Opinion
B315524
03-30-2023
THE PEOPLE, Plaintiff and Respondent, v. ROBIN LEON JACKSON, Defendant and Appellant.
Robert L.S. Angres, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, Robert L. Davis and Gabriel Bradley, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Los Angeles County, No. BA486883 Lynne M. Hobbs, Judge. Affirmed.
Robert L.S. Angres, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, Robert L. Davis and Gabriel Bradley, Deputy Attorneys General, for Plaintiff and Respondent.
WILEY, J.
A jury found Robin Leon Jackson guilty of forcibly sodomizing and forcibly orally copulating two men. (Pen. Code, §§ 286, subd. (c)(2)(A), 287, subd. (c)(2)(A).) The court sentenced Jackson to 30 years to life.
Jackson says the trial court should have given lesser included offense instructions sua sponte. The setting of the allegations was county jail, where consensual sodomy and oral copulation are crimes. (Pen. Code, §§ 286, subd. (e), 287, subd. (e).) Jackson testified that one victim consented, so he says the court should have instructed the jury about these custody-based crimes. This argument is incorrect because, under the accusatory pleading test, courts look to the pleadings to identify lesser included offenses. The amended pleading did not allege facts about the custodial element of these offenses. Thus these offenses were not lesser included offenses. Instructions on these crimes were unnecessary.
Undesignated statutory citations are to the Penal Code.
I
The prosecution filed an information in July 2020. There is one victim from 2018 and one victim from 2012. Counts one and two are about the 2018 victim and counts three and four are about the 2012 victim.
Beginning with the two sodomy counts, the original information included the following language.
Count one: "the crime of SODOMY BY USE OF FORCE, in violation of PENAL CODE SECTION 286(c)(2)(A), a Felony, was committed by [] JACKSON, who did unlawfully participate [in] an act of sodomy with [the 2018 victim], while confined in Twin Towers Correctional Facility, a local detention facility ...."
Count three: "the crime of SODOMY BY USE OF FORCE, in violation of PENAL CODE SECTION 286(c)(2)(A), a Felony, was committed by [] JACKSON, who did unlawfully participate in an act of sodomy with [the 2012 victim], and did accomplish said act against said victim's will by force, violence, duress, menace and fear of immediate and unlawful bodily injury to said victim and to another."
Count two: "the crime of FORCIBLE ORAL COPULATION, in violation of PENAL CODE SECTION 288a(c)(2)(A), a Felony, was committed by [] JACKSON, who did unlawfully participate in an act of oral copulation with [the 2018 victim] and did accomplish said act against said victim's will by force, violence, duress, menace, and fear of immediate and unlawful bodily injury to said victim and to another." (The information and judgment refer to former section 288a. The legislature renumbered this to section 287 and amended it without substantive change. (Stats. 2018, ch. 423, § 49, eff. Jan. 1, 2019).)
Count four was identical to count two with the dates and name of the 2012 victim.
The information also alleged Jackson's conduct in all counts fell within the meaning of section 667.61, subdivisions (b) and (e), the "One Strike" law.
During trial, when the court discussed the jury instructions with the parties, it noted the two forcible sodomy counts had inconsistent language. The counts are for the same offense, forcible sodomy, but count one included language about confinement, while count three included language about force. The prosecution said the language of count one should match the language of count three. Jackson's counsel said, "I think the [sodomy in custody] lesser is appropriate [for count one], because it does include the language of 'in a correctional facility.' "
The next day of trial, the prosecution asked to amend count one to match the language of count three. The court allowed this. Jackson did not object. The court then asked Jackson if he requested any changes to the jury instructions. Jackson did not. He did not renew his argument that sodomy in custody was a lesser included offense. He did not raise the "expanded" accusatory pleading test.
The victims testified. Jackson and both victims were incarcerated at Twin Towers Correctional Facility.
The 2018 victim shared a cell with Jackson for about two days. The victim was 23 years old and was smaller than Jackson. Jackson offered him drugs and he accepted them. Then Jackson told the victim he needed to give something in return. That night, Jackson punched the victim's chest. Jackson forced his penis into the victim's mouth. He also put his penis into the victim's anus. The victim told Jackson he did not want to do this. The next morning, the victim told a deputy that Jackson raped him.
The 2012 victim was in a cell in the same area as Jackson. He said Jackson called him to his cell and threatened to put him in a coma if he did not do what Jackson wanted. He testified, "I was so scared I was about to lose my life." Jackson put his penis into the victim's anus. The victim told Jackson, "You're hurting me," and told Jackson to stop, but Jackson continued. Jackson also forced his penis into the victim's mouth. The victim went to a hospital the day he was released from jail and reported that Jackson had raped him.
Jackson testified. He said he had anal and oral sex with the 2018 victim, but they had agreed to a deal of drugs for sex and the sex was consensual. Jackson denied knowing the 2012 victim and denied having sex with him.
The court gave instructions on forcible sodomy and forcible oral copulation. It did not give instructions about custodial sodomy or custodial oral copulation.
The jury found Jackson guilty on all counts and found Jackson's conduct fell within the meaning of section 667.61, subdivisions (b), (c), and (e) because Jackson committed eligible sex offenses against more than one victim. The trial court sentenced Jackson to 30 years to life in prison: 15 years to life for each count, with consecutive punishments for the sodomy counts and concurrent punishments for the oral copulation counts.
II
A
The trial court did not need to instruct on lesser included offenses. Jackson's argument is solely about counts one and two, the counts for which he testified that the victim consented.
Our review is independent. (People v. Licas (2007) 41 Cal.4th 362, 366.)
A trial court must instruct sua sponte on a lesser included offense if there is substantial evidence the defendant is guilty of the lesser offense but not the charged offense. (People v. Breverman (1998) 19 Cal.4th 142, 177.) This rule is meant to avoid the danger of all-or-nothing verdict choices that can cause overly harsh or overly lenient results. (See id. at p. 155.)
We analyze whether the court satisfied its sua sponte duty. Jackson focuses on that duty in his briefing. He does not address whether he properly requested the lesser included instruction. Because of the court's sua sponte duty to instruct, the analysis would be the same if we found Jackson properly requested the lesser included offense instruction.
There are two tests to determine if an offense is lesser and necessarily included in another offense. (People v. Lopez (1998) 19 Cal.4th 282, 288-289.) Only one test, the accusatory pleading test, is at issue here. Under that test, courts consider whether the charging allegations describe the offense in a way that necessarily includes a lesser offense. (Ibid.) A lesser offense is included within the greater charged offense if the accusatory pleading alleges facts that include all the elements of the lesser included offense. (People v. Bailey (2012) 54 Cal.4th 740, 748.) This rule ensures the jury gets the full range of verdict options that, by law and with notice to both parties, "the accusatory pleading itself' presents and "are thus closely and openly connected to the case." (People v. Birks (1998) 19 Cal.4th 108, 119.)
We pause to identify which pleading to consider. As to count one, Jackson's opening appellate brief directs us to the custodial language from the original information. In response, the prosecution says it amended that information and we must apply the amended information.
The pertinent document is the amended pleading. At any stage of pending proceedings, the court may allow the prosecution to amend an information for a defect or insufficiency. (§ 1009.) The defendant then must plead to the amended information, "and the trial or other proceeding shall continue as if the pleading had been originally filed as amended." (Ibid.; see People v. Scott (2013) 221 Cal.App.4th 525, 532-533 [amended pleading supersedes original pleading, which has no further effect].) The court properly allowed the prosecution to amend the information. Jackson does not contest this ruling. After the amendment, the original pleading had no further effect and the amended pleading controlled. We therefore use the amended information.
As to the amended information, the custodial offenses are not lesser included offenses. Jackson's supplemental brief correctly concedes the prosecution "appears to be correct" that the amendment "remov[ed] the basis for an instruction on a lesser offense under the traditional accusatory pleading test." We explain.
There are four relevant crimes.
First, forcible sodomy is sodomy against the victim's will by means of force, violence, duress, menace, or fear of immediate unlawful bodily injury. (§ 286, subd. (c)(2)(A).)
Second, forcible oral copulation is oral copulation against the victim's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury. (§ 287, subd. (c)(2)(A).)
Third, custodial sodomy, is sodomy-regardless of force- while a defendant is confined in state prison or a local detention facility. (§ 286, subd. (e).)
Fourth, custodial oral copulation is oral copulation- regardless of force-while a defendant is confined in state prison or a local detention facility. (§ 287, subd. (e).)
The custodial crimes are not lesser included offenses under the accusatory pleading test. The amended pleading is silent about confinement in state prison or a local detention facility. Thus, the pertinent pleading does not allege facts that include all the elements of the purported lesser included offenses.
Jackson asks us to apply the "expanded" accusatory pleading test from People v. Ortega (2015) 240 Cal.App.4th 956 and find that in this particular case, custodial sodomy and oral copulation are lesser included offenses of forcible sodomy and oral copulation. In Ortega, the court considered evidence from a preliminary hearing when applying the accusatory pleading test. (Id. at p. 967, 970.) Because there was evidence at the preliminary hearing that the conduct took place while Jackson was in custody, he contends the court needed to instruct on custodial sodomy and custodial oral copulation.
The expanded accusatory pleading test is inconsistent with the California Supreme Court's decision in People v. Montoya (2004) 33 Cal.4th 1031 (Montoya), which requires courts to "consider only the pleading" in determining whether a charged offense includes a lesser included offense under the accusatory pleading test. (Id. at p. 1036.) The court disapproved People v. Rush (1993) 16 Cal.App.4th 20, which considered preliminary hearing evidence when applying the accusatory pleading test. (Montoya, at p. 1036, fn. 4.) Several Courts of Appeal have declined to follow Ortega and have continued to follow the rule excluding preliminary hearing evidence when applying the accusatory pleading test. (See, e.g., People v. Alvarez (2019) 32 Cal.App.5th 781, 787-790 (Alvarez); People v. Munoz (2019) 31 Cal.App.5th 143, 156-158 (Munoz); People v. Macias (2018) 26 Cal.App.5th 957, 963-965.)
Jackson says Montoya is not dispositive because it involved multiple convictions rather than lesser included offenses, but Courts of Appeal have correctly rejected this contention. The Montoya court articulated the general standard for the accusatory pleading test and that standard applies to determine whether lesser included offense instructions are warranted. (Munoz, supra, 31 CalApp.5th at p. 158; Alvarez, supra, 32 Cal.App.5th at pp. 788-789.) The trial court did not need to give instructions about sodomy and oral copulation while in custody.
B
Jackson forfeited an argument that his sentence is cruel or unusual under the state and federal Constitutions. On the merits, his argument fails.
The legislature mandates consecutive sentences of 15 years to life for Jackson because the jury found he committed specified sex offenses against two victims in the same case. (§ 667.61, subds. (b), (c)(6) &(7), (e)(4), &(i).) Under the statute, the court could not strike this finding. (Id., subd. (g).) Jackson argues his 30 years to life sentence under this statute is cruel or unusual.
Jackson forfeited this argument. Deciding whether a sentence is cruel or unusual requires a fact-specific inquiry and a defendant forfeits the claim by failing to raise it in the trial court. (People v. Baker (2018) 20 Cal.App.5th 711, 720 (Baker).) Jackson's counsel declined the court's request to write a sentencing memorandum and explained, "I don't believe there are any necessary legal arguments that I can make .... [¶] I do have a number of things to say that are not -- that aren't legal arguments per se." Counsel argued the base sentences without section 667.61 would be appropriate, but "I don't know how we get there at this stage." This is the opposite of preserving a legal issue.
Jackson's other statements at sentencing did not preserve the issue. His counsel asserted that before trial, counsel and the prosecutor thought an indeterminate life sentence would be a "miscarriage of justice." Counsel also discussed Jackson's age and the nature of his crimes. But neither Jackson, the prosecution, nor the court used the words "cruel," "unusual," "Eighth Amendment," or "California Constitution." No one discussed the seminal California case on this issue, In re Lynch (1972) 8 Cal.3d 410 (Lynch), or whether the sentence "shocks the conscience" (id. at p. 424). No one discussed whether the sentence was "grossly disproportionate" under the United States Constitution. (Graham v. Florida (2010) 560 U.S. 48, 59-60 (Graham).) There are no magic words to preserve a cruel or unusual argument, but disclaiming legal arguments and giving none of these clues about the nature of the argument constitutes a forfeiture.
To foreclose future proceedings on this matter, however, we address the merits.
Fixing appropriate penalties for crimes is generally a legislative function, subject to state and federal constitutional constraints. (In re Palmer (2021) 10 Cal.5th 959, 967-968 (Palmer).) Article I, section 17 of the California Constitution bars cruel or unusual punishment. Courts consider whether the punishment is so disproportionate to the crime that it "shocks the conscience and offends fundamental notions of human dignity." (Lynch, supra, 8 Cal.3d at p. 424.)
Courts give the broadest discretion possible to legislative judgments about appropriate punishments. Claims of excessive punishment must overcome a considerable burden. (Palmer, supra, 10 Cal.5th at p. 972.)
Courts follow three analytical techniques to review excessiveness claims under the California Constitution: (1) examine the nature of the offense and the offender, with particular attention to the degree of danger both pose to society; (2) compare the punishment with the punishment California imposes for more serious offenses; and (3) compare the punishment with the punishment other jurisdictions impose for the same offense. (Lynch, supra, 8 Cal.3d at pp. 425-428.) Jackson raises arguments under the first two techniques, only.
We start with the first Lynch technique: the nature of the offense and the offender. Jackson was over 50 when he committed the crimes. He was not an impulsive youth. Nor did he succumb to another person's pressure.
Jackson has a long criminal history. His probation report has 28 adult criminal history entries between 1980 and 2018. These are for a range of convictions, including possessing and transporting drugs (Health & Saf. Code, §§ 11377, 11379); theft, grand theft, and burglary (Pen. Code, §§ 484, 487, 459); and driving under the influence (Veh. Code, § 23152).
Although Jackson did not use a weapon, he punched one victim and threatened to put the other victim in a coma. Jackson's sexual violations likely caused trauma to his victims that may persist whether or not there was lasting physical harm. At sentencing, the court noted that Jackson took advantage of victims who were particularly vulnerable. The 2018 victim was much younger than Jackson and the 2012 victim appeared to be developmentally disabled.
Jackson's repetitive conduct is pertinent to the issue of his danger to society. He used force to get sex in 2012 and he did it again in 2018.
Jackson notes he has a substance abuse problem and he took drugs before the 2018 offenses. Aside from his drug convictions, there is little evidence about Jackson's potential drug abuse problem in the record. As to the 2012 offenses, there is no evidence drugs played a role. As to the 2018 offenses, he did not testify that his own drug use affected his volition. His drug use does not make his sentence conscience-shocking.
The nature of the offense and the offender do not make Jackson's sentence excessive.
Under the second Lynch technique, Jackson identifies many California crimes and their punishments. Some of the crimes he lists are: second degree murder (§ 190, subd. (a) [generally, mandatory term of 15 years to life]); first degree murder (ibid. [potential sentence of 25 years to life]); lewd conduct with a child under 14 (§ 288) or continuous sexual abuse of a child under 14 (§ 288.5) with two earlier convictions of serious sex crimes (§ 667.51, subd. (c) [mandatory term of 15 years to life]); attempted premeditated murder (§ 664, subd. (a) [maximum base term of nine years]); and assault on a child under age eight causing comatose state or permanent paralysis (§ 273ab, subd. (b) [life with the possibility of parole]). None of these comparisons are apt because none of the punishments are for two current offenses against two victims, with two offenses against each victim. These comparisons do not meet the considerable burden required to override the legislature's judgment about the appropriate punishment.
We do not analyze the third Lynch technique because Jackson does not do so. Jackson's sentence is not cruel or unusual under the California Constitution.
Jackson also raises the Eighth Amendment of the United States Constitution, which bars cruel and unusual punishment. The state and federal approaches have considerable overlap. (Baker, supra, 20 Cal.App.5th at p. 733.) Courts look at whether the sentence is grossly disproportionate to the crime. (Graham, supra, 560 U.S. 48, 59-60.) For the same reasons the sentence does not violate the California Constitution, it does not violate the United States Constitution.
DISPOSITION
The judgment is affirmed.
We concur: STRATTON, P. J., GRIMES, J.