P. v. Atherton

Filed 10/26/06 P. v. Atherton CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

THIRD APPELLATE DISTRICT

(Placer)

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A jury convicted defendant William May Atherton of failing to register as a sex offender. (Pen. Code, § 290, subd. (g)(2).)^[1] In a trial by court, the court found defendant had two prior strike convictions (§§ 667, subds. (b)-(i), 1170.12) and had served three prior prison terms (§ 667.5, subd. (b)).^[2] Defendant was sentenced to state prison for 28 years to life.

On appeal, defendant contends (1) resentencing is required because the trial court abused its discretion in denying his motion to strike one or both of his prior strikes, (2) his sentence violates the ban on cruel and unusual punishment, and (3) if we conclude his second contention was forfeited, then he received ineffective assistance of counsel. We shall affirm the judgment.

FACTS

Defendant stipulated that he had been convicted of an offense for which was imposed a lifetime requirement to register as a sex offender; that at the time of the conviction he was advised of the lifetime requirement to register; and that on June 16, 1997, he was convicted of failure to so register.

Defendant registered 12 times at 11 different addresses, and each time he was told of the registration requirements, which included informing the registering agency with which he last registered of moving into a new jurisdiction, and informing the registering agency in the new jurisdiction of his address.

On May 22, 2001, defendant registered with the San Mateo County Sheriff’s Office, listing his address as 3036 Glendale Avenue in Redwood City. On April 9, 2002, defendant informed the Department of Motor Vehicles that he had moved to 134 Main Street in Roseville, but defendant never registered with the Roseville Police Department. On May 27, 2002, San Mateo County Sheriff’s deputies went to the Glendale Avenue address but were told defendant had moved to the Sacramento area. On June 7, 2002, an investigator with the Roseville Police Department went to the Main Street address and found defendant listed on the roster of people who lived at that address.

Defendant neither testified nor presented any evidence.

DISCUSSION

I

At his sentencing hearing defendant moved, pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero), to have the court strike one or both of his prior strike convictions. The court denied the motion and sentenced him to state prison for 28 years to life.

Defendant contends the trial court abused its discretion in denying the Romero motion when it refused to consider mitigating factors that took him “outside the spirit of the three strikes law.” We conclude there was no abuse of discretion.

“[I]n ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law, . . . or in reviewing such a ruling, the court . . . must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.” (People v. Williams (1998) 17 Cal.4th 148, 161.)

An appellate court reviews a trial court’s denial of a motion to strike under the abuse of discretion standard; we reverse only if the trial court’s “decision is so irrational or arbitrary that no reasonable person could agree with it.” (People v. Carmony (2004) 33 Cal.4th 367, 375, 377.)

Defendant and the People essentially submitted the question of whether the court should strike one or more of defendant’s strikes on their written motions.

According to defendant’s written motion, to which he attached several letters, he moved to Roseville in anticipation of promised employment and registered his new address with the Department of Motor Vehicles, but he did not register with the police department. When the job failed to materialize, defendant left the state, eventually ending up in Kentucky where he lived for almost a year, first for three months in the home of James Martin and Barbara Hancock and then in a separate residence.

Letters from Martin and Hancock stated that defendant informed them of his criminal past, including his sex offense convictions; that he obtained a job and was hard working and well respected; and that he was active in a “12-step” alcohol recovery program and spoke of becoming a counselor. A letter from friend Sonny Shearer detailed defendant’s involvement in Alcoholics Anonymous and observed that he had stayed sober and consistently helped others.

Two letters from persons associated with Pacific Coast Services in San Mateo County, where defendant had worked on a water route prior to his leaving the state, described him as hard working, never receiving a customer complaint, and being the subject of several complimentary customer calls.

Citing to the probation officer’s report, defendant claimed that about 17 years ago, when he was 25 years old, he had been diagnosed with HIV and was now expected to live only three to five more years with an increasing need for medical care.

Defendant’s 1997 conviction for failure to register (§ 290) was based upon his move from East Palo Alto to Redwood City. Although he registered his new address with the Redwood City Police Department, he failed to inform the East Palo Alto Police Department of the move.

The People’s opposition to defendant’s Romero motion noted that defendant’s prior strike convictions were for forcible rape (1985) and attempted murder (1989). For these offenses he was sentenced to state prison for six and 13 years, respectively. Additionally, the latter conviction was based upon a negotiated plea wherein a forcible rape charge was dismissed.

As to defendant’s 1997 conviction for failure to register, the San Mateo County Probation Officer’s report stated that although defendant had pled no contest to the charge, the case also involved defendant’s having become “obsessively involved with two young, adolescent females.”

Defendant’s record also shows that from the time he was convicted of forcible rape (March 1985) until he was discharged from parole in July 2001, a period of over 16 years, he was either incarcerated or on parole and incurred parole violations. Defendant committed the instant offense only eight months after being discharged from parole.

Defendant argues the court abused its discretion in refusing to strike at least one of his prior strike convictions by failing to find that his California employment registration history coupled with his efforts while in Kentucky to rehabilitate himself of his substance abuse problems, his remaining free of any allegations of illegal conduct, and his disclosure of his prior sex offenses to others while in Kentucky are factors demonstrating that he should now be “‘placed outside the spirit of the Three Strikes Law.’” We are not persuaded by the argument.

While the factors cited by defendant certainly are favorable, they fall far short of removing him from the “spirit” of the three strikes law. Defendant’s prior strikes were for forcible rape and attempted murder, with the latter conviction arising out of a second charge of forcible rape. While on parole, defendant became involved with two young females, inappropriately touching one and following another to her place of employment. Defendant also was told to move from his residence in East Palo Alto by the man with whom defendant was living because he had allegedly exposed himself to the man’s girlfriend. From the time of his rape conviction in 1985 until his discharge from parole in 2001, defendant was either incarcerated or on parole and had incurred parole violations. Within eight months of being discharged from parole, defendant committed the instant violation, left the state without notice, and kept his whereabouts unknown to any law enforcement authorities until his arrest in June 2003.

Consequently, notwithstanding the recent favorable factors cited by defendant, his overall record shows that he must be considered a danger to society and cannot be counted on to keep law enforcement aware of his location. There was no abuse of discretion by the court in refusing to strike either of defendant’s prior strike convictions.

II

Relying on the analyses in Solem v. Helm (1983) 463 U.S. 277 [77 L.Ed.2d 637] (Solem) and People v. Carmony (2005) 127 Cal.App.4th 1066 (Carmony), defendant contends his sentence is cruel and/or unusual under both the federal and California Constitutions because it is grossly disproportionate to the offense for which it was imposed. We reject the contention, finding Solem and Carmony factually distinguishable.^[3]

Solem found that the Eighth Amendment’s ban on cruel and unusual punishment prohibited a recidivist sentence of life in prison without the possibility of parole for a seventh nonviolent felony because the current felony -- uttering a “no account” check for $100 -- was “‘one of the most passive felonies a person could commit.’” (Solem, supra, 463 U.S. at p. 296.)

In Carmony, as required by section 290, the defendant registered his address with the police department but a month later failed to update that registration with the same information within five working days of his birthday, as also required by section 290. (Carmony, supra, 127 Cal.App.4th at p. 1071.) The defendant pled guilty to failing to register, and admitted three prior strike convictions and the service of a prior prison term. (Id. at pp. 1071-1072.) Pursuant to the three strikes law, the defendant received a sentence of 25 years to life. (Id. at p. 1072.) This court reversed the sentence, concluding that failing to reregister the same information a month after having initially provided it was an offense that “served no stated or rational purpose of the registration law and posed no danger or harm to anyone.” (Id. at p. 1073.) Consequently, the sentence was disproportionate to the offense under both the federal and California Constitutions’ prohibition against cruel and/or unusual punishment. (Ibid.)

In determining the proportionality issue, both Solem and Carmony relied upon the three tests set forth in In re Lynch (1972) 8 Cal.3d 410 (Lynch), namely: (1) an examination of the nature of the offense and/or the offender, with particular regard to the degree of danger both present to society; (2) a comparison of the punishment with the punishments prescribed for more serious offenses in the same jurisdiction; and (3) a comparison of the punishment with those prescribed for the same crime in other jurisdictions. (Solem, supra, 463 U.S. at p. 292; Carmony, supra, 127 Cal.App.4th at pp. 1077-1089.)

Applying the Lynch tests to defendant’s circumstances, he fails all three.

Nature of the Offense

Defendant minimizes the severity of his offense, referring to it as “a nonviolent crime presenting a low degree of danger to society” and a “minor offense.” Such minimization shows a misunderstanding of the offense.

“‘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.]” (Wright v. Superior Court (1997) 15 Cal.4th 521, 527.) When the perpetrator of a sexual offense is unknown, and there appears to be no shortage of such incidents, section 290 registrants are reasonably considered suspects because of their recidivist tendencies to commit sexual crimes. It is therefore imperative that law enforcement be able immediately to locate such persons for the purpose of either arresting or eliminating them as possible suspects. Law enforcement’s time and effort should not be wasted on searching for sexual offenders who have failed to register. Rather, it should be spent in attempting to apprehend perpetrators before they commit future crimes. Consequently, a sexual offender’s failure to register his or her address, as required by section 290, is a serious, rather than a minor, offense.

Nor are defendant’s current circumstances remotely similar to the current offenses of the defendants in Solem and Carmony. Solem’s current offense was for uttering a check for $100, an offense the court found to be “‘one of the most passive felonies a person could commit.’” (Solem, supra, 463 U.S. at p. 296.) Solem’s prior six felony convictions “were all relatively minor,” “[a]ll were nonviolent,” and “none was a crime against a person.” (Id. at pp. 296-297.) Solem’s sentence was life without possibility of parole. (Id. at p. 279.)

By contrast, for reasons explained above, defendant’s current failure to register is not a trivial offense -- it is a serious breach of his duty to register. Defendant’s sentence was 28 years to life, not life with no possibility of parole. And defendant’s prior convictions are not nonviolent. They involved degrading and terrifying sexual assaults on two women. Obviously, Solem is factually distinguishable.

Carmony‘s analysis turned on our conclusion that Carmony’s failure to provide police with the same information he had provided them a month previously was a trivial offense because Carmony’s whereabouts were known to law enforcement at all times. (Carmony, supra, 127 Cal.App.4th at pp. 1072-1073.) Clearly, this was not the case with defendant, whose whereabouts were unknown to law enforcement for over a year and likely never would have been known if defendant had not been arrested.

Nature of the Offender

Defendant had prior convictions for forcible rape in 1985 and attempted murder in 1989. As to the rape, defendant introduced himself to a lone woman, engaged her in small talk, and, “when they were secluded,” grabbed her by the throat, choked and slapped her, removed her clothing, orally copulated her, and penetrated her vagina with his fingers and penis. He was sentenced to prison for six years.

While on parole for the foregoing offense, defendant was found in violation thereof and returned to prison to finish his term.

The attempted murder occurred while defendant was on parole. He met a woman at a laundromat, engaged her in conversation, and invited her to his hotel room. After a while defendant grabbed her, “slammed” her into a wall, forced her to the floor, and choked and hit her until she began to lose consciousness. He forced her onto the bed, ripped off her clothing, orally copulated her, inserted his “fingers/hand” and penis into her vagina. In exchange for the dismissal of five charged counts of sexual offenses, defendant pled no contest to attempted murder and admitted infliction of great bodily injury (§ 12022.7) and service of a prior prison term (§ 667.5, subd. (b)). He received a 13-year prison term.

In 1997 defendant was convicted of failing to register pursuant to section 290 when he failed to inform East Palo Alto authorities of his move to Redwood City. He received a three-year sentence. He committed the instant offense only eight months after being discharged from parole. And there is no indication that, but for his arrest in June 2003, defendant would ever have told law enforcement of his location.

Against the foregoing record, defendant points out that while on parole he was employed and performed well at his job. While in Kentucky he committed no criminal offense, obtained employment, addressed his substance abuse problems, and assisted others in addressing theirs.

Defendant’s record speaks for itself. He has shown himself to be a sexual predator and a serious danger to women. His residence needs to be known to law enforcement at all times, but he cannot be trusted to so inform them. His service of three separate prison terms still did not deter him from knowingly committing the present offense. Consequently, given defendant’s entire record, it cannot reasonably be said that his sentence is constitutionally disproportionate to the offense and the offender.

Intrajurisdictional Comparison

Defendant argues his sentence is constitutionally disproportionate because a person who commits first degree murder with a deadly weapon would receive a sentence of 26 years to life; a third-strike defendant whose current felony is a failure to register would receive the same life term as a defendant with the identical strike priors and a current felony conviction for rape, robbery, or arson; and a second degree murderer would receive a sentence of 15 years to life.

The argument fails. The sentence of 26 years to life for first degree murder with a deadly weapon is not a recidivist sentence. That same murderer with defendant’s prior strikes would receive an enhanced sentence of 36 years to life because his prior strikes and current felony are serious felonies. (See §§ 667, subd. (a)(1), 1192.7, subd. (c)(3), (39).) Similarly, a defendant whose current felony is rape, robbery, arson or second degree murder, all of which are serious felonies, and who has the same strikes as defendant would receive an enhanced sentence of 35 years to life. (§§ 667, subd. (a)(1), 1192.7, subd. (c)(1), (3), (14), (19), (39).) Thus, defendant’s sentence is not as severe as those posited.

Interjurisdictional Comparison

In Lynch, supra, 8 Cal.3d at page 427, the court stated, “[I]f the challenged penalty is found to exceed the punishments decreed for the offense in a significant number of [other] jurisdictions, the disparity is a further measure of its excessiveness.” Defendant notes that “this Court has also recognized that no other state sentences sex offenders who fail to register as harshly as California.” From the foregoing propositions, defendant concludes his sentence is constitutionally excessive and therefore cruel or unusual. Accepting that an individual in another jurisdiction with defendant’s present offense and his recidivist background would not receive as severe a sentence as that imposed upon defendant, such disparity alone does not establish that defendant’s punishment is cruel or unusual; instead, such disparity may “provide an additional ground for suspecting the constitutionality of the challenged penalty.” (People v. Wingo (1975) 14 Cal.3d 169, 179.)

Here, the disparity is not “an additional ground” for suspecting the constitutionality of defendant’s sentence -- it is the only ground. Consequently, defendant is left with the argument that his recidivist sentence is unconstitutional because it is the most extreme in the nation. This argument has been rejected.

“That California’s punishment scheme is among the most extreme does not compel the conclusion that it is unconstitutionally cruel or unusual. This state constitutional consideration does not require California to march in lockstep with other states in fashioning a penal code. It does not require ‘conforming our Penal Code to the “majority rule” or the least common denominator of penalties nationwide.’ [Citation.] Otherwise, California could never take the toughest stance against repeat offenders or any other type of criminal conduct.” (People v. Martinez (1999) 71 Cal.App.4th 1502, 1516.)

Thus, under each of the three Lynch criteria, defendant has failed to show that his sentence is cruel or unusual under the California Constitution. DISPOSITION

The judgment is affirmed.

RAYE , Acting P.J.

We concur:

MORRISON , J.

BUTZ , J.

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

^[2] The prior convictions were for a 1989 attempted murder and a 1985 forcible rape.

^[3] The People urge us to find the issue forfeited because defendant failed to raise it in the trial court. Since we are able to resolve the issue on the facts developed below, we exercise our discretion to review the issue. (See People v. Meeks (2004) 123 Cal.App.4th 695, 706.) Our review of the issue obviates the need to address defendant’s ineffective assistance of counsel argument.