Opinion
C040664.
7-31-2003
THE PEOPLE, Plaintiff and Respondent, v. WILMER AUSTIN, Defendant and Appellant.
In a trial to the court, defendant Wilmer Austin was convicted of battery by a prisoner on a non-confined person (Pen. Code, § 4501.5; count one) and obstructing a correctional officer ( § 69; count two). Two strike allegations were found true. Defendant was sentenced to state prison for 25 years to life consecutive to the term he was then serving.
On appeal, defendant contends his sentence constitutes cruel and usual punishment as applied to him. We shall affirm the judgment.
FACTS
On March 20, 2000, an inmate at High Desert State Prison struggled with California Department of Corrections (CDC) Sergeant Robertson. CDC Officer Mays approached to assist Robertson. As Mays provided assistance, defendant approached Mays from behind and punched him in the back of the head, temporarily distracting Mays from assisting Robertson.
At the time of the attack, defendant was serving a prison term of 78 years 4 months, arising from his 1984 Los Angeles County convictions of first degree burglary ( § 459) with personal use of a weapon ( § 12022, subd. (b)), second degree robbery ( § 211), two first degree robberies ( § 211; former § 213.5, now § 212.5), grand theft of an automobile (former § 487, subd. 3; now § 487, subd. (d)), and several sex crimes: forcible oral copulation ( § 288a, subd. (d)), three forcible rapes (former § 261, subd. 2; now § 261, subd. (a)(2)), two forcible sodomies in concert with another person ( § 286, subd. (d)), and foreign object penetration (§ 289). Defendant used a firearm or other deadly weapon during each sex crime. ( § 12022.3.)
Defendant also suffered a 1984 Orange County conviction of second degree robbery.
While incarcerated on the foregoing offenses, defendant garnered a 1988 conviction of battery by an inmate upon a peace officer. (§ 4501.5.)
DISCUSSION
I
Defendant contends his state prison term of 25 years to life constitutes cruel and unusual punishment within the meaning of the Eighth Amendment to the United States Constitution and article I, section 17 of the California Constitution. We are not persuaded.
Defendants argument that his punishment is unconstitutional rests primarily upon the Ninth Circuits decisions in Andrade v. Attorney General of State of California (9th Cir. 2001) 270 F.3d 743, reversed sub nom. Lockyer v. Andrade (2003) 538 U.S. ___ [155 L. Ed. 2d 144, 159, 123 S. Ct. 1166], and Brown v. Mayle (9th Cir. 2002) 283 F.3d 1019, cert. granted, judgment vacated and remanded sub nom. Mayle v. Brown (2003) __ U.S. __ [155 L. Ed. 2d 220, 123 S. Ct. 1509].)
However, in Ewing v. California (2003) 538 U.S. __ [155 L. Ed. 2d 108, 123 S. Ct. 1179] the United States Supreme Court very recently held that a third strike sentence of 25 years to life for grand theft of golf clubs ( § 484) did not violate the Eighth Amendments prohibition on cruel and unusual punishment. (Id. at pp. ___ [155 L. Ed. 2d at pp. 113-123] [Opn. of OConnor, J., Rehnquist, C.J. & Kennedy, J.]; ___ [155 L. Ed. 2d at pp. 123-124] [Opn. of Scalia, J.]; ___ [Opn. of Thomas, J.].)
Defendants present offenses are more serious than Ewings, because they involve physical force against a correctional officer. Moreover, defendants criminal history is more egregious than Ewings, because it includes two first degree robberies and several violent sexual offenses. (Ewing v. California, supra, 538 U.S. at p. ___ [155 L. Ed. 2d at pp. 115-116.)
"The California Constitution prohibits `cruel or unusual punishment. [Citation.] We construe this provision separately from its counterpart in the federal Constitution. [Citation.] [P] A punishment may violate the California Constitution although not `cruel or unusual in its method, 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, 105 Cal. Rptr. 217, 503 P.2d 921, fn. omitted.) The Lynch court identified three techniques courts used to administer this rule. First, they examined the nature of the offense and the offender. (Id . at p. 425.) Second, they compared the punishment with the penalty for more serious crimes in the same jurisdiction. (Id . at p. 426.) Third, they compared the punishment to the penalty for the same offense in different jurisdictions. (Id . at p. 427.)" (People v. Cartwright (1995) 39 Cal.App.4th 1123, 1135-1136.)
Regarding the offense and the offender, defendant claims he committed a "relatively simple battery," in the words of the trial court, by striking the correctional officer "lightly in the head." Defendant claims he "was coming to the defense of a fellow Native American inmate in what he perceived of as an unprovoked attack by prison guards. His punch was very weak, and he did not cause any injury to the officer."
However, defendants present convictions are but the latest in a series of violent acts spanning twenty years. For nineteen of those years, he has been incarcerated but his use of violence has not stopped. Nothing in the record suggests a sentence of two, three or four years ( § 4501.5) would cause him to alter his behavior. His sentence does not shock the conscience or offend fundamental notions of human dignity. (People v. Dillon (1983) 34 Cal.3d 441, 487, fn. 38, 194 Cal. Rptr. 390, 668 P.2d 697; In re Lynch, supra, 8 Cal.3d at p. 424.)
Regarding more serious crimes in California, defendant argues, "none of the other habitual criminal statutes in this state are as punitive and expansive as three strikes."
However, the Legislature and the voters were entitled to consider whether the "other habitual criminal statutes" sufficiently deterred recidivism prior to 1994. The Legislature and voters could conclude that recidivism had not been sufficiently deterred and that stronger measures were needed. (Cf. Ewing v. California, supra, 538 U.S. at p. ___ [155 L. Ed. 2d at pp. 113-114, 119].) The fact that stronger measures were subsequently enacted does not shock the conscience or offend fundamental notions of human dignity. (In re Lynch, supra, 8 Cal.3d at p. 424.)
Regarding punishment in other jurisdictions, defendant claims "California stands alone in meting out severe punishment." However, the vice of defendants argument "is clear: for every offense, there necessarily is one or more of the states which punishes said offense most harshly." (People v. Mantanez (2002) 98 Cal.App.4th at 354, 365.) Under defendants rationale, "federalism only extends to those within the extremes, and the extremes are automatically suspect. [Fn. omitted.]" (Ibid .)
"That Californias punishment scheme is among the most extreme does not compel the conclusion that it is unconstitutionally cruel or unusual. This state 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. [Citation.] Otherwise, California could never take the toughest stance against repeat offenders or any other type of criminal conduct." (People v. Martinez (1999) 71 Cal.App.4th 1502, 1516; see People v. Romero (2002) 99 Cal.App.4th 1418, 1433.)
In sum, defendants prison sentence does not constitute cruel or unusual punishment.
II
Our review of the record discloses an error on the abstract of judgment. In the grid following line 1, the abstract correctly states that sentence on count two was stayed pursuant to section 654. However, on line 6, the abstract states that defendant was sentenced to state prison "For 25 years to life, WITH POSSIBILITY OF PAROLE on counts 1 & 2"; this should read, "count 1." We shall direct the trial court to prepare a corrected abstract.
DISPOSITION
The judgment is affirmed. The trial court is directed to prepare a corrected abstract of judgment and to forward a certified copy to the Department of Corrections.
We concur: BLEASE, Acting P.J., ROBIE, J. --------------- Notes: Further undesignated statutory references are to the Penal Code.