Opinion
F049152
5-30-2007
THE PEOPLE, Plaintiff and Respondent, v. JOHN NELSON NIXON, Defendant and Appellant.
Janet J. Gray, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Connie A. Proctor, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
A jury convicted John Nelson Nixon, appellant, of failing to register as a sex offender in violation of Penal Code section 290, subdivision (g)(2). The court found true the allegation of three prior "strike" convictions: a violation of section 288a, subdivision (c), oral copulation by force; a violation of section 289, subdivision (a), penetration by foreign object; and a violation of section 460, subd. (a), first degree burglary, all occurring on a single occasion in 1990. After the court denied appellants motions for new trial, to strike his prior convictions, and to reduce the felony to a misdemeanor, the court sentenced appellant to 25 years to life.
All further statutory references are to the Penal Code. Unless noted, all references to section 290 are to former section 290 in effect at the time of these events. (See Stats. 2003, ch. 634, § 1.3.)
Appellant argues that there is insufficient evidence to uphold his conviction, that former section 290 is void for vagueness, that the trial court erred when it gave a general intent instruction, that the trial court abused its discretion when it declined to dismiss appellants prior strike allegations, and that the sentence constitutes cruel or unusual punishment. We disagree and affirm.
FACTS
Prosecution Case
On May 15, 2004, appellants mother entered into an agreement with Betty Rivera-Sembach to rent a trailer for appellant to live in while appellant was in Ridgecrest. Appellants mother listed both herself and appellant as applicants on the rental application. Rivera-Sembach spoke with appellant "[i]n depth" before the rental agreement was signed. Appellants mother paid the rent. Appellant moved into the trailer on May 15, 2004.
Rivera-Sembach, who lived on the same property, allowed appellant, an artist, to use a second trailer on the property as his studio. Rivera-Sembach saw appellant on May 15, 2004, and, although she could not recall specific dates, she continued to see him "[a]lmost daily" or "often" as he passed by her house to get to his trailer. When asked if appellant actually stayed at the trailer or just visited, Rivera-Sembach testified that appellant "actually stayed there," and that, if his mother did not bring him food, he would ask her to fix food for him, although she agreed to do so only once. Rivera-Sembach noticed that appellant slept in the trailer and appeared to be living there. She saw some of his paintings. Rivera-Sembach did not see appellant at the trailer after he was arrested.
At 1:00 a.m. on June 27, 2004, police officers arrived at the trailer and knocked on the door. Appellant, who was the only person in the trailer, answered the door and was subsequently arrested. Mens clothing was found in the drawers and a pile of dirty laundry was in the closet. The bed had been slept in and there were dirty dishes in the sink. Artwork and personal items were scattered throughout the trailer.
Appellant did not register as a sex offender at any time in 2004 in Ridgecrest.
Defense Case
Appellants mother, who lived in Ridgecrest with her other son, testified that she entered into an agreement with Rivera-Sembach to rent a trailer. It was her intent that the trailer be appellants home whenever he was in Ridgecrest. According to his mother, appellant lived in the trailer for approximately three days. She brought him food on the day he moved in, and again on the third day, but she did not see him in between. She saw appellant a total of five or six days from the day he moved into the trailer until he was arrested.
Appellants mother used the trailer herself approximately three times a week to rest. She would stop by between jobs, as it was closer than going to her home two miles away. When she did, she would bring dishes and food so that she could eat there.
Appellants mother further claimed the clothes in the trailer were hers. She testified that the mens clothing belonged to men who had previously used the trailer, although she did not see any clothes in the trailer prior to renting it.
Two days before appellants arrest, his mother picked him up at a highway turn-off outside of Ridgecrest and drove him back to the trailer. He was carrying only a knapsack with toiletries in it at the time. The next day, appellants mother picked him up at the trailer and drove him to an all-day art exhibit. After the exhibit, she drove him back to the trailer. Appellants mother claimed to have sent appellant money at a location outside of Ridgecrest between May 15 and June 27, 2004.
Stipulated Evidence
Following the prosecutions case-in-chief, the trial court informed the jury that "it has been stipulated between the parties that [appellant] is and was required to register under the provisions of ... section 290 as of January 1st of 2001. The second stipulation is [appellant] knew he was required to so register."
DISCUSSION
1. Sufficiency of the Evidence
Appellant first challenges the sufficiency of the evidence to support his conviction for violating section 290. Specifically, he contends that there was insufficient evidence to establish (1) that he remained in Ridgecrest for more than five consecutive working days, (2) that he intended to make Ridgecrest a temporary or permanent residence, and (3) that his failure to register was a willful violation of the statute. We disagree.
In determining the sufficiency of evidence on appeal, we must review the entire record in the light most favorable to the judgment to determine whether it contains evidence that is reasonable, credible, and of solid value that would support a rational trier of fact in finding appellant guilty beyond a reasonable doubt. (People v. Michaels (2002) 28 Cal.4th 486, 515.)
Section 290, subdivision (g)(2) makes it a felony for a person who is required to register under the section to fail to do so. Section 290 requires that a convicted sex offender register in "the city in which he or she is residing, or if he or she has no residence, is located ... within five working days of coming into, or changing his or her residence or location within, any city, county, or city and county, ... in which he or she temporarily resides, or, if he or she has no residence, is located." (§ 290, subd. (a)(1)(A).) Section 290 further requires: "If the person who is registering has more than one residence address or location at which he or she regularly resides or is located, he or she shall register ... in each of the jurisdictions in which he or she regularly resides or is located." (Id., subd. (a)(1)(B).) In addition, "If the person who is registering has no residence address, he or she shall update his or her registration no less than once every 60 days, in addition to the requirement in subparagraph (A) ...." (Id., subd. (a)(1)(C).)
Appellant first contends that he was a transient and that there was insufficient evidence that he resided in Ridgecrest for five consecutive working days. He compares his case to People v. North (2003) 112 Cal.App.4th 621, in which the court stated "an offender is `located in a jurisdiction for purposes of registration when he is present in the jurisdiction on five consecutive working days." (Id. at pp. 634-635.) The decision in North, however, expressly limited the application of its holding to transient sex offenders, for whom it was necessary to clarify the term "location" and what constitutes a change in location.
There is no evidence here that appellant was a transient. As explained in People v. Annin (2004) 117 Cal.App.4th 591, "[a]ppellants lack of specificity about precisely where he stayed, and for how long, simply does not preclude the reasonable inference" that he had a place to stay for more than a "transient visit." (Id. at p. 601.) "This is not a case where, for example, a person is homeless and changes the place where he sleeps from under the freeway to a nearby doorway, and then is prosecuted ... for failing to notify of a change in `location." (Id. at p. 608.)
For this reason, we instead look to People v. Poslof (2005) 126 Cal.App.4th 92, in which the defendant made a similar argument to that made here: that there was no evidence that the defendant was at the home for five consecutive working days. The court stated:
"First, there need not be evidence of this. There need only be substantial evidence [the] defendant had established a residence at the ... home and failed to register within five working days of doing so." (Id. at p. 106.)
Before we address the sufficiency of the evidence to establish that appellant was required to register at the Ridgecrest residence, we address appellants assertion, made in his reply brief, that respondent, in addressing the sufficiency of the evidence, makes two arguments on appeal that were not made in the trial court.
First, appellant claims respondent pursues a new theory for the first time on appeal—to wit, that "even if appellant had not stayed in Ridgecrest for five consecutive days, a person subject to registration must nevertheless register within five working days of changing his residence." We agree that this is an accurate characterization of respondents claim. We do not agree, however, that this is a novel theory on appeal. At trial, the prosecutor argued that appellant was required to register within five working days of moving into Ridgecrest on May 15, and, although appellant "might not have been there 24 hours a day, day in and day out, ... he was basically there from the time that rental agreement was reached on the 15th day of May till the 27th day of June when he was arrested and taken away. He never registered."
Second, appellant objects to respondents argument on appeal that the relevant statute requires that a person required to register do so in each jurisdiction where he or she resides, regardless of how long he or she stays there. Again, we disagree with appellant that this is a novel theory on appeal. Respondents actual argument is that, even if appellant maintained another residence somewhere else, he was still required to register in Ridgecrest. This argument was made by the prosecutor in closing, and the jury was instructed that a person could have more than one residence and was required to register in each.
We will not discuss appellants assertion in his reply brief that both of the complained-of arguments made by respondent somehow ignore the section 290 definition of a residence that was in effect throughout 2005: "a place where a person is living or temporarily staying for more than five days, such as a shelter or structure that can be located by a street address, including, but not limited to, houses, apartment buildings, motels, hotels, homeless shelters, and recreational and other vehicles." (Former § 290, subd. (a)(1)(C)(vii); Stats. 2004, ch. 761, § 1.3.) This definition became effective January 1, 2005, after appellants offense took place. We, therefore, need not consider it.
Here, there was ample evidence to establish that appellant was required to register at the Ridgecrest residence. Appellants mother entered into a rental agreement on his behalf on May 15, 2004. Appellant moved into the trailer the same day. When appellant was arrested six weeks later, he was found living in the same trailer. Rivera-Sembach, who lived at the same location as the trailer, saw appellant "[a]lmost daily" or "often" as he passed by her house to get to his trailer. Rivera-Sembach testified that appellant slept and worked at the trailer. Appellant was the only one in the trailer at the time of his arrest, which occurred at 1:00 oclock in the morning. Mens clothing and dirty dishes were found in the sink at the time of appellants arrest, further indicia that the trailer was used as appellants residence. From this evidence, there is no support for appellants contention that he was a transient or that, under People v. North, he was not required to register.
We also reject appellants argument that there was insufficient evidence that he intended to make Ridgecrest a temporary or permanent residence, because it was his mother who made the arrangements for and paid for the trailer. According to appellant, "it appears that while [his mother] may have had the intent that appellant stay, that appellant did not share his mothers intent." We disagree. While appellants mother paid the rent, she included his name on the rental agreement. In addition, Rivera-Sembach spoke with appellant prior to his moving in, which he did right after the agreement was signed.
Finally, we reject appellants contention that there is insufficient evidence that his failure to register was a willful violation of the statute. Section 290, subdivision (g)(1) and (2) provides that any person who willfully fails to comply with the registration requirements is guilty of a crime. Our Supreme Court explained in People v. Garcia (2001) 25 Cal.4th 744, 752, that the term "willfully," as used in section 290, means that the defendant actually must know of the obligation to register.
"The word `willfully implies a `purpose or willingness to make the omission. [Citation.] Logically one cannot purposefully fail to perform an act without knowing what act is required to be performed.... Accordingly, a violation of section 290 requires actual knowledge of the duty to register. A jury may infer knowledge from notice, but notice alone does not necessarily satisfy the willfulness requirement." (People v. Garcia, supra, at p. 752.)
Here, there was substantial evidence supporting the jurys conclusion that appellant willfully failed to register. The parties stipulated that not only was appellant required to register pursuant to section 290, but he specifically knew of this requirement. This evidence amply supports the finding that appellant had actual knowledge of his duty to register.
2. Vagueness of Section 290
Appellant contends that section 290 in effect at the time of his offense was unconstitutionally vague. Specifically, appellant contends that the use of the word "location" is void for vagueness as it applies to him. We disagree.
A law that is void for vagueness "fails to provide adequate notice to those who must observe its strictures" and "`impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application." (People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1116, quoting Grayned v. City of Rockford (1972) 408 U.S. 104, 108-109.) "[V]agueness challenges to statutes which do not involve First Amendment freedoms must be examined in the light of the facts of the case at hand." (United States v. Mazurie (1975) 419 U.S. 544, 550.) And if the challenged statute clearly applies to a criminal defendants conduct, the defendant may not challenge it on grounds of vagueness in other contexts. (Parker v. Levy (1974) 417 U.S. 733, 756.)
Appellant was prosecuted under section 290, subdivision (g)(2), which at the time provided, in relevant part: "... any person who is required to register under this section ... who willfully violates any requirement of this section ... is guilty of a felony ...." In 2004, former section 290, subdivision (a)(1)(A) stated: "Every person [who has been convicted of a specified sex offense], for the rest of his or her life while residing in, or, if he or she has no residence, while located within California, ... shall be required to register with the chief of police of the city in which he or she is residing, or if he or she has no residence, is located ... within five working days of coming into, or changing his or her residence or location within, any city ... in which he or she temporarily resides, or, if he or she has no residence, is located."
In People v. North, the defendant successfully challenged the registration requirement as applied to him. (People v. North, supra, 112 Cal.App.4th at p. 624.) In that case, the defendant checked out of a motel at which he was registered and became transient and homeless. (Id. at pp. 625-626.) He failed to notify authorities of his whereabouts. (Id. at p. 626.) The defendant testified that he sometimes slept on the side of freeways, sometimes at bus stations, and sometimes he stayed with a friend, all the while going back and forth between two cities. (Ibid.) The court in North reversed the defendants conviction for failing to register because the term "location," as used in former section 290, subdivision (a)(1)(A), failed to provide sufficient specificity as to when a transient sex offender was required to register particular places within a particular jurisdiction. (North, at pp. 634, 636.)
But the North court found no problem with the provisions of former section 290, which used the term "located" "as a basis for identifying the jurisdictions in which registration is required ...." (People v. North, supra, 112 Cal.App.4th at p. 634.) Using "located" for that purpose was a "reasonably certain registration requirement," since it was "possible to ascertain when a transient offender is within a jurisdiction, though it cannot be determined which locations within the jurisdiction must be separately identified, or when movement within the jurisdiction constitutes a change of location." (Ibid. )
In People v. Annin, the court distinguished North on factual grounds. (People v. Annin, supra, 117 Cal.App.4th at pp. 608-609.) In Annin, the defendant failed to register when he moved from a California motel to Oregon, where he stayed with family friends for 14 months. (Id. at pp. 601, 608.) The court found no reason to reverse the defendants conviction because the case did not "present any issue concerning the meaning of the terms `location or `is located." (Id. at p. 609.)
Here, also, the facts present no issue concerning the meaning of the term "location." We reject appellants contention that the statute is void.
3. General Intent Instruction
Appellant contends that the trial court erred in giving CALJIC No. 3.30 because the instruction failed to adequately instruct the jury on the knowledge element of the offense. We disagree.
CALJIC No. 3.30, as modified and given to the jury, states:
"In the crime charged in Count 1, there must exist a union or joint operation of act or conduct and general criminal intent. When a person intentionally does that which the law declares to be a crime, he is acting with general criminal intent. Furthermore, general criminal intent as used in this case means that the defendant had actual knowledge of his duty to register."
The trial court also gave two other instructions germane to our analysis. It gave a special instruction on the elements of section 290, which read in pertinent part:
"In order to prove this crime, each of the following elements must be proved: [Appellant] is required to register under the provisions of Penal Code Section 290, and [appellant] had actual knowledge of his duty to register under the provisions of that section and, three, [appellant] willfully failed to register with the chief of police ... in the city either in which he was residing or which he was located within five working days of either coming into the city or changing his residence ...."
And the court read a modified version of CALJIC No. 1.20 to the jury:
"The word `willfully when applied to the intent with which an act is done or [omitted] means with the purpose or willingness to commit the act or to make the [omission] in question. Further, as used in these instructions and applied to this case, the term willfully means that [appellant] had actual knowledge of his duty to register."
Appellant acknowledges the giving of these instructions, but claims they were inadequate for three reasons. First, he contends the giving of CALJIC No. 3.30 is illogical because the crime consists of an act of omission. It is, appellant notes, not what a person does but what he does not do that creates a violation. But appellant fails to take into consideration that the court gave the modified version of CALJIC No. 1.20, which stated specifically: "The word `willfully when applied to the intent with which an act is done or omitted means with a purpose or willingness to commit the act or to make the omission in question." (Italics added.) Thus, this contention is unavailing.
Second, appellant relies on People v. Barker (2004) 34 Cal.4th 345 for the proposition that the giving of CALJIC No. 3.30 in a section 290 case was error. The Barker court reasoned that a jury might conclude from CALJIC No. 3.30 "that a defendant may be guilty of violating section 290 even if unaware of his or her obligation to register." (Barker, at pp. 360-361.) But CALJIC No. 3.30 as given in Barker differs from that given here. In Barker, the instruction was:
"`General criminal intent does not require an intent to violate the law. When a person intentionally does that which the law declares to be a crime, he is acting with general criminal intent, even though he may not know that his act or conduct is unlawful." (People v. Barker, supra, at p. 360, italics added.)
In contrast, the trial court here removed the language (italicized above) that the Barker court found erroneous.
In any event, the court in Barker found the instructional error harmless beyond a reasonable doubt as the record reflected that the defendant was aware of his registration obligation. (People v. Barker, supra, 34 Cal.4th at p. 361.) Here, similarly, appellant stipulated that he knew he was required to register. Therefore, even assuming error occurred, it was not prejudicial.
In a last effort to show instructional error, appellant contends that, although he knew of the registration requirement and stipulated to such, "his failure to register appear[s] to have been a technical violation for which his omission appears not to be a willful violation, but rather a misunderstanding about his duty to register in the situation presented by his transient nature." We are unpersuaded. The instructions stated that "general criminal intent as used in this case means that the defendant had actual knowledge of his duty to register." This language was sufficient to convey to the jury that, to convict, it must find that appellant knew of his duty to register in his particular factual circumstances. (People v. Garcia, supra, 25 Cal.4th at p. 754 ["In the registration act context, the jury must find actual knowledge of the acts legal requirements"].) Appellant stipulated that he did know of the duty to register, and he raised no issue with respect to the particulars of what he did and did not know. He requested no amplification of the instructions. His attempt to raise a new factual issue—the extent of the knowledge to which he stipulated at trial—can be to no avail.
4. Prior Strike Allegations
Appellant contends that the trial court abused its discretion in refusing to strike his prior convictions. We disagree.
Section 1385, subdivision (a) provides, in relevant part, "The judge or magistrate may, ... in furtherance of justice, order an action to be dismissed." In People v. Superior Court (Romero) (1996) 13 Cal.4th 497, the California Supreme Court concluded that "section 1385[,] [subdivision] (a) ... permit[s] a court acting on its own motion to strike prior felony conviction allegations in cases brought under the Three Strikes law." (Id. at pp. 529-530.)
In determining whether to strike a prior conviction "in furtherance of justice," a court must consider "`"both ... the constitutional rights of the defendant, and the interests of society represented by the People ...."" (People v. Superior Court (Romero), supra, 13 Cal.4th at p. 530.) As further clarified in People v. Williams (1998) 17 Cal.4th 148:
"[I]n ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law, on its own motion, `in furtherance of justice pursuant to ... section 1385[, subdivision] (a), or in reviewing such a ruling, the court in question 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 schemes 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." (Id. at p. 161.)
Appellant asserts that the trial court abused its discretion because it did not take into consideration all of the facts surrounding the instant offense, including his history of mental illness and the alleged circumstance that his current offense was questionable in light of the uncertainty of registration requirements for transients. He also contends that the trial court abused its discretion in considering his strike offenses as "a very, very violent sexual assault," a description with which he takes issue.
While the reporters transcript of October 26, 2005, was prepared using only capital letters, quoted excerpts will not maintain that format.
We review a ruling upon a motion to strike a prior felony conviction under a deferential abuse of discretion standard. (People v. Williams, supra, 17 Cal.4th at p. 162.) Appellant bears the burden of establishing that the trial courts decision was unreasonable or arbitrary. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978 [presumption that trial court acts to achieve lawful sentencing objectives].) We do not substitute our judgment for that of the trial court. (People v. Myers (1999) 69 Cal.App.4th 305, 310.) "It is not enough to show that reasonable people might disagree about whether to strike one or more of [the defendants] prior convictions." (Ibid.) "[A] trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (People v. Carmony (2004) 33 Cal.4th 367, 377.)
We find no indication in the record that the trial court did not properly weigh the various factors. Prior to sentencing, defense counsel filed a written motion asking the court to dismiss appellants strike priors pursuant to section 1385. Counsel argued that the prior strike offenses occurred over 14 years earlier, that the nature and circumstance of the present felony did not involve an act of violence and that, if the court struck two of appellants strikes, he would still receive a lengthy sentence. Counsel argued that appellant had a borderline IQ, that he had a memory disorder, and that he had remained clean of "any significant trouble" since his release on parole in 2002. Attached to the motion was a psychological evaluation of appellant.
At the hearing on the motion, defense counsel asked the trial court to exercise its discretion and dismiss appellants prior strike offenses. Counsel argued that appellants prior strikes arose out of "one set of circumstances on one evening," and that they occurred during a "brief aberrant period in his life." Counsel also argued that appellant had suffered a physical injury that resulted in a psychological memory impairment or that he had "somewhat diminished capacity with respect to memory."
The prosecutor, in asking that the trial court deny the motion, argued that two of appellants three prior strikes were violent. According to the prosecutor, appellant was convicted of burglary when he entered a womans house to commit two separate violent sex crimes. The prosecutor also argued that appellant had not had a five-year period (the time period used by his office to make charging decisions) in which he stayed "out of trouble."
Following argument by counsel, the trial court noted appellant had not been "crime free" because, although appellants prior strike offenses occurred in 1990, appellant was not released from prison until 2000, and he then violated parole three times and was returned to prison each time. As a result, the court noted, appellant had not been crime free for even a year. The trial court also described the prior strikes as having arisen from "a very, very violent sexual assault on a 23 year old whose daughter was put in a closet, apparently, so the sexual assault could occur." The court noted that appellant had had a failure to appear at sentencing, which "really doesnt sway me a whole lot one way or the other," and arrests or warrants, which it "certainly [was] not going to use ... against him." The court also stated that appellant was "justly convicted" and that the verdict was supported by the evidence "despite his statements." The court stated that it recognized its discretion to strike the prior convictions, but that it was not going to do so, and denied the motion.
While appellant is correct that the circumstances of his current offense, his prior convictions, and particulars of his mental health are proper factors to consider (see, e.g., People v. Cluff (2001) 87 Cal.App.4th 991, 1001-1002; People v. Gaston (1999) 74 Cal.App.4th 310, 320-321), the record does not support his claim that the trial court failed to give these factors proper consideration. The factors were all before the court through the probation officers report, the motions filed by counsel, and argument of counsel. We presume they were considered since the record does not affirmatively reflect otherwise. (People v. Gillispie (1997) 60 Cal.App.4th 429, 434.)
As to the facts of the underlying "very, very violent" sexual assault, the probation report in the present case describes the prior crimes as follows: "def[endant] entered 23-y[ea]r-old vic[tim]s home [and] roughly put her daughter in closet. He physically moved vic[tim] to kitchen area, leaned her upper torso on table then inserted his finger in her anus after rubbing his penis against her buttocks. He then forced her to orally copulate him[.]" Appellant was convicted of three felonies, to wit, forcible oral copulation (§ 288a, subd. (c)), penetration by a foreign object (§ 289, subd. (a)), and first degree burglary (§ 460, subd. (a)). We find no abuse of discretion in the trial courts description of these offenses as a very violent sexual assault.
As to "the uncertainty of registration requirements" that appellant contends the trial court should have considered, this appears again to be an attempt to limit the meaning of his stipulation at trial to knowledge of his registration requirement. The record contains no evidentiary support for the proposition that appellant was unaware of the particulars of the requirement.
Appellant has not shown that the trial courts refusal to strike his prior strike convictions was "so irrational or arbitrary that no reasonable person could agree with it." (People v. Carmony, supra, 33 Cal.4th at p. 377.) We, therefore, are required to and do affirm that denial.
5. Cruel and/or Unusual Punishment
Finally, appellant contends that his 25-year-to-life sentence for failing to register violates the federal and state constitutional bans on cruel and/or unusual punishment. (U.S. Const., 8th Amend.; Cal. Const., art. I, § 17.) We disagree.
A punishment is cruel and unusual under the Eighth Amendment if it is "grossly out of proportion to the severity of the crime." (Gregg v. Georgia (1976) 428 U.S. 153, 173; Ewing v. California (2003) 538 U.S. 11, 21; Lockyer v. Andrade (2003) 538 U.S. 63, 72.) Under the California Constitution, a punishment is excessive 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.) Thus, the federal Constitution "affords no greater protection than the state Constitution." (People v. Martinez (1999) 71 Cal.App.4th 1502, 1510.)
Because a sentence that is constitutional under the California criteria for cruel or unusual punishment is also constitutional under the Eighth Amendment, we evaluate appellants claim that his sentence constitutes cruel and/or unusual punishment under both California and federal authority. Our Supreme Court established a three-prong test for cruel and unusual punishment in In re Lynch, supra, 8 Cal.3d 410. Courts should (1) consider "the nature of the offense and/or the offender," (2) compare the punishment to other punishments imposed in the same jurisdiction for more serious offenses, and (3) compare the punishment to other punishments imposed for the same offense in other jurisdictions. (Id. at pp. 425-427.) We address each prong in turn.
A. Nature of the Offense and/or Offender
"Regarding the offense, we should evaluate `the totality of the circumstances surrounding the commission of the offense in the case at bar, including such factors as its motive, the way it was committed, the extent of the defendants involvement, and the consequences of his acts." (People v. Martinez, supra, 71 Cal.App.4th at p. 1510, quoting People v. Dillon (1983) 34 Cal.3d 441, 479.)
Appellant argues that his current offense of failing to register "reveals no tendency to commit additional offenses that pose a threat to public safety." While we recognize that a registered sex offenders failure to notify a law enforcement agency of a change of residence is not a violent offense, we emphasize that the purpose of the registration and notification requirements imposed under section 290 is to aid police surveillance of certain sex offenders whom the Legislature has deemed to pose "`a continuing threat to society [citation] and require constant vigilance." (Wright v. Superior Court (1997) 15 Cal.4th 521, 527.) Obviously, this purpose is thwarted by a registrants willful failure to comply with the registration and notification requirements of section 290.
"We also focus on the particular offenders `individual culpability as shown by such factors as his age, prior criminality, personal characteristics, and state of mind." (People v. Martinez, supra, 71 Cal.App.4th at p. 1510, quoting People v. Dillon, supra, 34 Cal.3d at p. 479.) Appellants view is that his prior strike convictions were committed 14 years earlier, and he has not committed a serious or violent offense since then. According to appellant, his three strike offenses "are remote from and bear no relation to the current offense ...."
Having reviewed appellants criminal history, we do not find the factors of prior criminality and state of mind to weigh in his favor. According to the probation report, appellant had a few minor run-ins with the law prior to 1990. His three prior strike convictions arose from a 1990 incident in which, as noted previously, he entered the home of a 23-year-old woman, roughly put her daughter in a closet, physically moved the woman to the kitchen area, leaned her against the kitchen table, rubbed his penis against her buttocks, inserted his finger in her anus, and then forced her to orally copulate him.
In addition, the probation report reflects that appellant was sentenced to prison on the above mentioned convictions in September 1991. He was paroled in January of 2000 and violated parole a year later. He was paroled in February of 2001 and violated parole five months later. He was paroled in June of 2002 and violated parole four months later. He was paroled in April of 2003 and his current offense took place in June of 2004. In other words, appellant was out of prison less than three out of 13 years.
Appellants criminal record shows that he is a repeat offender. This fact is crucial to our determination that appellants sentence of 25 years to life does not constitute cruel or unusual punishment. The United States Supreme Court has stated,
"When the California Legislature enacted the three strikes law, it 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.... Recidivism has long been recognized as a legitimate basis for increased punishment." (Ewing v. California, supra, 538 U.S. at p. 25.)
In Ewing, the United States Supreme Court ruled that a three strikes sentence of 25 years to life for the offense of stealing golf clubs was not cruel and unusual, finding that "Ewings sentence is justified by the States public-safety interest in incapacitating and deterring recidivist felons, and amply supported by his own long, serious criminal record." (Ewing v. California, supra, 538 U.S. at pp. 29-30, fn. omitted.)
Appellant likens his case to People v. Carmony (2005) 127 Cal.App.4th 1066 in which the court found that a 25-year-to-life sentence for failure to register constituted cruel and unusual punishment. The facts in Carmony were that the defendant had registered one month before his birthday but failed to re-register within five days of his birthday with the same information. His parole agent knew his registration information had not changed in that one-month period and arrested the defendant at his registered address. (Id. at p. 1071.) The court in Carmony found that
"[b]ecause a 25-year recidivist sentence imposed solely for failure to provide duplicative registration information is grossly disproportionate to the offense, shocks the conscience of the court and offends notions of human dignity, it constitutes cruel and unusual punishment under both the state and federal Constitutions." (Id. at p. 1073.)
Appellants situation is different. The jury here found that appellant failed to register in Ridgecrest after residing or being located there for five days. We know nothing more than this about appellants registration history. Unlike the defendant in Carmony, appellants actions do demonstrate disregard for the registration requirement, thereby defeating the public safety purpose for the requirement, because he was not readily available for police surveillance or questioning. (People v. Carmony, supra, 127 Cal.App.4th at p. 1078.) Although both appellant and Carmony violated the same statute, appellants crime is not the harmless offense found by the Carmony court.
B. Comparison of Other California Punishments for More Serious Offenses
Appellant, again relying on Carmony, argues that his punishment is unconstitutional because it is more severe than the punishment imposed for a host of heinous offenses, such as second degree murder, punishable by 15 years to life (§§ 189, 190, subd. (a)) or rape, punishable by three, six, or eight years (§§ 261, 264, subd. (a)).
For purposes of determining the proportionality of appellants sentence, we do not compare his sentence to the sentence imposed on a first-time offender. "[I]t is proper to punish a repeat offender more severely than a first-time offender. The proper comparison would be to a recidivist killer, whose punishment would be the same as defendants." (People v. Martinez, supra, 71 Cal.App.4th at p. 1512.) Appellants 25-year-to-life sentence for a nonviolent felony committed after three prior serious felonies is the same sentence that has been imposed in similar cases and upheld by the courts. (See, e.g., People v. Martinez, supra, at p. 1517 [methamphetamine possession]; Ewing v. California, supra, 538 U.S. at pp. 30-31 [golf club theft]; Lockyer v. Andrade, supra, 538 U.S. at p. 77 [videotape theft].) Thus, this factor does not support appellants claim that his sentence is unconstitutionally disproportional.
C. Comparison of Other States Punishment for the Same Offense
Appellants argument on this factor again relies solely on Carmony in which the court found in its interjurisdictional analysis that the 25-year-to-life sentence was disproportionate to the gravity of the offense.
Appellants brief argument has no persuasive force. The recidivist statutes of other states have been compared to Californias three strikes law, and it has been determined that Californias punishment scheme for repeat offenders is "among the most extreme in the nation." (People v. Martinez, supra, 71 Cal.App.4th at p. 1516.) Nonetheless, the interjurisdictional review does not
"compel the conclusion that it is unconstitutionally cruel or unusual. This ... 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" (Ibid., quoting People v. Wingo (1975) 14 Cal.3d 169, 179.)
Moreover, the United States Supreme Court has responded to criticism of the severity of Californias three strikes scheme by stating,
"It is enough that the State of California has a reasonable basis for believing that dramatically enhanced sentences for habitual felons `advance[s] the goals of [its] criminal justice system in any substantial way." (Ewing v. California, supra, 538 U.S. at p. 28, quoting Solem v. Helm (1983) 463 U.S. 277, 297, fn. 22.)
This court is not free to substitute its judgment for that of the Legislature on the wisdom of life sentences for nonviolent, nonserious, or even passive offenses committed by those with at least two prior strikes. (People v. Carmony, supra, 127 Cal.App.4th at p. 1076 [the "`primacy of the legislature" is one of the guiding principles of Eighth Amendment review].) Neither does any antipathy we may feel for the imposition of a life sentence here allow us to ignore precedent. We must reject appellants assertion that his sentence violates constitutional proscriptions against cruel and unusual punishment.
DISPOSITION
The judgment is affirmed.
We concur:
CORNELL, Acting P.J.
HILL, J.