Opinion
A117124
7-30-2008
THE PEOPLE, Plaintiff and Respondent, v. KEVIN GREGORY EDDY, Defendant and Appellant.
Not to be Published
Defendant and appellant Kevin Gregory Eddy pled no contest to 11 felony counts stemming from a violent sexual assault occurring over a four-hour period. He admitted all alleged prior conviction allegations and was sentenced to 300 years to life, plus three consecutive life terms, plus 23 years of enhancements. (Pen. Code, §§ 205, 220, 245, subd. (a)(1), (2), 261, subd. (a)(2), 273.5, subd. (a), 286, subd. (c)(2), 422, 667, subds. (b)-(i), 1170.12, subds. (a)-(d), 12020, subd. (a)(1), 12021.1.) On appeal, Eddy argues that his overall sentence constitutes cruel and/or unusual punishment, and that sentencing for two offenses constitutes multiple punishments. We affirm the judgment, including the sentence.
All further statutory references are to the Penal Code.
I. FACTS
At the time of the incident, victim C.M. had recently ended a romantic relationship with appellant Kevin Gregory Eddy, although she did not force him to move out of her home. On March 25, 2006, C.M. returned from a ski trip and found that Eddy was angry that she had not answered his telephone calls. She reminded him that the relationship was over and ordered him to move out of the residence. Later that day, Eddy approached C.M. as she walked into her house and threatened her with a sawed-off shotgun. When she tried to run away to call the police, Eddy knocked her unconscious with the gun. C.M. awoke to find herself nude, face down and tied to the bed with electrical cord. Over the next few hours, Eddy repeatedly threatened, raped, sodomized and beat her. At the end of the ordeal, C.M. successfully convinced Eddy to set her free.
Later that day, Eddy telephoned his brother, telling him some of what had occurred and threatening to go on a shooting spree. His brother alerted the Vacaville police, who went to C.M.s home to conduct a welfare check. There the officers encountered Eddy and found a shotgun inside the residence. Eddy was arrested. While in custody and undergoing a physical examination in the presence of police, Eddy remarked that the pain of the examination "was nothing compared to the pain [I] gave her." C.M. had admitted herself into a hospital; the officers located her and subsequently took her statement about the incident.
Eddy was charged by information with 11 counts, including two counts of assault with a firearm, and single counts of making criminal threats; possession of a deadly weapon; possession of a firearm with a prior conviction; assault by means likely to produce great bodily injury; forcible rape; forcible sodomy; assault with intent to commit rape; aggravated mayhem; and inflicting corporal injury on a cohabitant. (§§ 205, 220, 245, subd. (a)(1), (2), 261, subd. (a)(2), 273.5, subd. (a), 286, subd. (c)(2), 422, 12020, subd. (a)(1), 12021.1.) On each count Eddy was also alleged to have committed three prior felony convictions constituting strikes and/or enhancements. (See §§ 667, 667.61, 1170.12, 12022.5, 12022.53, 12022.7.) The information alleged that in 1982, Eddy was convicted of assault with intent to commit rape and assault with a firearm, and in 1989 of assault with a semiautomatic firearm. (§§ 220, 245, subds. (a)(2), (b).)
At trial, Eddy pled no contest to all charges and admitted the truth of all prior conviction allegations, based on the preliminary hearing testimony. The sentencing court, noting the complicated nature of the case, explained the factual predicates of each count. The court imposed nine terms to run consecutively, but stayed those for possession of a deadly weapon and possession of a firearm with a prior conviction, to avoid multiple punishment. (See §§ 654, 12020, 12021.1.) Eddy received consecutive sentences of 25 years to life for both assaults with a firearm and for the convictions for making criminal threats, assault by means likely to produce great bodily injury, assault with intent to commit rape, and inflicting corporal injury to a cohabitant. (§§ 220, 245, subd. (a)(1), (2), 273.5, subd. (a), 422.) He received consecutive sentences of 75 years to life each for the charges of forcible rape and forcible sodomy. (§§ 261, subd. (a)(2), 286 subd. (c)(2).) Based on the "Three Strikes" law, he received a sentence of three consecutive life terms plus 13 years in enhancements for the aggravated mayhem charge. (§ 205.) Eddy received two five-year enhancements for his prior felony convictions. (See § 667, subd. (a)(1).) In all, Eddy was sentenced to a term of 300 years to life, plus three consecutive life terms, plus 23 years in enhancements.
II. MULTIPLE PUNISHMENT
First, Eddy argues that the trial court erred by imposing consecutive life terms for both assaults by means likely to produce great bodily injury and inflicting corporal injury on a cohabitant. He reasons that this constituted multiple punishment, barred by section 654. An act that is punishable by different provisions of law must be punished under the provision providing for the longest potential term of imprisonment. However, in no case may a single act be punished under more than one provision. (§ 654, subd. (a).) Whether a course of criminal conduct gives rise to more than one act depends on the intent and objective of the actor. (People v. Norrell (1996) 13 Cal.4th 1, 6; Neal v. State of California (1960) 55 Cal.2d 11, 19.) When a defendant is convicted of two crimes that are incident to a single objective, he or she may not be punished for both. (People v. Norrell, supra, 13 Cal.4th at p. 6; People v. Rogers (1981) 124 Cal.App.3d 1071, 1080.) However, when a perpetrator entertains multiple criminal objectives that are independent of, and not merely incidental to, each other, he or she may be punished for independent violations committed in pursuit of each objective, even if those violations share common acts or are parts of an otherwise indivisible course of conduct. (People v. Beamon (1973) 8 Cal.3d 625, 639; see People v. Ramirez (1979) 93 Cal.App.3d 714, 728.) If each act is volitional and calculated, separated by periods of time during which reflection is possible, section 654 does not prohibit punishment of each act because each act evinces a separate intent to do violence. (People v. Akins (1997) 56 Cal.App.4th 331, 338-339.)
The determination of whether a defendants acts constitute an indivisible course of conduct is a factual one, based on the trial courts findings concerning the defendants intent and objective. (People v. Liu (1996) 46 Cal.App.4th 1119, 1135-1136.) On appeal, we will not overturn the finding that Eddys objective or intent in committing assault by means likely to produce great bodily injury and committing corporal injury to a cohabitant were independent and not incidental to each other, unless that finding is unsupported by any substantial evidence. (See People v. Liu, supra, 46 Cal.App.4th at pp. 1135-1136; see also People v. Norrell, supra, 13 Cal.4th at p. 6; People v. Ortega (2000) 84 Cal.App.4th 659, 666.)
The trial court found the factual predicate for assault by means likely to produce great bodily injury was Eddys use of the gun to strike C.M. in the head, rendering her unconscious. (See § 245, subd. (a)(1).) It found that when Eddy inflicted this injury, he did so in order to prevent C.M. from alerting police to his presence. It also found that this offense occurred before C.M. was tied up and sexually assaulted. By contrast, the factual predicate of the offense of inflicting corporal injury to a cohabitant was Eddys beating of C.M. between sexual assaults. (§ 273.5, subd. (a).) The infliction of these injuries occurred well after the initial blow that knocked C.M. unconscious and occurred inside the house.
Eddys trial counsel conceded that this blow to the head that knocked C.M. unconscious involved force likely to cause great bodily injury.
The trial court found that these two offenses arose from different purposes and occurred at different locations within the home. As such, we find that substantial evidence supports the trial courts determination that Eddys objective or intention in performing these two criminal offenses were the product of separate objectives and were not incidental to one another. Thus, we rejects Eddys multiple punishment claim of error. (See § 654.)
III. CRUEL AND/OR UNUSUAL PUNISHMENT
A. Federal Constitution
Eddy also argues that his total sentence violated the federal and state constitutional bans on cruel and/or unusual punishment. The United States Constitution bars the infliction of any cruel and unusual punishment. (U.S. Const., 8th Amend.) Under the federal standard, even a cruel punishment may be constitutional as long as it is not unusual. (See Harmelin v. Michigan (1991) 501 U.S. 957, 994-995 (lead opn. of Scalia, J.).) A punishment that is grossly disproportionate to the severity of the crime violates the Eighth Amendment. However, it is exceptionally rare for a noncapital punishment to fail the federal proportionality test. (Ewing v. California (2003) 538 U.S. 11, 19, 21 (plur. opn. of OConnor, J.); see Rummel v. Estelle (1980) 445 U.S. 263, 271-272.) The United States Supreme Court has consistently upheld mandatory sentencing schemes for habitual offenders such as and including Californias Three Strikes law. (See Lockyer v. Andrade (2003) 538 U.S. 63, 77; see also Ewing v. California, supra, 538 U.S. at pp. 30-31 (plur. opn. of OConnor, J.); Harmelin v. Michigan, supra, 501 U.S. at pp. 994-995 (lead opn. of Scalia, J.); Rummel v. Estelle, supra, 445 U.S. at p. 284; Spencer v. Texas (1967) 385 U.S. 554, 567-569.) It routinely upholds lengthy sentences for offenses less severe than those committed by Eddy. (See Lockyer v. Andrade, supra, 538 U.S. at pp. 72-77 [upholding two consecutive 25 years to life terms following third strike petty theft conviction]; see also Ewing v. California, supra, 538 U.S. at pp. 20-31 (plur. opn. of OConnor, J.) [upholding 25 years to life sentence under Three Strikes law for theft of three golf clubs].) Thus, we find that Eddys total sentence will not violate the federal Constitution as long as it was correctly imposed pursuant to our states Penal Code. (See pt. III.B., post.)
The People argue that because he failed to object to the constitutionality of his sentence at trial, Eddy waived that issue for purposes of appeal. Eddy responds, inter alia, that if he is precluded from raising this issue on appeal because his trial counsel failed to make a proper objection, the failure to do so constitutes inadequate assistance of counsel. Thus, regardless of whether an objection was required, we will address the merits of this issue.
B. California Constitution
The California Constitution bans all cruel or unusual punishment. (Cal. Const., art. I, § 17.) In order to find that a punishment violates the California Constitution, we must find, inter alia, that it is so disproportionate to the underlying crime that it shocks the conscience and offends fundamental notions of human dignity. (In re Lynch (1972) 8 Cal.3d 410, 424; People v. Cartwright (1995) 39 Cal.App.4th 1123, 1136.) In making a proportionality determination, the court looks at the abstract nature of the offense, the nature of the offender, and the circumstances of the offense committed. (People v. Dillon (1983) 34 Cal.3d 441, 477.) Relevant factors include the perpetrators age, criminal background, state of mind and motive; the manner in which he or she committed the crimes; the consequences of those acts; and the danger that he or she poses to society. (Id. at p. 479; People v. Cartwright, supra, 39 Cal.App.4th at p. 1136 .)
At the age of 45, Eddy inflicted a humiliating, premeditated and torturous series of offenses against his victim. He raped, sodomized and assaulted C.M. in order to punish her and did so without any remorse either during or immediately after the commission of the acts. Months after his arrest, during the preliminary hearing, Eddy made outbursts evidencing a continued lack of remorse. His criminal history also supports the proportionality of a lengthy sentence. In 1982, he was convicted of a violent sexual attack. In that matter, he appeared nude in a public park and forced a woman into bushes at gunpoint. As in C.M.s case, when the 1982 victim resisted, Eddy struck her in the head with a gun, leaving a wound that required 80 stitches to repair. In that case, a psychological specialist opined that the likelihood of recidivist behavior on Eddys part was high.
Eddy is unable to cite a majority decision of any court suggesting that the imposition of a sentence longer than he would be able to complete by the end of his life necessarily constitutes cruel or unusual punishment. To the contrary, similar sentences have consistently been affirmed in appropriate circumstances. (See, e.g., People v. Retanan (2007) 154 Cal.App.4th 1219, 1230-1231 [135 years to life term for recidivist sexual offender]; People v. Sullivan (2007) 151 Cal.App.4th 524, 568-570 [210 years to life for recidivist robber]; People v. Wallace (1993) 14 Cal.App.4th 651, 666-667 [more than 283 years for violent sexual offender]; People v. Bestelmeyer (1985) 166 Cal.App.3d 520, 531-532 [129 years for sexual predator].)
We also disagree with Eddys contention that his sentence is unusual. Sentences in California are pronounced by trial courts in accordance with statutory provisions and the limited discretion accorded to them by our Legislature. (See People v. Caddick (1984) 160 Cal.App.3d 46, 51-52.) In Eddys case, the trial court linked the underlying incident with his similar 1982 offense and his 1989 prior conviction, finding that his case was appropriate for application of the Three Strikes law. The trial court properly sentenced Eddy pursuant to applicable Penal Code provisions. We reject the claim that the sentence imposed constituted cruel and/or unusual punishment.
Count 1, violation of section 245, subdivision (a)(2), felony assault with a firearm, carries with it a term of 25 years to life should the defendant have two or more prior felony convictions, pursuant to section 1170.12, subdivision (c)(2)(A)(ii).
Count 2, violation of section 422, felony punishment for threats, carries with it a term of 25 years to life should the defendant have two or more prior felony convictions, pursuant to section 1170.12, subdivision (c)(2)(A)(ii).
Count 5, violation of section 245, subdivision (a)(2), felony assault with a firearm, carries with it a term of 25 years to life should the defendant have two or more prior felony convictions, pursuant to section 1170.12, subdivision (c)(2)(A)(ii).
Count 6, violation of section 245, subdivision (a)(1), assault by means to induce great bodily injury, carries with it a term of 25 years to life should the defendant have two or more prior felony convictions, pursuant to section 1170.12, subdivision (c)(2)(A)(ii).
Count 7, violation of section 261, subdivision (a)(2), rape by means of force, carries with it a term of 75 years to life should the offense fall within one of the specified sexual offenses subject to life imprisonment, pursuant to section 667.61, subdivisions (a) and (b), and the defendant has suffered two or more prior felony convictions, pursuant to section 1170.12, subdivision (c)(2)(A)(i).
Count 8, violation of section 286, subdivision (c)(2), sodomy by means of force, carries with it a term of 75 years to life should the offense fall within one of the specified sexual offenses subject to life imprisonment, pursuant to section 667.61, subdivisions (a) and (b), and the defendant has suffered two or more prior felony convictions, pursuant to section 1170.12, subdivision (c)(2)(A)(i).
Count 9, violation of section 220, assault with intent to commit rape, carries with it a term of 25 years to life should the defendant have two or more prior felony convictions, pursuant to section 1170.12, subdivision (c)(2)(A)(ii).
Count 10, violation of section 205, aggravated mayhem, carries with it a term of three consecutive life sentences should the defendant have two or more prior felony convictions, pursuant to section 1170.12, subdivision (c)(2)(A)(i). Pursuant to section 12022.53, subdivisions (a)(2) and (b), a defendant who uses a firearm in the commission of a section 205 felony shall be punished by an additional 10-year enhancement. Pursuant to section 12022.7, a defendant who personally inflicts great bodily injury during the commission of a felony shall be punished by an additional three-year enhancement.
Count 11, violation of 273.5, subdivision (a), infliction of injury on cohabitant, carries with it a term of 25 years to life, should the defendant have two prior felony convictions, pursuant to section 1170.12, subdivision (c)(2)(A)(ii).
Pursuant to section 667, subdivision (a)(1), a defendant who has suffered previous felony convictions will have a five-year enhancement run consecutively for each prior conviction brought and charged separately. As Eddy admitted to prior convictions on violations of sections 220 and 245, subdivision (a)(2) (occurring in the same instance), and violation of section 245, subdivision (b), the court imposed two five-year enhancements.
Eddys total sentence of 300 years to life, plus three consecutive life terms, plus 23 years determinate term, is correctly calculated pursuant to our Penal Code.
The judgment, including the sentence, is affirmed.
We concur:
Sepulveda, J.
Rivera, J.