Opinion
A099759.
7-10-2003
THE PEOPLE, Plaintiff and Respondent, v. RAYMOND T. CRIMS, Defendant and Appellant.
Defendant Raymond T. Crims was sentenced to prison for six years and eight months on his plea of guilty to a charge of failing to register as a sex offender under Penal Code section 290, subdivision (g)(2) and his admission of a violation of probation on a prior similar conviction. On appeal he contends that his sentence constitutes an abuse of discretion by the sentencing court and cruel and unusual punishment in violation of the state and federal constitutions. We detect no error, and affirm the judgment.
All further statutory references are to the Penal Code.
BACKGROUND
In 1994, at the age of 21, defendant was convicted in Minnesota of third degree criminal sexual conduct and sentenced to four years in prison. The charges arose from an incident in which police arrested defendant in the apparent act of raping, or attempting to rape, a woman, who stated that defendant had forced himself upon her and, in the course of doing so, had punched her in the chest, knocked her to the ground, held an X-acto knife to her throat, and threatened to kill her if she continued to scream.
In August 1999, defendant was charged in case No. CF-25276.01 with failing to register as a sex offender. The charge arose from his failure to file a change-of-address form after living in a new address for approximately three months. Defendant was convicted in October and placed on three years probation. Defendant reportedly filed monthly reports in November and December 1999, but last reported his address on January 4, 2000. In February 2000, a letter from his probation officer was returned marked "no forwarding address." Detectives checked all known addresses but were unable to find defendant. Defendants reported employer told officers that he believed defendant had moved to Chicago. Defendant later told the probation officer that he began using cocaine around November 1999 and was using it heavily by February 2000. In that month he moved with his girlfriend to Minnesota, where he claimed to have registered as a sex offender during 2000. He blamed cocaine for his failure to file reports with Lake County authorities after December 1999.
On March 21, 2000, the court in case No. CF-25276.01 summarily revoked defendants probation and issued a warrant for his arrest. On May 9, 2000, Lake County authorities filed case No. CF-26692.01, charging defendant with failing to report a change of address to the Clearlake Police Department in violation of section 290, subdivisions (f)(1) and (g)(2). The complaint alleged the Minnesota sexual misconduct charge as a strike prior. A warrant for defendants arrest issued in that matter on May 9, 2000.
As originally filed the information charged noncompliance with section 290, subdivision (g)(3). However, it was amended by interlineation to charge noncompliance with section 290, subdivision (g)(2).
The probation report further indicates that in April 2001 defendant was convicted in St. Paul, Minnesota, of failing to register as a sex offender under Minnesota law. The charge rested on his failure to report an address change two months after moving. He was placed on five years probation. A Minnesota probation officer reported that defendant had "experienced compliance problems throughout the supervisory period" and "primarily struggled with chemical dependency issues," repeatedly testing positive for marijuana, cocaine, or both. He successfully completed an inpatient program but was discharged from the aftercare program for absenteeism. As of March 2002, Minnesota authorities had obtained an active outstanding warrant for defendants arrest for violation of probation.
Defendant was apparently taken into custody in Lake County on or before February 2002. On February 21, 2002, defendant entered a guilty plea to the charge as amended (see fn. 2), and admitted the allegation of a strike prior. Defendant subsequently filed a motion to withdraw his plea and a request to appoint substitute counsel under People v. Marsden (1970) 2 Cal.3d 118, 84 Cal. Rptr. 156, 465 P.2d 44. After taking evidence, the court denied both motions.
The probation officer noted that defendant admitted having suffered a prior strike conviction within the meaning of section 1170.12. Defendant was thus statutorily ineligible for probation. (§ 1170.12, subd. (a)(2).) Moreover, having suffered more than two prior felony convictions, he was presumptively ineligible for probation under section 1203, subdivision (e)(4). The report also opined that defendant would be a poor candidate for probation as reflected by his poor past performance. It recommended that he be sentenced to state prison for three years (the upper term), in the newer case (No. CF-26692.01) and to a consecutive term of two years (the middle term), in the older case (No. CF-25276.01). It recommended that the term be doubled as a second strike case under section 1170.12, subdivision (c)(1). However it recommended that the term on the older case be treated as the subordinate term and that all but one-third of it (one year, four months) be stayed. The aggregate term thus recommended was seven years, four months.
On June 6, 2002, the court sentenced defendant to a term of six years and eight months. The court treated the 2000 case, No. CF-26692.01, as the principal term and imposed the upper term of three years as to it, doubled to six years under section 1170.12, subdivision (c)(1). It imposed a consecutive term of eight months on the 1999 conviction. Defendant properly perfected this appeal.
The court did not double the eight-month term imposed for the 1999 conviction, apparently because the strike allegations in that matter were dismissed as part of defendants plea arrangement.
The notice of appeal was filed on August 6, 2002, which was the 61st day after sentence was ostensibly pronounced. However the pronouncement of sentence left undetermined the amount of credit to which defendant was entitled based on presentence confinement. We need not consider whether this deprived the judgment of finality for purposes of commencing the time to appeal, because the notice of appeal was constructively filed in any event on or before the 60th day, August 5, as reflected in the postmark of that date on the envelope in which the notice was mailed from San Quentin. (See Cal. Rules of Court, rule 31(e)(2).) The notice also satisfied the requirements for appeals after guilty pleas, because (1) it recited that it raised only sentencing issues occurring after entry of the plea, and (2) it included an application for a certificate of probable cause, which certificate the trial court issued on August 21, 2002. (See Cal. Rules of Court, rule 31(d).)
DISCUSSION
I.
ABUSE OF DISCRETION
Defendant first contends that the sentence must be vacated because the trial court abused its discretion by imposing the upper term on the principal count and a consecutive sentence on the subordinate count, because in doing so the court relied on "aggravating factors that are not supported by the record" and "failed to consider mitigating factors that were substantiated by the record."
As defendant acknowledges, the court enumerated five factors in aggravation: (1) defendant had engaged in violent conduct reflecting a serious danger to society; (2) his record showed numerous or increasingly serious prior convictions; (3) he had served a prior prison term; (4) he was on probation when the 2000 offense was committed; and (5) his prior performance on probation was unsatisfactory. The court found only one factor in mitigation, i.e., that defendant voluntarily acknowledged wrongdoing at an early stage of the criminal process.
Defendant attacks the first aggravating factor, asserting that his only "serious" offense was the Minnesota rape he committed at the age of 21, eight years before the present conviction. But the court found, as it was entitled to do, that defendant had sustained two other convictions for violent conduct-one in Illinois for aggravated assault, and one in Minnesota for domestic assault. From the probation report it appears that the Illinois conviction was sustained in January 1999 and the Minnesota conviction in November 2000. Given these three convictions for violent conduct, the court was not obliged to find that, as defendant asserts, he "posed no real danger to society."
Defendant repeatedly asserts that his "failure to follow the technical requirements of section 290" was not shown by the cited facts in aggravation to be " distinctively worse " than the ordinary offense of this kind. Again, the trial court did not abuse its discretion by finding otherwise. In particular it was entitled to reject defendants assertion that his criminal record was not distinctively worse than those of other registration offenders. In addition to the previous failure to register in California, and the three violent offenses already mentioned, defendant had suffered a felony conviction in Minnesota for failing to register as a sex offender in 2000, as well as a further Minnesota conviction, presumed at sentencing to be a misdemeanor, for offering a forged check in 1997. It thus appears that not counting the principal count here, defendant had already been convicted of three felonies (two in Minnesota and one in California) and three misdemeanors (two in Minnesota and one in Illinois). One of the felonies, and two of the misdemeanors, were violent offenses. Two of the offenses were for failure to register, making the principal count the third such offense by defendant.
Defendant implies that his record could have been worse, noting that two of the violent offenses were misdemeanors and that he was charged with, but not convicted of, corporal abuse on a spouse in August 1999. Any criminal record, however damning, could be even more so. In the absence of some clear reason to conclude otherwise, we presume that the trial court could rationally find that defendants criminal record was "distinctively worse" than that of the ordinary registration offender, that it included conduct indicating a serious danger to society, and that defendants convictions were numerous or of increasing seriousness.
Defendant next criticizes the trial court for failing to consider nonstatutory mitigating facts that appear on the face of the record, specifically, defendants transience, his history of chemical dependence, his efforts to deal with his addiction, and his attempts to rehabilitate himself by obtaining his GED and training in word processing. However most of these points were ably argued to the court at the time of sentencing. We must presume, not that the court failed to consider them, but that it found they lacked sufficient substance to outweigh the factors in aggravation. "The trial court is not required to set forth its reasons for rejecting a mitigating factor. [Citations.] Further, unless the record affirmatively indicates otherwise, the trial court is deemed to have considered all relevant criteria, including any mitigating factors. [Citations.]" (People v. Holguin (1989) 213 Cal. App. 3d 1308, 1317-1318, 262 Cal. Rptr. 331.)
Defendant acknowledges the foregoing principle, or a closely related one, but urges us not to apply it when "the only crime is a technical violation of the registrations requirements of section 290." Disregarding the loaded and debatable use of the term "technical," we see no sound basis for such a holding. At its core defendants argument seems to take issue with the statutory scheme for punishing registration violations as a felony. Assuming this court were free to entertain such an argument, it would not do so without a far more compelling showing than defendant has made. Nor do we think this case makes a promising vehicle for such a showing, given defendants persistent and repeated failures to honor his registration obligations in two jurisdictions, despite repeated warnings, admonitions, and advisements concerning them.
Defendant also contends that the court erred by finding that the two charges of failing to register were predominantly independent of each other, so as to justify consecutive sentences. Defendants argument on this point has less to do with the discrete nature of the offenses than with defendants view that they constituted similar "technical offenses." Nor was the trial court required to find that the two offenses arose from a single continuous period of aberrant behavior. Most obviously, they were separated by the fact of his conviction of the first offense. Any misapprehension about the nature of the registration requirement should have been laid to rest by that event. No error appears in the trial courts view of the matter.
II.
CRUEL AND UNUSUAL PUNISHMENT
Defendant contends that the sentence imposed constitutes cruel and unusual punishment in violation of the state and federal constitutions. (See U.S. Const, 8th Amend.; Cal. Const., art. I, § 17.) He acknowledges that no objection was raised below on this ground, but contends that the failure to object reflected ineffective assistance of counsel.
We need not reach this issue because defendant has failed to carry his burden on the merits. After discussing what he contends are the differences in application between the state and federal constitutional provisions, he asserts that his sentence offends both because his offenses "are not the most serious to be punished under the registration statute, and appellant is not the worst offender with regard to a failure to follow the technical registration requirements pursuant to section 290." The sentence was grossly disproportionate to his crime, he contends, because (1) at the time of his conviction he was 29 years old, eight years older than when he committed the offense triggering his registration obligation; (2) his other prior offenses were not serious or violent felonies; (3) his culpability was reduced by his addiction to cocaine and sporadic transience; (4) the circumstances of the current offenses did not place him among the worst offenders; (5) the punishment imposed exceeded the minimum for voluntary manslaughter and the maximum for involuntary manslaughter; (6) it was comparable to or exceeded the sentence ranges prescribed for kidnapping, mayhem, certain forms of aggravated assault, poisoning with intent to injure, and wilful injury to a child likely to cause great harm or death.
These considerations are not sufficient, singly or in combination, to persuade us that defendants sentence is "so disproportionate to the crime . . . 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.) For reasons we have already indicated, defendant has failed to affirmatively demonstrate that he could not properly be viewed as among the more serious violators of the statute in question. Nor has he shown that his sentence is grossly disproportionate, or disproportionate at all, to the sentences which would be imposed for similar offenses, under similar circumstances, in other jurisdictions. His proposed comparison of statutory sentence ranges is deceptive because it overlooks the doubling effect of his strike prior. His sentence properly reflected a recidivist factor not paralleled in the sentence ranges to which he compares himself. He contends in his reply brief that " recidivist sentencing should be essentially irrelevant in this case," but the United States Supreme Court has recently made it clear that recidivism is an appropriate factor and indeed may be the predominant factor justifying a prison term as against a challenge of "gross disproportionality." (Lockyer v. Andrade (2003) 155 L. Ed. 2d 144, ___ U.S. ___ [123 S. Ct. 1166, 1173-1174].) Defendant quotes a comment that the presence of recidivism "does not result in a pro tanto repeal of the cruel or unusual punishment clause." (In re Lynch, supra, 8 Cal.3d 410 at p. 433.) It does not follow, however, that recidivism is "essentially irrelevant" to proportionality review.
Defendant has failed to demonstrate that his sentence offended the constitutional prohibitions on cruel or unusual punishment.
The judgment is affirmed.
We concur: Kay P.J., and Reardon, J.