Opinion
NOT TO BE PUBLISHED
APPEAL from judgments of the Superior Court of Los Angeles County No. KA078161. Tia Fisher, Judge.
Jean Ballantine, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Daniel C. Chang and Dana M. Ali, Deputy Attorneys General, for Plaintiff and Respondent.
DOI TODD, J.
A jury convicted John Spoon Anderson (appellant) of one count of failure to register as a sex offender under former Penal Code section 290, subdivision (a)(1)(A) (count 1); two counts of failure to update registration annually under former section 290, subdivision (a)(1)(D) (counts 2, 4); and failure to file a change of address under former section 290, subdivision (f)(1)(A) (count 3). The trial court found true the allegation that appellant had suffered 12 prior serious or violent felony convictions within the meaning of section 667, subdivisions (b) through (i) and section 1170.12, subdivisions (a) through (d) (the “Three Strikes” law).
All further references to statutes are to the Penal Code unless stated otherwise.
Appellant was charged with the 2006 version of section 290. The pertinent language of section 290 remains substantively the same as in the 2006 version, but the statute was subsequently renumbered. We cite to the 2006 version, as charged in the information, in this opinion.
After denying appellant’s Romero motion, the trial court sentenced appellant to a total term of 75 years to life, which consisted of consecutive terms of 25 years to life on counts 1, 2, and 4 pursuant to the Three Strikes law. In count 3, the trial court imposed a concurrent term of 25 years to life.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
Appellant appeals on the grounds that: (1) there was insufficient evidence to support his conviction in count 1; (2) there was insufficient evidence to support the convictions in counts 2 and 4; (3) section 654 precludes multiple punishment for failure to register a new address and failure to notify the last registering agency of the new address; (4) the trial court failed to exercise its discretion and abused its discretion when it failed to weigh all relevant factors in deciding the Romero motion; and (5) his sentence of 75 years to life for failing to register as a sex offender in 2006 and 2007 constitutes cruel and unusual punishment under the federal and state Constitutions.
FACTS
Prosecution Evidence
Before trial, appellant admitted he had suffered a prior conviction that required him to register as a sex offender. Gregory Lee Emrick (Emrick) was assigned to the Records Bureau for the City of Pomona in March 2005. One of his duties was to attend to persons who were required to register as sex offenders. He identified the form he used to register appellant on March 15, 2005, with the address appellant provided, i.e., 475 East Foothill Boulevard, No. 205, in Pomona. Appellant gave his date of birth as March 21, 1956.
Appellant checked all the boxes on the form, indicating that he understood the following requirements: to register as a sex offender for the rest of his life; to register as a sex offender with the law enforcement agency having jurisdiction over his residence within five working days whenever he changed his address; and to annually update his registration within five working days of his birthday, beginning with the first birthday following registration or change of address. He also indicated that he understood that, even if he were a transient, he must register within five working days of his birthday with the law enforcement agency having jurisdiction over his residence or where he was currently registered as a transient.
Emrick identified the photograph he took of appellant when he registered. Emrick’s practice was to place the form and photograph in the registrant’s file, along with a thumbprint. The parties stipulated that the thumbprint belonged to appellant.
Emrick identified other forms completed by appellant in March 2001, March 2002, March 2003, and March 2004. Appellant never listed himself as a transient, and always listed the same address. Emrick said he never explained any of the items to be checked to the registrants unless a registrant asked a question. He just told them to read it and initial the items.
Gabriela Cortez (Cortez) began working as the resident apartment manager at 475 East Foothill Boulevard in Pomona on April 7, 2006. She knew the residents of apartment No. 205, and appellant was not one of them. Cortez had never seen appellant at the complex. She had no knowledge of whether he lived there before April 2006.
Since March 2006, Annette Flores (Flores) has been tasked with registering sex offenders and keeping the registration records for the Pomona Police Department. She was trained to enter registration data in the Violent Criminal Information Network (VCIN) database maintained by the California Department of Justice (DOJ). This information is also used to update the Megan’s Web site, which is maintained by DOJ. With respect to offenders who no longer have a residence, Flores explains to them that they have to register as a transient and come in to the department every 30 days.
Flores reviewed the copies of appellant’s registration records and the VCIN system with respect to appellant, and it showed that his last registration was in 2003, although the file showed the last registration form with his name was completed in 2005. Flores explained that the system would show that appellant was in compliance but would not show the actual registration if the address did not change from the one he had been registering previously. As far as Flores knew, appellant had not returned to Pomona to register since 2005.
A copy of a person’s registration is mailed to that person’s address with a “Do Not Forward” message on it. The person is also handed a copy. All of appellant’s registration forms from prior years had a notation indicating they were mailed to appellant.
Defense Evidence
Appellant presented no evidence.
DISCUSSION
I. Sufficiency of the Evidence in Count 1
A. Appellant’s Argument
Appellant contends the prosecution presented no proof of any kind to show that appellant had, within Los Angeles County, an address that he was required to register on or about May 1, 2006. There was no evidence that appellant was seen in, arrested in, worked in, stayed in, or received mail in Los Angeles County at or around this date. Furthermore, the date selected by the prosecutor was random and without a factual or evidentiary basis.
B. Relevant Authority
When determining whether the evidence was sufficient to sustain a criminal conviction, we review the entire record in the light most favorable to the judgment to determine “‘whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citation.]” (People v. Hillhouse (2002) 27 Cal.4th 469, 496; People v. Halvorsen (2007) 42 Cal.4th 379, 419.) We presume in support of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053; People v. Wader (1993) 5 Cal.4th 610, 640.) Reversal is not warranted unless it appears “‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’ [Citation.]” (People v. Bolin (1998) 18 Cal.4th 297, 331.)
C. Proceedings Below
Appellant was charged in count 1 with a violation of the 1996 version of section 290, subdivision (a)(1)(A), which required him to register his new address. The trial court instructed the jury that the elements of this offense were: “One, the defendant resided in Los Angeles County; Two, the defendant actually knew he had a duty to register as a sex offender under Penal Code section 290 within five working days of coming into or changing his residence within any city or unincorporated area in Los Angeles County; Three, the defendant willfully failed to register as a sex offender with the police chief of any city in Los Angeles County within five working days of coming into or changing his residence within that city or willfully failed to register as a sex offender with the sheriff of Los Angeles County if he is residing in an unincorporated area or in a city in Los Angeles County that has no police department within five working days of coming into or changing residence within that city or unincorporated area of Los Angeles County.” (Italics added.) (CALCRIM No. 1170.)
In 2006, section 290, subdivision (a)(1)(A) provided: “Every person described in paragraph (2), for the rest of his or her life while residing in California, or while attending school or working in California, as described in subparagraph (G), shall be required to register with the chief of police of the city in which he or she is residing, or the sheriff of the county if he or she is residing in an unincorporated area or city that has no police department, and, additionally, with the chief of police of a campus of the University of California, the California State University, or community college if he or she is residing upon the campus or in any of its facilities, within five working days of coming into, or changing his or her residence within, any city, county, or city and county, or campus in which he or she temporarily resides.” (Stats. 2005, chs. 704, § 1, 722, § 3.5.)
The jury was instructed that “as a matter of law... defendant is required to register as a sex offender for life because he has been convicted of a qualifying sex offense.”
Appellant filed a motion for a new trial in which he argued that element number one was not proved, since the prosecution failed to present any evidence on this element. The prosecution responded that it had shown that appellant had resided continuously in Los Angeles County and had registered there for at least the past 12 years. Given that appellant’s home had always been Los Angeles County, the People argued, circumstantial evidence showed appellant continued to reside in Los Angeles County, and there was no evidence presented that he was residing anywhere else. The trial court denied appellant’s motion, stating that, given the argument on this point and the jury instructions, the jury was satisfied that the People had proven circumstantially that appellant continued to reside in Los Angeles County.
D. Count 1 Must Be Reversed
At the outset, with respect to appellant’s claim that the date in count 1 was arbitrary, we cannot agree. The prosecutor established through Cortez, the apartment manager, that appellant did not live at 475 East Foothill Boulevard on April 7, 2006, or thereafter. April 7, 2006 was the day the apartment manager began working at that address. The prosecutor chose the first day of the next complete month as the date by which appellant had failed to reregister. Since the prosecutor could not know the exact date prior to April 7, 2006, that appellant left the East Foothill Boulevard apartment, we perceive nothing arbitrary in choosing May 1, 2006, as the date on which appellant was accused of being noncompliant in registering his new address.
As for appellant’s principal contention, we agree with appellant that no evidence was presented from which the jury could reasonably infer that appellant was in Los Angeles County on May 1, 2006. In his reply brief, appellant relies on People v. Wallace (2009) 176 Cal.App.4th 1088 (Wallace), which was published after appellant’s opening brief, as dispositive. Although Wallace differs from appellant’s case in several respects, we agree with its reasoning and conclude that there was insufficient evidence to support the verdict in count 1.
In Wallace, the defendant was charged with the same offenses as appellant, although with one less count of failing to update his registration within five days of his birthday. (Wallace, supra, 176 Cal.App.4th at p. 1091.) The version of former section 290, subdivision (a)(1)(A) with which Wallace was charged was worded identically to the version with which appellant was charged. (See Wallace, supra, at p. 1106, fn. 10.) Wallace first registered with the police in Pittsburg, located in Contra Costa County, in 2003. (Id. at p. 1092.) Like appellant, he complied with his registration requirements for several years. After registering a new address with the Pittsburg police on January 11, 2006, he never registered again anywhere else in the State of California and, like appellant, he dropped out of sight. (Id. at p. 1094.) In April 2007, a police officer inspected Wallace’s last registered address and found the premises vacant. An arrest warrant for Wallace was issued, but, as in appellant’s case, there was no mention of where he was arrested. (Ibid.) Wallace argued with respect to his conviction for violating former section 290, subdivision (a)(1)(A) that the evidence was insufficient because the prosecution failed to prove that in April 2007 he had a new address in Contra Costa County or in any other city or county within the State of California. (Wallace, supra, at p. 1101.)
The Wallace court first agreed with the prosecution that it had no burden to prove Wallace’s exact new location, and it also “had no burden to prove appellant moved to a location within Contra Costa County to establish a violation of former section 290, subdivision (a)(1)(A). Even if [Wallace] moved out of Contra Costa County, prosecutors were entitled to try a violation of this provision in Contra Costa County based upon appellant’s prior registration as a sex offender in Contra Costa County.” (Wallace, supra, 176 Cal.App.4th at pp. 1101–1102.) For this proposition, the Wallace court cited People v. Britt (2004) 32 Cal.4th 944 (Britt), in which the court ruled that a defendant who violated former section 290, subdivision (a)(1)(A) by moving from Sacramento County to El Dorado County and failing to notify law enforcement in either county could be prosecuted in either county for that offense, although he could be punished only once. (Britt, supra, at pp. 951, 954–955.) This was because the defendant’s “single move necessarily involved preparatory acts in both counties. Thus, either county would be a proper venue in which to try both crimes.” (Id. at p. 955.)
The Wallace court nevertheless reversed Wallace’s conviction for violating former section 290, subdivision (a)(1)(A) based on the language in section 290 that makes its provisions applicable to sex offenders “while residing in California.” (§ 290, subd. (a)(1)(A)); Wallace, supra, 176 Cal.App.4th at p. 1104.) It agreed with the defendant that “if he left California after vacating his last registered address in Contra Costa County, his failure to register a new address or location anywhere in California within five working days would not amount to a violation of this provision.” (Wallace, supra, at p. 1103.) Section 290, subdivision (a)(1)(A) provided on its face that it applied only to sex offenders residing in California communities. (Wallace, supra, at pp. 1102–1103.)
The Wallace prosecution acknowledged there was no evidence presented regarding Wallace’s whereabouts after he left his last registered address. The prosecution suggested, as in the instant case, that the jury could have inferred he remained in California based on his having established five addresses in Contra Costa County between 2003 and 2006. (Wallace, supra, 176 Cal.App.4th at p. 1103.) Also as in the instant case, the prosecution pointed out that appellant presented no evidence in his own defense to establish he moved out of the county or California and argued that requiring the prosecution to prove Wallace remained would allow him to immunize himself from the statutory requirements. (Ibid.)
In closing argument in the instant case, the prosecutor stated, “We know for years he had been residing in Pomona and Los Angeles County and that he had been registering there, and again, we know that from the forms.” With respect to count 2, the prosecutor argued, “So in count 2, the People have to prove that he resided in Los Angeles County. We talked about that. He lived in Pomona for years. This is his area.” The prosecutor continued, “We know again that the defendant lived in the City of Pomona at least for those seven years. Seven straight years he came in to the City of Pomona living at the same address. He had a place to live, he had a residence, he had an address, and now counsel wants you to believe that suddenly he had no address, that he had left L.A. County, the place where apparently he enjoyed being—I mean, when you live—a place where you live, you have ties to it. He had ties here. He had been here for seven years, and now he’s suddenly going to maybe—Mr. Perez argued maybe go to Orange County, maybe San Bernardino County, but, Ladies and Gentlemen, the People have to prove the elements beyond a reasonable doubt. The instruction tells you it’s not beyond all doubt, is not beyond a possible or imaginary doubt. Well, possibly he went to Orange County. Possibly he went to San Bernardino County is not a reasonable doubt, does not create a reasonable doubt.”
The prosecutor in the instant case argued, “There is nothing to say, ‘Yeah, he used to live in San Francisco. Yes, he had moved to San Bernardino during that time.’ There is nothing. We know he was in Los Angeles County.” And, “This is his home and this is his area, and we have no evidence whatsoever that he lived anywhere else outside of even Pomona let alone outside of Los Angeles County.” “Los Angeles County is where he lives and there is no evidence that he lived anywhere else. We haven’t heard anything.”
The Wallace court could not “agree with the prosecution that the lack of any evidence regarding appellant’s whereabouts in or about April 2007, even considered in light of [Wallace’s] prior registration history in California, was sufficient to permit a reasonable inference that appellant remained in California during that time period, which the statute clearly requires.” (Wallace, supra, 176 Cal.App.4th at p. 1103.) The court also declined to shift the burden of proof to the defendant to prove beyond a reasonable doubt that he was residing outside of California during the relevant time. (Ibid.)
Wallace differs from the instant case in that defendant Wallace’s jury was not instructed that it had to find he was residing in California (or Contra Costa County) at the time of the charged offense. (Wallace, supra, 176 Cal.App.4th at p. 1104.) In addition to the lack of evidence presented on the defendant’s whereabouts, the Wallace court considered the omission of this element in the jury instruction as one of the factors for reversing the conviction and finding the error was not harmless. (Ibid.) The court stated it could not be sure that a properly instructed jury would have found, or could have properly found, appellant was residing in California at the relevant time. (Ibid.)
We reach the same conclusion in this case. Due to the lack of any evidence of appellant’s whereabouts upon leaving Pomona, there was no substantial evidence showing that he resided in California, and hence, in Los Angeles, and that he was thus subject to the registration requirements. We also conclude that, although appellant’s jury was instructed that it had to find appellant was in Los Angeles, and, a fortiori, in California, it could not properly so find based on the lack of evidence of his location after he left his last address in Pomona.
People v. Balkin (2006) 145 Cal.App.4th 487 (Balkin) reinforces this conclusion. In that case, the defendant did not register as a sex offender at any time after he became subject to the requirement that he do so, including after his last release on parole on April 3, 2005. (Id. at p. 490.) There was no evidence in the record regarding the location from which the defendant was released. (Ibid.) He was arrested in Los Angeles on April 21, 2005, and he gave an address in that city as the location where he received mail. (Ibid.) However, “there was no evidence to establish when [the] defendant secured that address or moved into the city or county—it could have been one day prior to his arrest or more than five days.” (Id. at pp. 492–493.) Therefore, “[t]here was insufficient evidence that defendant had been present within the City or County of Los Angeles for five working days prior to his arrest on April 21, 2005.” (Id. at p. 493.) The court therefore reversed the defendant’s conviction for failing to register within five working days of entering a county. (Id. at p. 494.)
In contrast to the instant case, the Balkan prosecutor had evidence of a mailing address and the defendant’s presence in Los Angeles County. In the instant case, the jury was asked to infer that appellant was in Los Angeles County merely because he had lived in Pomona for several years before he stopped registering, an inference that is even less plausible than the one drawn in Balkin. Given the lack of substantial evidence here, we must reverse appellant’s conviction in count 1.
II. Evidence in Support of Counts 2 and 4
A. Appellant’s Argument
Appellant contends that the evidence in counts 2 and 4 was insufficient for the same reasons as the evidence in support of count 1.
B. Proceedings Below
In count 2, appellant was charged with failing to register within five working days of his birthday (his annual registration) in violation of former section 290, subdivision (a)(1)(D) on or about March 29, 2006. In count 4, appellant was charged with the same offense with a different date—March 30, 2007.
In 2006, section 290, subdivision (a)(1)(D) provided: “Beginning on his or her first birthday following registration or change of address, the person shall be required to register annually, within five working days of his or her birthday, to update his or her registration with the entities described in subparagraph (A). At the annual update, the person shall provide current information as required on the Department of Justice annual update form, including the information described in subparagraphs (A) to (C), inclusive, of paragraph (2) of subdivision (e).”
The trial court instructed the jury that, to find appellant guilty in counts 2 and 4, the People had to prove that “One, the defendant resided in Los Angeles County; Two, the defendant knew that he had a duty to register as a sex offender under Penal Code section 290 within five working days of his birthday, and Three, the defendant willfully failed to register as a sex offender with the police chief of any city in Los Angeles County in which he resides or willfully failed to register with the sheriff of Los Angeles County if he is residing in an unincorporated area of the county or in a city in Los Angeles County that has no police department within five working days of his birthday.” (Italics added.)
C. Counts 2 and 4 Must Be Reversed
The Wallace court also reversed Wallace’s conviction for failing to update within five days of his birthday, as charged under former section 290 subdivision (a)(1)(D). Applying much of the same reasoning as it had in reversing the count under section 290, subdivision (a)(1)(A), the court found that the California residency requirement also applied to that subsection. (Wallace, supra, 176 Cal.App.4th at pp. 1105–1107.) For the same reasons explained ante, and noting the same dissimilarities in instructing the jury in both instances, we conclude that appellant’s convictions in counts 2 and 4 must be reversed. Contrary to the prosecutor’s argument, the People did not have to prove a negative. Rather, it had to prove an affirmative, i.e., that appellant was, at a minimum, residing in California, either as a transient or a resident of a dwelling, at the times stated in the charges. Without the benefit of any evidence whatsoever that appellant continued to be in California, it was speculation to assume he was.
III. Section 654
In count 1, appellant was convicted of failing to register as a sex offender in violation of section 290, subdivision (a)(1)(A). In count 3, appellant was convicted of failing to notify the last registering agency of his change of address in violation of section 290, subdivision (f)(1)(A). Appellant contends that, assuming the prosecution proved counts 1 and 3 by substantial evidence, imposing concurrent sentences for these offenses constituted an illegal multiple punishment under section 654 and Britt, supra, 32 Cal.4th 944, 949.
In Wallace, the count charging the defendant with failing to notify the last registering agency that he had a new address was upheld, as it must be in the instant situation. (Wallace, supra, 176 Cal.App.4th at pp. 1095–1100.) Since count 3 in the instant case is the only one to remain, section 654 does not apply.
IV. Denial of Romero Motion
A. Appellant’s Argument
Appellant contends that the trial court abused its discretion in denying his Romero motion and acted contrary to law in focusing primarily on a single factor—his prior offenses—without real knowledge of their facts and circumstances. The trial court’s assessment of these offenses was erroneous and based on speculation and guesswork. The trial court also failed to consider the factors listed in the California Rules of Court in aggravation and mitigation. Finally, according to appellant, it seems the trial court was unaware it could strike the prior offenses as to some, but not all, of the current convictions. Appellant argues that the sentence must be vacated and a new sentencing hearing must be held.
B. Relevant Authority
In Romero, the California Supreme Court held that a trial court may strike an allegation under the Three Strikes law that a defendant has previously been convicted of a serious or violent felony “‘in furtherance of justice’” under section 1385(a). (People v. Williams (1998) 17 Cal.4th 148, 158 (Williams).) “[A] trial court’s refusal or failure to dismiss or strike a prior conviction allegation under section 1385 is subject to review for abuse of discretion.” (People v. Carmony (2004) 33 Cal.4th 367, 375 (Carmony).)
“[A] trial court will only abuse its discretion in failing to strike a prior felony conviction allegation in limited circumstances. For example, an abuse of discretion occurs where the trial court was not ‘aware of its discretion’ to dismiss [citation], or where the court considered impermissible factors in declining to dismiss [citation]. Moreover, ‘the sentencing norms [established by the Three Strikes law may, as a matter of law,] produce[] an “arbitrary, capricious or patently absurd” result’ under the specific facts of a particular case. [Citation.]” (Carmony, supra, 33 Cal.4th at p. 378.)
“In reviewing for abuse of discretion, we are guided by two fundamental precepts. First, ‘“[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.”’ [Citation.] Second, a ‘“decision will not be reversed merely because reasonable people might disagree. ‘An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.’”’ [Citation.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.” (Carmony, supra, 33 Cal.4th at pp. 376–377.)
C. Proceedings Below
Appellant argued below that his strike convictions were remote, in that they are approximately 30 years old. Also, his current crimes were not violent, he had completed his sentence and parole, and he had committed no subsequent felonies.
The trial court reviewed appellant’s probation report and the section 969, subdivision (b) packet. It noted that, in addition to the 12 felonies from 1978, which were committed in Los Angeles and San Bernardino, there was a misdemeanor conviction for failure to register in 1995. Defense counsel explained that appellant was released from prison in 1995, and his probation officer admitted that he did not give appellant notice of his need to register. For that reason, the offense was reduced to a misdemeanor. The trial court noted that appellant had suffered misdemeanors for loitering in 2001 and 2004, and another for disorderly conduct in 2005. There were also other “contacts” in 2004 and 2005.
The court observed that appellant received concurrent sentences on section 654 grounds in some of the 1978 convictions. The court stated for the record that it had assessed the issue as to whether all of appellant’s priors were truly separate crimes as well as it was able, since it did not have the court files. The court said that, although all the convictions were from the same year, it was possible to know there were multiple incidents, since there were two rapes in Los Angeles, residential burglaries in Los Angeles, a rape in San Bernardino, and residential burglaries in San Bernardino. In addition, there was an uncharged prior of an escape from jail “in the midst of all these priors.” Moreover, in the plea proceeding regarding the Los Angeles rapes and residential burglaries, it was found that appellant had used a weapon and inflicted great bodily injury. There was also use of a firearm in the San Bernardino offenses.
The trial court observed that, after commission of the offenses and release from prison, appellant failed to register in 1995 and failed to do so again after 2005, when he was last heard from. The court stated, “And in terms of the intent of the Three Strikes law, assessing it and understanding that this court does have discretion to strike any one or all of them, looking at such issues as separate occasions, the same occasion, severity of the priors, whether since he got out of prison—because he’s had this period of time—has he been behaving himself, has he been a good citizen? No.” The trial court noted that appellant had shown himself to be a serial rapist, and that when he breaks into homes he hurts people and uses weapons, “[a]nd of all the people that the 290 registration section is intended to ensure that local police agencies can know where people are and find them when they need to find them, Mr. Anderson decided to absent himself from the jurisdiction of any local police agency because nobody knew where he went.”
In summing up, the trial court stated, “So I think that in the context of Mr. Anderson, it’s not really a legitimate evaluation to say, you know, it’s just a failure to register, it’s just a technical failure to go in and say, here I am. Of all the people that this statute is intended to protect in the context of his history—and I grant you there are people who are required to register as sex offenders who engaged in sexually assaultive conduct on the end of the scale that is, relatively speaking, and I’m quoting, ‘somewhat minimal.’ Because that section captures—is extraordinarily inclusive from 288a’s even misdemeanor people who are convicted of child annoying, misdemeanor people have to register for life. But then we’ve got folks like Mr. Anderson who’s committed these horrific offenses in the past and he’s on the serious end of the spectrum in terms of what 290 is all about. And that’s the big picture in terms of the Romero motion that I look at in terms of exercising my discretion. Would it be appropriate to strike any of them, evaluating all of the factors? Absolutely not. Absolutely not. Mr. Anderson epitomizes what the Three Strikes law is all about. He epitomizes that. The purpose of Three Strikes is to protect the public, to protect the public from people who have in the past been convicted of in some instances just two, but we’ve got 12, 12 prior felonies that fall within the rubric of this statute. And so in evaluating all of the issues that Romero sets forth and other cases that have since Romero given the court guidance, I deny your motion to strike any of the priors in this case.”
D. No Abuse of Discretion
We conclude the trial court did not abuse its discretion in refusing to strike any of appellant’s 12 prior convictions for serious or violent felonies. According to Williams, in order to “render Penal Code section 1385(a)’s concept of ‘furtherance of justice’ somewhat more determinate,” justice should be sought within the “interstices” of the particular sentencing scheme, because the scheme itself suggests its spirit. (Williams, supra, 17 Cal.4th at p. 160.) This search must be “informed by generally applicable sentencing principles” relating to matters such as the nature and circumstances of the current and prior felonies as well as defendant’s “background, character, and prospects,” which are intrinsic to the scheme. (Id. at pp. 160, 161.) The court cautioned that the standard for review of an exercise of discretion is “deferential,” although not “empty,” requiring the reviewing court to determine whether a ruling exceeds the bounds of reason under the law and relevant facts. (Id. at p. 162.)
In making its ruling, the trial court here amply demonstrated that it had followed the precepts of Romero and Williams in denying appellant’s motion, as it specifically indicated. First, appellant obviously misinterprets the trial court’s statement that appellant had “12 prior felonies that fall within the rubric of this statute.” According to appellant, this was error because not all of appellant’s prior offenses were offenses requiring registration. When read in context, it could not be clearer that the trial court was referring to the rubric of the Three Strikes law. Appellant next faults the trial court for focusing on a single factor, i.e. appellant’s prior offenses, without real knowledge of the facts and circumstances of the offenses. The record shows that the trial court’s statements as to the nature of appellant’s prior crimes were based on logical deductions of a trial court experienced in criminal sentencing rather than on speculation and guesswork, as appellant alleges. The trial court noted for the record it was relying on the probation report and the section 969b packet. These documents support the trial court’s conclusions. The trial court’s statements that rape is “‘horrific’” and on the “‘serious end of the spectrum’” of offenses requiring registration need no justification.
Appellant also criticizes the trial court for not employing the factors in mitigation listed in California Rules of Court. Appellant asserts that none of the factors in aggravation would apply, and appellant’s satisfactory performance on probation or parole would apply and should have been considered by the trial court. The trial court considered the probation report, which lists no circumstances in mitigation. Given the nature of appellant’s current offenses—failure to register for two consecutive years, his failure to register in 1995, his misdemeanor convictions in 2001 (of which there were four) and 2004 (of which there were two), and his 2005 contacts with police in Arcadia for disorderly conduct and loitering, we believe his performance on parole and/or probation has not been satisfactory.
The court clearly believed appellant was a danger to society, and as emphasized in People v. Garcia (1999) 20 Cal.4th 490, when deciding whether to strike prior convictions under Penal Code section 1385, the trial court must consider not only the constitutional rights of the defendant, but also the “‘“‘interests of society represented by the People....’”’” (People v. Garcia, supra, at pp. 497–498.) The court acted as a “‘reasonable judge’” in denying defendant’s motion under section 1385, subdivision (a). (Williams, supra, 17 Cal.4th at p. 159.)
In conclusion, we find no evidence that the court ran afoul of any of the guidelines for dismissing prior convictions discussed in Romero. Rather than evidence of “‘arbitrary determination, capricious disposition or whimsical thinking’” (People v. Giminez (1975) 14 Cal.3d 68, 72), the record reveals a sincere effort by the trial court to be guided by legal principles appropriate to the matter at hand as set out in Romero, supra, 13 Cal.4th 497, 530–531.
V. Cruel and Unusual Punishment
A. Appellant’s Argument
Appellant contends that the sentence imposed is grossly disproportionate to the current offenses. He asserts that violation of the registration requirements involves neither violence nor the threat of violence, is purely a regulatory offense, and it poses no direct or immediate danger to society. The past offenses do not themselves justify an enhanced sentence, and the focus must be on the seriousness of the current offenses. Therefore, under the circumstances of his case, his sentence constitutes cruel and unusual punishment in violation of the Eighth Amendment of the federal Constitution. Appellant also contends that his sentence is cruel or unusual under the California Constitution.
B. No Cruel and/or Unusual Punishment
Although appellant’s sentence will be substantially reduced, he would not be the first to argue that a sentence of 25 years to life for a failure to register constituted cruel and unusual punishment. (See People v. Carmony (2005) 127 Cal.App.4th 1066, 1074 (Carmony II); People v. Meeks (2004) 123 Cal.App.4th 695, 700 (Meeks).) In arguing that his sentence violates the Eighth Amendment, appellant first cites Solem v. Helm (1983) 463 U.S. 277 (Solem). In that case, a bare majority of the court held that a sentence of life without the possibility of parole was unconstitutionally disproportionate as applied to defendant on his seventh conviction of a nonviolent felony. (Id. at pp. 302–303.) Solem articulated a three-part test for determining whether a sentence was disproportionate to the crime committed and therefore in violation of the Eighth Amendment of the United States Constitution. The test focused on (1) “the gravity of the offense and the harshness of the penalty”; (2) “the sentences imposed on other criminals in the same jurisdiction”; and (3) “the sentences imposed for commission of the same crime in other jurisdictions.” (Solem, supra, at pp. 290–291.)
Solem’s test did not retain the support of a majority of the Supreme Court in Harmelin v. Michigan (1991) 501 U.S. 957 (Harmelin). Justice Scalia, joined by Chief Justice Rehnquist, concluded Solem was “simply wrong” and that the Eighth Amendment does not guarantee proportionality of sentences. (Harmelin, supra, at p. 965.) Justice Kennedy, joined by Justices O’Connor and Souter, concluded that the Eighth Amendment prohibits only sentences that are “‘grossly disproportionate’” to the crime, which corresponds to the first Solem factor. (Harmelin, supra, at p. 1001.) These three justices believed that consideration of the second and third Solem factors is necessary only in the rare case where the “threshold comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality.” (Harmelin, supra, at p. 1005; see also Ewing v. California (2003) 538 U.S. 11, 28–31 (Ewing) [employing only first step of Solem test in determining whether sentence is grossly disproportionate].) Even those justices in the Harmelin plurality who recognized a guarantee of proportionality review stressed that, outside the context of capital punishment, successful challenges to particular sentences are “‘“exceedingly rare”’” because of the “relative lack of objective standards concerning terms of imprisonment....” (Harmelin, supra, at p. 1001; see also Lockyer v. Andrade (2003) 538 U.S. 63, 77 (Andrade) [“The gross disproportionality principle reserves a constitutional violation for only the extraordinary case”].)
In Ewing, the high court confirmed that the “proportionality principles... distilled in Justice Kennedy’s concurrence” in Harmelin guide application of the Eighth Amendment to challenges to recidivist sentencing. (Ewing, supra, 538 U.S. at pp. 23–25.) In Ewing, the defendant was sentenced to a term of 25 years to life pursuant to the Three Strikes law for shoplifting golf clubs worth approximately $1,200. He had suffered several prior theft-related convictions, as well as convictions for robbery, battery, burglary, possession of drug paraphernalia, unlawful possession of a firearm, and trespassing. (Id. at pp. 17–19.) In rejecting Ewing’s cruel and unusual punishment claim, the Court explained that the Eighth Amendment contains a “‘narrow proportionality principle’” applicable to noncapital sentences. (Id. at p. 20.) However, the Eighth Amendment does not require strict proportionality between crime and sentence, but only forbids extreme sentences that are grossly disproportionate to the crime. (Id. at p. 23.) Ewing recognized that the Three Strikes scheme represents the Legislature’s 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 Andrade, the defendant’s two consecutive 25-years-to-life sentences, imposed for shoplifting videotapes valued at approximately $150, were upheld against an Eighth Amendment challenge. (Andrade, supra, 538 U.S.at pp. 66, 77.) The high court stated that one governing legal principle emerges as “‘clearly established’” federal law: “A gross disproportionality principle is applicable to sentences for terms of years.” (Id. at pp. 72, 73.) The court held that it was not an unreasonable application of this principle for the California Court of Appeal to affirm Andrade’s sentence. (Id. at p. 77.) Thus, if the reviewing court determines the sentence is not grossly disproportionate to the crime, which corresponds to the first Solem factor, no further analysis is required.
This gross proportionality test corresponds to the test used in analyzing whether a sentence is cruel or unusual under the California Constitution, as stated in In re Lynch (1972) 8 Cal.3d 410, 424 (Lynch) [holding punishment to be cruel or unusual if so disproportionate to the crime that it “shocks the conscience and offends fundamental notions of human dignity”].) In Lynch, the court set out three techniques for evaluating whether a sentence is cruel and unusual under California law. According to Lynch, it is useful to: (1) examine the “nature of the offense and/or the offender, with particular regard to the degree of danger both present to society” (id. at p. 425); (2) compare the challenged punishment with punishments prescribed for more serious offenses in the same jurisdiction (id. at p. 426); and (3) compare the challenged punishment with punishments prescribed for the same offense in other jurisdictions (id. at p. 427). The California Supreme Court has emphasized that the defendant must overcome a considerable burden in challenging a penalty as cruel or unusual. (People v. Wingo (1975) 14 Cal.3d 169, 174; People v. Rodriguez (1998) 66 Cal.App.4th 157, 173, fn. 14.)
As in the test set out in Solem, the usefulness of Lynch’s second and third techniques is questionable. The California Supreme Court has held in death penalty decisions subsequent to Lynch that “intercase” proportionality review is not required by the federal Constitution and “is not mandated under our state Constitution in order to ensure due process and equal protection, nor is it required in order to avoid the infliction of cruel or unusual punishment.” (People v. Crittenden (1994) 9 Cal.4th 83, 156; accord, People v. Barnett (1998) 17 Cal.4th 1044, 1182; People v. Bradford (1997) 15 Cal.4th 1229, 1384.) The court has indicated that all that is required is “intracase” review, i.e., an evaluation of whether the sentence is “grossly disproportionate” to the offense. (People v. Bradford, supra, at p. 1384.)
Under this gross disproportionality principle that must guide our analysis of appellant’s challenge, we conclude that appellant’s individual circumstances do not demonstrate that his punishment is cruel and unusual under the Lynch test or the federal test. The particulars of appellant’s criminal history, which included several rapes, burglaries and robberies with the use of weapons were described in the previous section. Appellant received the Three Strikes sentence not merely for the present offense of failure to register as a sex offender. His sentence was premised on his recidivist behavior, which justifies the punishment imposed.
Appellant relies on Carmony II, in which a Three Strikes sentence for violating section 290 was deemed cruel and unusual punishment. (Carmony II, supra, 127 Cal.App.4th at p. 1084.) In that case, however, the defendant registered his correct address with the police a month before his birthday, but failed to update his registration with the same information when his birthday arrived. (Id. at p. 1073.) Because Carmony’s address had not changed and his parole officer knew where he was residing, the Court of Appeal characterized his offense as a technical violation that did not warrant a Three Strikes sentence of 25 years to life. (Id. at pp. 1071–1072.) “[T]he requirement that defendant reregister within five days of his birthday served no stated or rational purpose of the registration law....” (Id. at p. 1073.) The court found that the sentence was grossly disproportionate to the offense, and it shocked the conscience and offended notions of human dignity. (Id. at pp. 1072–1073.)
Appellant’s case does not involve the failure to provide what the Carmony court characterized as duplicate registration information. Appellant moved away from his registered address without informing the authorities. The evidence shows that his failure to register as a sex offender when he changed addresses was an intentional deception and was presumably designed to conceal his whereabouts. Appellant ignores the seriousness of his recidivist behavior and the failure of rehabilitation upon which his sentence is based. (See People v. Cooper (1996) 43 Cal.App.4th 815, 825–826.) His situation was therefore fundamentally different from Carmony’s, and that case is not persuasive authority for appellant’s claim of cruel and unusual punishment. (See People v. Poslof (2005) 126 Cal.App.4th 92, 96–97, 109 [although defendant properly updated principal residence in Merced County, he failed to register newly purchased second home in San Bernardino County, and therefore his “27-years-to-life Three Strikes sentence does not qualify as cruel and unusual punishment due to his criminal history as a recidivist and child sex offender whom the jury found knowingly failed to register in violation of section 290”]; Meeks, supra, 123 Cal.App.4th 695, 709 [punishment of 25-years-to-life Three Strikes term for defendant who stopped registering despite moving several times held not cruel and unusual by same court that decided Carmony II].)
In the language of Rummel v. Estelle (1980) 445 U.S. 263, 276 (Rummel), a case whose viability was reaffirmed in Andrade, supra, 538 U.S. at pages 73–74, the state has an “interest, expressed in all recidivist statutes, in dealing in a harsher manner with those who by repeated criminal acts have shown that they are simply incapable of conforming to the norms of society as established by its criminal law.” (Rummel, supra, at pp. 265–266, 276 [mandatory life sentence for felony of obtaining $120.75 by false pretenses, with prior felonies of fraudulent use of a credit card to obtain $80 of goods or services and passing a forged check for $28.36].) The “primary goals [of a recidivist statute] are to deter repeat offenders and, at some point in the life of one who repeatedly commits criminal offenses serious enough to be punished as felonies, to segregate that person from the rest of society for an extended period of time. This segregation and its duration are based not merely on that person’s most recent offense but also on the propensities he has demonstrated over a period of time during which he has been convicted of and sentenced for other crimes.... [T]he point at which a recidivist will be deemed to have demonstrated the necessary propensities and the amount of time that the recidivist will be isolated from society are matters largely within the discretion of the punishing jurisdiction.” (Id. at pp. 284–285.) Although California’s recidivist statute may be among the most extreme in the nation, the proscription against cruel and/or unusual punishment does not require California “to march in lockstep with other states in fashioning a penal code” or to conform its penal code “‘to the “majority rule” or the least common denominator of penalties nationwide.’” (People v. Martinez (1999) 71 Cal.App.4th 1502, 1516.)
In sum, appellant’s sentence is not an “extreme” sentence that is “‘grossly disproportionate to the crime,’” nor does it “shock[] the conscience or offend[] fundamental notions of human dignity.” (Harmelin, supra, 501 U.S. at p. 1001; Lynch, supra, 8 Cal.3d at p. 424.) The sentence therefore does not run afoul of either the California Constitution or the Eighth Amendment strictures of the United States Constitution, and it does not constitute cruel and unusual punishment.
DISPOSITION
The judgments in counts 1, 2, and 4 are reversed. The judgment in count 3 is affirmed. The superior court is directed to amend the abstract of judgment accordingly.
We concur: BOREN, P. J., ASHMANN-GERST, J.
The prosecutor also argued that when one has ties to a location for seven years, “where [are you] going to go?” The prosecutor said appellant maybe had family here, and would stay where “they are at,... where his job maybe is.” According to the prosecutor, even if appellant were a transient he would not suddenly leave Los Angeles County. The prosecutor argued that it could not prove that appellant was in Los Angeles County because it would require proving a negative.
The Attorney General makes the same argument—that because appellant had registered at the same address since at least 1999 through 2005, there was ample circumstantial evidence that he was residing in the same county on May 1, 2006, and the other dates named in counts 2 and 4.