carroll asked if he would mind being searched. Robinson replied, "No, go ahead, check. I don't have anything illegal." During the search of Robinson's person, Carroll found a glass pipe that is used for smoking narcotics in his left front pocket. Carroll then arrested Robinson.

When Carroll reached for some handcuffs, Robinson turned toward Carroll, pushed him in the chest, knocking him to the ground, and attempted to run past Officer Rice. As he did so, Carroll, who had gotten up, grabbed Robinson by the waist to keep him from fleeing, put his "weight on him and [they] both landed on the ground." Robinson initially hit Carroll in the head to try to free himself, and then continued to swing his arm and kick Carroll numerous times on his head and body. Both officers repeatedly yelled at Robinson to stop resisting. Carroll then struck Robinson four to six times on the upper torso to no avail and Rice got on top of him in an attempt to control his movements. As the struggle continued, Robinson told the officers, "Shoot me, shoot me in the head. I ain't going back to jail. You're going to have to kill me." Eventually, Carroll was able to administer a "carotid restraint" on Robinson which caused him to lose consciousness for a few moments, allowing the officers to handcuff him. After Robinson regained consciousness, he continued to struggle with the officers as they tried to place him in the patrol car. As a result of the fight with Robinson, Carroll's uniform was torn, his badge and name plate bent, and he suffered abrasions on both knees. Rice also suffered minor abrasions on one of his knees and hurt his elbow during the struggle with Robinson.

In a subsequent search of the right rear seat of the Mustang where Robinson had earlier been seated, Carroll found a baggie containing a white rock which he believed to be a controlled substance. After Robinson was transported to police headquarters, Carroll read him his rights under Mirandav. Arizona (1966) 384 U.S. 436 and Robinson agreed to talk. When Carroll asked Robinson what was in the white baggie, he said, "It's rock. I bought it downtown. It's mine." Robinson then clarified it was cocaine that he had bought for $10. When asked why he had tried to run and why he had became combative, Robinson replied he did so because he was scared, he was getting married soon and he had not done "rock" in a while. When questioned why he had pushed Carroll in the chest, Robinson said he did not remember that happening, he was sorry, and he didn't mean to fight the officers.

It was stipulated that the white-rock substance impounded by the officers tested positive for .05 grams of cocaine base.

DISCUSSION

I

INSTRUCTIONAL ERROR CLAIM

During jury instruction discussions, the trial court stated, among other things, it would give CALCRIM No. 250 on general intent for all three crimes and modify CALCRIM No. 2652 for the count 2 charged violation of section 69 because there was no issue of whether there was excessive force used by the officers while Robinson was allegedly resisting an officer performing his lawful duty. Defense counsel agreed with such modifications based on the evidence.

The court subsequently instructed the jurors that:

"Every crime charged in this case requires proof of the union, or joint operation, of act and wrongful intent. In order to be guilty of the crimes of possession of a controlled substance, resisting an executive officer, and possession of drug paraphernalia, a person must not only commit the prohibited act, but must do so intentionally or on purpose. The act required is explained in the instructions for each crime. However, it is not required that he or she intends to break the law." (CALCRIM No. 250; italics added.)

The court then read the instructions for each charged crime, including the modified CALCRIM No. 2652 for count 2 which provided:

"The defendant is charged in count 2 with resisting an executive officer in the performance of that officer's duty. [] To prove that the defendant is guilty of this crime, the People must prove that: [] One, the defendant used force or violence to resist an executive officer; [] Two, when the defendant acted, the officer was performing his lawful duty; [] And three, when the defendant acted, he knew the executive officer was performing his duty. [] A police officer is an executive officer."

In closing argument, the prosecutor noted that count 2 was based upon Robinson resisting the lawful arrest by Carroll and Rice who were executive officers by his kicking and punching as he tried to get away. The prosecutor stressed that the intent to hurt someone was not required for count 2, only the use of force against a lawful arrest was necessary in this case. Defense counsel argued Robinson was not trying to resist the arrest by force or violence, but rather was only trying to flee. The jury subsequently returned a verdict finding Robinson guilty of violating section 69 as charged in count 2.

On appeal, Robinson contends his right to due process was violated by the trial court's failure to instruct the jury that resisting an executive officer in the performance of his or her duty required a specific intent. Relying on People v. Gutierrez (2002) 28 Cal.4th 1083, 1153-1154 (Gutierrez), he specifically argues that CALCRIM No. 2652 given in this case was deficient in that it did not further instruct the jury that in order to be guilty of violating section 69, a defendant has to have had the specific intent to resist the executive officer in the performance of his duty. He claims the instructional error cannot be deemed harmless because it cannot be said beyond a reasonable doubt that the error in failing to instruct on an element of the offense made no difference in reaching the verdict. Robinson's instructional error claim has no merit.

As the People correctly point out in the respondent's brief, section 69^[2]defines two ways in which the offense of resisting an executive officer under that statute can be committed: "The first is attempting by threats or violence to deter or prevent an officer from performing a duty imposed by law; the second is resisting by force or violence an officer in the performance of his or her duty." (In re Manuel G. (1997) 16 Cal.4th 805, 814.) The first way requires the specific intent to deter or prevent the officer from performing his duty. (People v. Hines (1997) 15 Cal.4th 997, 1060-1062.) The second way merely requires general criminal intent. (People v. Roberts (1982) 131 Cal.App.3d Supp. 1, 9.)

Here, although the information charged Robinson with violating section 69 in conjunctive language setting forth both ways in which that statute can be violated, the prosecutor proceeded only on the second type of violation which was supported by the evidence and gave closing argument accordingly. All parties had agreed with the instructions for the second theory of violating section 69 and the court instructed exclusively on that theory by reading CALCRIM Nos. 250 and 2652.^[3] Robinson's reliance on Gutierrez, supra, 28 Cal.4th 1083, is unfounded because that case only involved the first way of committing section 69 which requires specific intent, and this case does not. No instructional error is shown.

II

CRUEL AND UNUSUAL PUNISHMENT

Relying basically on In re Lynch (1972) 8 Cal.3d 410^[4]and People v.Dillon (1983) 34 Cal.3d 441 (Dillon),^[5]and to a lesser extent on the Eighth Amendment as applied to the states through the Fourteenth Amendment, Robinson claims his "life term predicated upon the simple possession of cocaine base and a concurrent life term for resisting an officer without any significant harm to the victim" is "grossly disproportionate and shocks the conscience," thereby constituting cruel and/or unusual punishment under the United States and California Constitutions.^[6] Although conceding that he is subject to the life terms based upon "four serious or violent priors" which were found true as strikes, Robinson does not challenge the general facial constitutionality of the three strikes statutory scheme, but rather asserts its application to him is unconstitutionally excessive and disproportionate to his culpability in this case.^[7]

Robinson did not raise this claim in the trial court. Although such claim is thus technically waived (see People v. Kelley (1997) 52 Cal.App.4th 568, 583), it is also totally without merit. Robinson simply fails to appreciate the punishment under scrutiny here is not only the result of his current offenses, but also the result of his recidivist history. From our independent review of the record in light of the applicable law, we conclude application of the Three Strikes law in this case is not cruel and/or unusual.

As to California's separate constitutional prohibition against cruel or unusual punishment, we note the power to define crimes and prescribe punishment is a legislative function and the courts may interfere in this process only if a statute or statutory scheme prescribes a penalty so severe in relation to the crime or crimes to which it applies as to violate the constitutional prohibition. (In re Lynch, supra, 8 Cal.3d at pp. 423-424.) Ultimately, the test whether a specific punishment is cruel or unusual is whether it is " 'out of all proportion to the offense' . . . so as to shock the conscience and offend fundamental notions of human dignity." (In re DeBeque (1989) 212 Cal.App.3d 241, 249, quoting Robinsonv.California (1962) 370 U.S. 660, 676 and citing In re Lynch, supra, 8 Cal.3d at p. 424.)

As we noted in In re DeBeque, the analysis developed in In re Lynch, supra, 8 Cal.3d 410 and Dillon, supra, 34 Cal.3d 441, merely provides guidelines for determining whether a given punishment is cruel or unusual and the importance of each criteria depends on the facts of the specific case. (In re DeBeque, supra, 212 Cal.App.3d at p. 249.) Although determinations whether a punishment is cruel or unusual may be made based on the first Lynch factor alone, i.e., the nature of the offense and/or offender (see, e.g., Dillon, supra, 34 Cal.3d at pp. 479, 482-488; Peoplev.Weddle (1991) 1 Cal.App.4th 1190, 1198-1200; Peoplev.Young (1992) 11 Cal.App.4th 1299, 1308-1311), the defendant has the burden of establishing his punishment is greater than that imposed for more serious offenses in California and that similar offenses in other states do not carry punishments as severe. (See In re DeBeque, supra, 212 Cal.App.3d at pp. 254-255.) Successful challenges to proportionality are an "exquisite rarity." (Weddle, supra, 1 Cal.App.4th at p. 1196.)

Here, Robinson has not met that burden. As noted above, Robinson's punishment is controlled in the first instance by his committing his current offenses while having previously been convicted of four serious or violent felonies: burglary, two forcible sex offenses and attempted murder. That the Legislature saw it necessary to enact statutes and sentencing schemes to impose harsher punishment for recidivist offenders like Robinson does not shock our conscience. It was his prior convictions coupled with his present conduct that qualified him for punishment under the Three Strikes law. We believe mandatory imposition of the legislatively required term was proper absent a showing Robinson fell outside the spirit of the Three Strikes law, which has not been shown.

Moreover, even if we review the matter by analyzing the factors under the first prong of In re Lynch, supra, 8 Cal.3d 410 (nature of the offense and/or offender), as refined in Dillon, supra, 34 Cal.3d 441, we reach the same conclusion that the total 26-year-to-life term imposed in this case does not constitute cruel or unusual punishment. Unlike the youthful 17-year-old first-time offender in Dillon, Robinson was 46 years old at the time he committed the current offenses, which as the trial court recognized, and Robinson concedes, involved violence with Robinson punching and kicking several police officers attempting to handcuff him after he had been lawfully arrested for possession of drug paraphernalia. Additionally, Robinson had served a prior prison term for four prior serious or violent prior convictions and had been in and out of prison on parole violations before his current conduct.

Although Robinson attempts to show that his life term is disproportionate under the second Lynch prong, such comparisons fail. Because the Legislature may constitutionally enact statutes imposing more severe punishment for habitual criminals (see In re Rosencrantz (1928) 205 Cal. 534, 535-536, 539-540; Peoplev.Weaver (1984) 161 Cal.App.3d 119, 125-126), it is illogical to compare Robinson's punishment for his "offenses," which include his recidivist behavior, to the punishment of others who have committed the same underlying or more serious crimes such as first degree murder, but are not qualified repeat felons. Such other offenders would likely receive similar or longer sentences under the Three Strikes law if such were applicable to them because of recidivist conduct. Robinson presented no evidence regarding sentences imposed for similar offenses or sentencing schemes in other jurisdictions.

Moreover, in light of the holdings in Harmelin v.Michigan (1991) 501 U.S. 957, Rummell v.Estelle (1980) 445 U.S. 263, 284-285, and the more recent United States Supreme Court companion cases of Ewing v. California (2003) 538 U.S. 11 and Lockyer v. Andrade (2003) 538 U.S. 63, which held lengthy indeterminate life sentences imposed under California's Three Strikes law for recidivist criminals did not violate the Eighth Amendment, any reliance in this case upon the federal prohibition of cruel and unusual punishment would likewise be unsuccessful. As already noted, Robinson suffered four prior serious or violent felony convictions before the offenses in this case. He had served a prior prison term and had been returned to prison several times for parole violations before committing the current crimes.

Given all the relevant considerations, the fact Robinson will serve 26 years to life for his current case simply does not shock the conscience or offend concepts of human dignity. We thus conclude Robinson has failed to show his sentence is so disproportionate to his "crimes," which include his recidivist behavior, and that the lengthy term imposed for this case does not violate the constitutional prohibitions against cruel and/or unusual punishment.

DISPOSITION

The judgment is affirmed.

HUFFMAN, J.

WE CONCUR:

McCONNELL, P. J.

AARON, J.

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

^[2] Section 69 provides: "Every person who attempts, by means of any threat or violence, to deter or prevent an executive officer from performing any duty imposed upon such officer by law, or who knowingly resists, by the use of force or violence, such officer, in the performance of his duty, is punishable by a fine not exceeding ten thousand dollars ($10,000), or by imprisonment in the state prison, or in a county jail not exceeding one year, or by both such fine and imprisonment."

^[3] CALCRIM No. 2651, the instruction dealing with the first theory for a violation of section 69 which requires specific intent, was not given in this case.

^[4]In re Lynch applied a three-pronged approach to determine whether a particular punishment is disproportionate to the offense for which it is imposed. (In re Lynch, supra, 8 Cal.3d at pp. 429-438.) Under the first prong, the California Supreme Court examined 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.) Second, the court compared the challenged punishment with that prescribed for more serious crimes in the same jurisdiction. (Id. at p. 426.) Finally, the challenged punishment was compared with punishments for the same offense in other jurisdictions. (Id. at p. 427.) After its analysis, the court there held an indeterminate sentence of one year to life for recidivists who commit indecent exposure under section 314 was void as cruel or unusual punishment. (In re Lynch, supra, 8 Cal.3d at p. 439.)

^[5] In Dillon the California Supreme Court reaffirmed In re Lynch and concluded that under the facts of that case, the life imprisonment of a 17-year-old defendant for first degree murder based on a felony-murder theory violated California's constitutional prohibition against cruel or unusual punishment. (Dillon, supra, 34 Cal.3d at pp. 450-452, 477, 482-483, 489.) The court in so deciding refined the first Lynch prong, stating trial and reviewing courts should examine "not only the offense in the abstract[,]" but also "'the facts of the crime in question.' [Citation.]" (Id. at p. 479.) Courts should consider "the totality of the circumstances" including motive, the way the crime was committed, the extent of the defendant's involvement, and the consequences of the defendant's acts. (Ibid.) With respect to the nature of the offender, a court should ask 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.)

^[6] The prohibition against cruel or unusual punishment is contained in California Constitution, article I, section 17.

^[7] Robinson does not challenge the trial court's denial of his motion to strike his priors below.