P. v. Hobson

Filed 10/27/06 P. v. Hobson CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Defendant Timothy Hobson appeals from the judgment entered after his conviction of nine counts of molesting a child. He asserts that the 225-years-to-life sentence imposed is cruel and unusual punishment in violation of the federal and state constitutions and that the “Three Strikes” law does not authorize consecutive terms of 25 years to life on each count. We disagree with his claims of error and affirm the judgment.

BACKGROUND

On June 14, 2005, an amended information was filed charging defendant with nine counts of committing a lewd and lascivious act on a child under the age of 14, in violation of Penal Code section 288, subdivision (a).[1] The information further alleged that defendant had suffered 10 prior strike convictions within the meaning of sections 667, subdivisions (b) through (i) and 1170.12.[2]

On June 16, 2005, after an eight-day trial, a jury convicted defendant on all nine counts. In a bifurcated proceeding, the trial court found the 10 prior strike allegations to be true.

Defendant filed a motion to dismiss his prior strike convictions on the basis of constitutional prohibitions against cruel and unusual punishment. On October 24, 2005, the trial court denied defendant’s motion to dismiss the prior convictions and sentenced defendant to state prison for the total indeterminate term of 225 years to life.[3] Defendant timely appeals.

The facts of the underlying offenses are not in dispute and will be described only briefly. Beginning in January or February 2004, 13-year-old Stephen began going to defendant’s motor home, which was parked behind a church, to help move boxes and clean the motor home. Defendant and Stephen’s mother worked together, and all attended the same church. Defendant offered Stephen a massage and had him remove his shirt. Nothing sexual occurred that day, but Stephen went back a week later to help defendant again, and during another massage, defendant touched Stephen’s penis and buttocks. Over the course of the next several months, this relationship continued. Defendant masturbated himself and Stephen, orally copulated the boy and directed him to do the same, and had anal intercourse at least twice.

In May 2004, Stephen told his pastor’s wife that defendant had molested him at least seven times in his motor home. This was reported to the police, and officers interviewed Stephen. He told them that the defendant put his mouth on his penis, forced him to put his mouth on defendant’s penis, and put his penis in the boy’s anus. The victim reported witnessing defendant ejaculate approximately 10 times. Defendant orally copulated the victim approximately 10 times beginning in January or February 2004 when he was 13 years old.

The police had Stephen initiate a recorded telephone call to defendant who had gone to Tennessee. In the telephone call, defendant admitted having sexual contact with the victim. When the police contacted defendant in Tennessee, he admitted a sexual relationship with the boy and said he moved away because he feared the boy was falling in love with him. Defendant further admitted that over his life, he had molested more than 100 boys, preferring those under the age of 17. When defendant was arrested on August 11, 2004, in Tennessee, he was in possession of four negatives of sexually explicit photographs.

DISCUSSION

I. Cruel and Unusual Punishment

Defendant first asserts that his “Three Strike” sentence violates the federal and state constitutional prohibitions against cruel and unusual punishment. He maintains that the sentence imposed is draconian in light of the surrounding facts and circumstances.

A. Background

Prior to sentencing, defendant filed a motion, requesting that his 10 prior strike convictions be dismissed on the grounds that the proposed 225-years-to-life sentence would be cruel and unusual punishment. At argument, defense counsel noted that defendant was then 56 years old and his prior convictions were 30 years old. The prosecutor pointed out that the prior convictions involved sexual conduct with minors similar to the behavior underlying defendant’s present convictions. The trial court denied the motion to dismiss, finding that the prior convictions involved the same predatory conduct against children.

B. Analysis

Both the federal and state constitutions proscribe cruel and unusual punishment by prohibiting punishment that is grossly disproportionate to the severity of the offense. (U.S. Const., 8th Amend.; Cal. Const., art. I, § 17; Harmelin v. Michigan (1991) 501 U.S. 957, 1001 (Harmelin); People v. Marshall (1990) 50 Cal.3d 907, 938.) Federal and state courts generally have considered three objective criteria in assessing whether a particular sentence offends the constitutional prohibitions against cruel and unusual punishment: “[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.” (Solem v. Helm (1983) 463 U.S. 277, 292.) However, in Harmelin, in multiple opinions, the United States Supreme Court reevaluated its prior analysis concerning disproportionality of punishment under the Eighth Amendment and shifted the focus to “gross disproportionality.” (Harmelin, supra, 501 U.S. at p. 1005 (conc. opn. of Kennedy, J.).) The court determined that comparison of the sentence with other crimes and with other jurisdictions was necessary only in rare cases where gross disproportionality was found.[4] (Ibid.) (In Harmelin, the defendant received a life sentence for possession of over one and one-half pounds of cocaine. (Id. at p. 1002.).)

Then, in 2003, the United States Supreme Court decided whether the Eighth Amendment prohibits California from sentencing a repeat felon to a prison term of 25 years to life under the state’s Three Strikes law. In Ewing v. California (2003) 538 U.S. 11 (Ewing), the defendant was convicted of grand theft after stealing three golf clubs worth $399 each. Under the Three Strikes law, the trial court imposed a life term. The record revealed that the defendant’s criminal history spanned 1984 to 1999 and included misdemeanor and felony convictions for petty theft, auto theft, battery, burglary, robbery, possession of drugs, trespass, and unlawful possession of a firearm. The high court stated: “The Eighth Amendment, which forbids cruel and unusual punishments, contains a ‘narrow proportionality principle’ that ‘applies to noncapital sentences.’ [Citations.]” (Ewing, supra, 538 U.S. at p. 20, citing Harmelin, supra, 501 U.S. at pp. 996-997.) The Ewing court went on to explain how in Harmelin, in a series of concurring opinions, the court changed its focus: “ ‘The Eighth Amendment does not require strict proportionality between crime and sentence. Rather, it forbids only extreme sentences that are “grossly disproportionate” to the crime.’ [Citation.] Justice Kennedy’s concurrence also stated that Solem ‘did not mandate’ comparative analysis ‘within and between jurisdictions.’ [Citation.] The proportionality principles in our cases distilled in Justice Kennedy’s concurrence guide our application of the Eighth Amendment in the new context that we are called upon to consider.” (Ewing, supra, at pp. 23-24.) The Supreme Court explained that in enacting the Three Strikes law, the California legislature made a judgment “that protecting the public safety requires incapacitating criminals who have already been convicted of at least one serious or violent crime. Nothing in the Eighth Amendment prohibits California from making that choice.” (Id. at p. 25.) In addressing the gravity of the offense compared to the harshness of the penalty, the Supreme Court emphasized that the gravity of the defendant’s offense included not only his current felony, but also his history of felony recidivism. The Supreme Court held that “Ewing’s sentence of 25 years to life in prison, imposed for the offense of felony grand theft under the [T]hree [S]trikes law, is not grossly disproportionate and therefore does not violate the Eighth Amendment’s prohibition on cruel and unusual punishments.” (Id. at pp. 30-31.)

Defendant here argues that while his crimes may have been serious and involved reprehensible conduct, the draconian sentence imposed is disproportionate to the harm he actually caused to the victim, in that there was no evidence of force or fear and the victim returned willingly to defendant’s home each time. However, the severity of defendant’s punishment is related to his status as a recidivist. Defendant had ten prior convictions for the same extraordinarily serious and reprehensible conduct.[5] He made a statement to police officers that over the course of his life he had molested over 100 boys.

We cannot view defendant’s punishment as a recidivist under the Three Strikes law as grossly disproportionate to his crime. We thus conclude that his sentence does not offend the Eighth Amendment and we need not consider further comparisons. (Ewing, supra, 538 U.S. at pp. 30-31.) This is not the rare case that requires such analysis. (Id. at p. 30; see also People v. Weddle, supra, 1 Cal.App.4th 1190.)

In analyzing the separate prohibition against cruel or unusual punishments provided in the California Constitution,[6] we use similar criteria. The California Supreme Court has said that a sentence will violate the state constitution if “it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.” (In re Lynch (1972) 8 Cal.3d 410, 424, fn. omitted; People v. Dillon (1983) 34 Cal.3d 441, 478.) “[T]he court in Lynch . . . considered three techniques for evaluating a claim of cruel or unusual punishment. First, the court examines ‘the nature of the offense and/or the offender, with particular regard to the degree of danger both present to society.’ [Citation.] Relevant factors to consider are the facts of the current crime, the minor nature of the offense, the absence of aggravating circumstances, whether it is nonviolent, and whether there are rational gradations of culpability that can be made on the basis of the injury to the victim or to society in general. [Citation.]” (People v. Carmony, supra, 127 Cal.App.4th at p. 1085.) The second technique involves comparing “the challenged penalty with the punishments prescribed in the same jurisdiction for different offenses which, by the same test, must be deemed more serious.” (In re Lynch, supra, 8 Cal.3d at p. 426.) The third technique compares “the challenged penalty with the punishments prescribed for the same offense in other jurisdictions . . . .” (Id. at p. 427.)

Under the California constitutional analysis, a defendant’s criminal history is appropriately considered as part of the first factor, i.e, the nature of the offense and the offender. (People v. Cooper (1996) 43 Cal.App.4th 815, 825-826.) Here, as noted above, defendant’s criminal history included ten prior strike convictions for sexual crimes against children. His current convictions are nine separate counts of lewd and lascivious conduct against a child under the age of 14. Under the Three Strikes law, convicted felons are subject to more severe punishment precisely because of their recidivism. This is a legitimate penological purpose, and the United States Supreme Court has approved the basic 25-years-to-life sentence of the Three Strikes law. (See Ewing, supra, 538 U.S. at p. 28)

Defendant points to his troubled life, noting a difficult childhood, physical impairments, mental illness and addiction. He emphasizes that no fear or force was used in committing the offenses nor were any injuries reported. He also refers to the letters submitted in support of his character, which describe his charitable activities. However, defendant’s life problems do not provide a legal mitigation for the punishment prescribed by law. (See People v. Martinez (1999) 71 Cal.App.4th 1502, 1511.) He has demonstrated that he is unable to conform his behavior to the requirements of the law, and “[i]t is apparent from this record that incarceration has not deterred him from committing more crimes.” (People v. Cline (1998) 60 Cal.App.4th 1327, 1338 [life term for grand theft and residential burglary with prior residential burglary convictions].)

The second Lynch factor is a comparison of defendant’s punishment with punishments in this state for more serious crimes. Defendant points out the 25-years-to-life sentence imposed for premeditated murder and the 15-years-to-life sentence for a second degree murder (§ 190, subd. (a)), as “a small fraction of the sentence imposed upon [him] for his present offenses.” He also points out the maximum determinate sentence of only 16 years to which a resident child molester is exposed under section 288.5. Defendant claims he is no greater danger or menace to society than a residential child molester.

“However, as the court pointed out in People v. Ayon (1996) 46 Cal.App.4th 385, 400, this step is inapposite to three strikes sentencing because it is a defendant’s ‘recidivism in combination with his current crimes that places him under the [T]hree [S]trikes law. Because the Legislature may constitutionally enact statutes imposing more severe punishment for habitual criminals, it is illogical to compare [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.’ (Ibid., fn. omitted.)” (People v. Cline, supra, 60 Cal.App.4th at p. 1338.)

The Cline court briefly discussed the third Lynch factor, interstate comparison. “[A] comparison of California’s punishment for recidivists with punishment for recidivists in other states shows that many of the statutory schemes provide for life imprisonment for repeat offenders, and several states provide for life imprisonment without possibility of parole. California’s scheme is part of a nationwide pattern of statutes calling for severe punishments for recidivist offenders. (See, e.g., People v. Ayon, supra, 46 Cal.App.4th at p. 400.) We conclude that defendant’s punishment was not ‘ “out of all proportion to the offense . . .” [citation] so as to shock the conscience and offend fundamental notions of human dignity.’ (In re DeBeque (1989) 212 Cal.App.3d 241, 249.)” (People v. Cline, supra, 60 Cal.App.4th at p. 1338.)

As we earlier concluded in People v. Martinez, supra, 71 Cal.App.4th at p. 1516: “That California’s punishment scheme is among the most extreme does not compel the conclusion that it is unconstitutionally cruel or unusual. . . . ‘. . . Whether a particular punishment is disproportionate to the offense is a question of degree. The choice of fitting and proper penalty is not an exact science but a legislative skill involving an appraisal of the evils to be corrected, the weighing of practical alternatives, consideration of relevant policy factors, and responsiveness to the public will. . . . Thus, the judiciary should not interfere in the process unless a statute prescribes a penalty “ ‘out of all proportion to the offense.’ “ ‘ [Citations.]” (See People v. Cooper, supra, 43 Cal.App.4th at p. 827, quoting In re Lynch, supra, 8 Cal.3d at pp. 423-424 [defendant convicted of being an ex-felon in possession of a firearm when he shoplifted a can of cake frosting. Two prior convictions for robbery brought him within the Three Strikes law and he was properly sentenced to 25 years to life]; People v. Ayon, supra, 46 Cal.4th at p. 389 [225-years-to-life sentence for nine consecutive felonies with four prior strikes];

People v. Poslof (2005) 126 Cal.App.4th 92 [three strike life term for knowingly failing to register as sex offender not unconstitutional].)

We conclude that defendant’s punishment is not so disproportionate to his crimes that it shocks the conscience and offends fundamental notions of human dignity. (In re Lynch, supra, 8 Cal.3d at p. 425.)

II. Consecutive Terms of 25 Years to Life

Defendant also contends that the Three Strikes law does not authorize consecutive terms of 25 years to life for each count. He claims his 225-years-to-life sentence thus violates his right to due process.[7]

Defendant’s claim is based on his reading of section 1170.12, subdivisions (c)(2)(A) and (c)(2)(B),[8] which prescribe how a sentence is to be calculated if a defendant has two or more prior felony convictions. He acknowledges, however, that several California appellate courts have disagreed with his argument: see People v. Cartwright (1995) 39 Cal.App.4th 1123, People v. Ingram (1995) 40 Cal.App.4th 1397, disapproved on another point in People v. Dotson (1997) 16 Cal.4th 547, 559, 560, footnote 8, and People v. Thomas (1997) 56 Cal.App.4th 396.

In essence, defendant’s argument is that section 1170.12, subdivisions (c)(2)(A) and (c)(2)(B) prohibit consecutive terms of 25 years to life, and that the cases determining otherwise are wrongly decided. Although we agree with the courts that have decided the issue against defendant’s position, we review his arguments briefly.

The relevant subdivision provides: “(c)(2)(A) If a defendant has two or more prior felony convictions, as defined in paragraph (1) of subdivision (b), that have been pled and proved, the term for the current felony conviction shall be an indeterminate term of life imprisonment with a minimum term of the indeterminate sentence calculated as the greater of (i) three times the term otherwise provided as punishment for each current felony conviction subsequent to the two or more prior felony convictions, or (ii) twenty-five years or (iii) the term determined by the court pursuant to Section 1170 for the underlying conviction, including any enhancement applicable under Chapter 4.5 (commencing with Section 1170) of Title 7 of Part 2, or any period prescribed by Section 190 or 3046. (B) The indeterminate term described in subparagraph (A) of paragraph (2) of this subdivision shall be served consecutive to any other term of imprisonment for which a consecutive term may be imposed by law. Any other term imposed subsequent to any indeterminate term described in subparagraph (A) of paragraph (2) of this subdivision shall not be merged therein but shall commence at the time the person would otherwise have been released from prison.”[9] (§ 1170.12.)

Defendant seizes on the language in option (i): three times the term “otherwise provided as punishment for each current felony conviction subsequent to the two or more prior felony convictions,” and argues that it is a reference to the sentencing scheme found in section 1170.1, subdivision (a), which provides for a full lower, middle or upper principal term for one offense and a subordinate term of one-third the middle term for each additional offense. Thus, he explains, the third strike sentencing scheme contemplates tripling the full term for one offense and then tripling the one-third midterm for each of the other offenses. If this sentence is longer than the 25 years provided in option (ii), then this first option should apply.

But the language of the subdivision specifically states for “each current felony conviction,” and courts have interpreted this to mean that each current felony conviction is sentenced separately and consecutively. (See People v. Thomas, supra, 56 Cal.App.4th at p. 400; People v. Ayon, supra, 46 Cal.App.4th 385, 393.) As the Ingram court stated: “[D]efendant’s incorporation of section 1170.1 into option i is untenable. The ‘term otherwise provided as punishment’ clearly means the term of punishment for the current felony offense, i.e., the determinate term whether that is the lower, middle or upper term as provided by law.” (People v. Ingram, supra, 40 Cal.App.4th at p. 1407; accord People v. Thomas, supra, 56 Cal.App.4th at p. 402.)

Defendant’s further claim, that subdivisions (a)(6) and (a)(7) of section 1170.12[10] support his position, was rejected in Ingram and Thomas. The court in Ingram noted the legislative history of the Three Strikes law is in opposition to defendant’s assertion: “According to the analysis of Assembly Bill No. 971 prepared by the Senate Committee on the Judiciary, ‘This bill would provide that if the person has two previous violent or serious felony convictions, he or she must be sentenced to a term of 25 years to life in prison for each new felony conviction, which must be served consecutively.’ (Sen. Com. on Judiciary Analysis of Assem. Bill No. 971 (1993-1994 Reg. Sess.) as amended Jan. 26, 1994.)” (People v. Ingram, supra, 40 Cal.App.4th at p. 1408.) Thus, the Ingram court concluded “It would be contrary to the clear intent of the law to impose one 25-year-to-life term regardless of the number of felonies for which the defendant stands currently convicted.” (Ibid.)

A further point asserted by defendant is that his position is supported by cases interpreting the law as it applies to defendants with only one strike. (See People v. Martin (1995) 32 Cal.App.4th 656; People v. Anderson (1995) 35 Cal.App.4th 587; People v. McKee (1995) 36 Cal.App.4th 540; People v. Hill (1995) 37 Cal.App.4th 220.) This point is rebutted in Thomas, where the court explained that the two calculations differ because the use of the principal term/subordinate term method prescribed for second strike defendants sentenced to a determinate term is not the same as the indeterminate term sentencing for third strike defendants. “[T]he provisions of section 667, subdivision (e)(1) and (e)(2)(A) do not relate to the same subject matter. Subdivision (e)(1) applies to the sentencing of defendants with only one prior felony conviction; subdivision (e)(2)(A) applies to the sentencing of defendants with two or more felony convictions. It is logical for the Legislature to impose harsher sentences on the latter. This leads us to our final point. Calculating a third strike defendant’s minimum maximum on each count separately is consistent with the ‘overarching intent’ of the statute ‘ “ to ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of serious and/or violent felony offenses.” ‘ [Citation.]” (People v. Thomas, supra, 56 Cal.App.4th at pp. 402-403, fn. omitted; see also People v. Williams (2004) 34 Cal.4th 397, 402.)

We see no reason to disagree with the courts that previously have rejected defendant’s arguments.

DISPOSITION

The judgment is affirmed.

Duffy, J.

WE CONCUR:

Mihara, Acting, P.J.

McAdams, J.

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

[2] The prior strike convictions were for sexual offenses committed in Tennessee.

[3] Defendant was sentenced to consecutive terms of 25 years to life on each count.

[4] “Harmelin presents the interpretational difficulties inherent in a plurality opinion. Justice Scalia is joined by the Chief Justice in the lead opinion, which holds that the length of a sentence is purely a matter of legislative prerogative, and cannot violate the Eighth Amendment, which contains no proportionality guarantee. (Harmelin, supra, 501 U.S. at pp. ___-___ [115 L.Ed.2d at pp. 864-866].) In concluding that Solem v. Helm[, supra,] 463 U.S. 277 [a case relied on by defendant for the proposition that the Eighth Amendment proscribes punishment disproportionate to an offender's culpability] was wrongly decided, Justice Scalia traces the history of the Eighth Amendment and concludes its adopters intended only to limit certain modalities or methods of punishment and not to guarantee against disproportionate sentences in general. (Harmelin, supra, at pp. ___-___, ___-___ [115 L.Ed.2d at pp. 845-847, 854- 862].) Reasserting that ‘death is different,’ the opinion upholds intracase proportionality review when a death sentence is meted out. However, Justice Scalia refuses to extend the Eighth Amendment ban on cruel and unusual punishment beyond the death penalty to cases involving imprisonment. (Id. at p. ___ [115 L.Ed.2d at p. 864].) In contrast, Justice Kennedy is joined by Justices O'Connor and Souter in a concurring opinion which recognizes a narrow noncapital proportionality principle to the extent that the Eighth Amendment forbids sentences which are grossly disproportionate. (Harmelin, supra, 501 U.S. at pp. ___-___ [115 L.Ed.2d at pp. 866-869].) It acknowledges that substantial (but not complete) deference must be given to legislative determinations regarding the length of sentences, and recognizes intracase and intercase proportionality only in rare cases, of which Solem, which the concurrence does not purport to overrule, is one. (Id. at pp. ___-___ [115 L.Ed.2d at pp. 869-873].)” (People v. Weddle (1991) 1 Cal.App.4th 1190, 1193-1194, fn. 1.)

[5] As the trial court noted in denying defendant’s motion to strike his prior convictions, this type of crime may cause serious harm to the young victims for the rest of their lives.

[6] “Unlike its federal counterpart, [article 1, section 17 of the California Constitution] forbids cruel or unusual punishment, a distinction that is purposeful and substantive rather than merely semantic. [Citations.] For that reason, it is construed separately from the federal prohibition against cruel and unusual punishment. [Citations.]” (People v. Carmony (2005) 127 Cal.App.4th 1066, 1085.)

[7] Defendant explains that although defense counsel did not object to this error at sentencing, such an unauthorized sentence is not waived by defense counsel’s failure to object. (See People v. Scott (1994) 9 Cal.4th 331, 354-355; People v. Zito (1992) 8 Cal.App.4th 736, 741-742.)

[8] The Three Strikes law is encompassed in two parallel sections of the Penal Code: sections 667, subdivisions (b) - (i) and 1170.12. The language in relevant subdivisions is essentially the same.

[9] As suggested by the court in People v. Ingram, supra, we shall refer to the calculations as “option (i),” “option (ii),” and “option (iii).” (40 Cal.App.4th at p. 1405, fn. 3.)

[10] Section 1170.12, subdivision (a) states: “Notwithstanding any other provision of law, if a defendant has been convicted of a felony and it has been pled and proved that the defendant has one or more prior felony convictions, as defined in subdivision (b), the court shall adhere to each of the following: . . . (6) If there is a current conviction for more than one felony count not committed on the same occasion, and not arising from the same set of operative facts, the court shall sentence the defendant consecutively on each count pursuant to this section. (7) If there is a current conviction for more than one serious or violent felony as described in paragraph (6) of this subdivision, the court shall impose the sentence for each conviction consecutive to the sentence for any other conviction for which the defendant may be consecutively sentenced in the manner prescribed by law.”