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People v. Dixie

California Court of Appeals, Fourth District, Second Division
Mar 13, 2008
No. E042472 (Cal. Ct. App. Mar. 13, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. EARL LEE DIXIE, Defendant and Appellant. E042472 California Court of Appeal, Fourth District, Second Division March 13, 2008

NOT TO BE PUBLISHED

APPEAL from the Superior Court of Riverside County. Super. Ct. No. RIF121599 Bernard Schwartz, Judge.

Nancy L. Tetreault, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Pamela Ratner Sobeck, Supervising Deputy Attorney General, and David Delgado-Rucci, Deputy Attorney General, for Plaintiff and Respondent.

OPINION

RAMIREZ, P. J.

Defendant Earl Lee Dixie was convicted by a jury of evading police and other related charges. He now appeals his sentence of 25 years to life, which was based not only on the jury’s verdict, but on several prior convictions that were used to enhance the sentence. Defendant argues the 25-year-to-life sentence violates the Eighth Amendment prohibition against cruel and unusual punishments. He also contends the trial court abused its discretion when it denied his motion to dismiss one or more of his prior strike convictions.

FACTUAL AND PROCEDURAL HISTORY

While patrolling at dusk on a Sunday evening, in an area known for drug trafficking and prostitution, uniformed police officers in a marked patrol car noticed expired registration tags on defendant’s vehicle. The vehicle was stopped on the side of the road, and defendant was seen speaking to two women through the window. As the officers’ patrol car approached defendant’s vehicle, defendant drove away. The officers activated the red lights on the patrol car and began to follow defendant’s vehicle. Defendant pulled into a nearby parking lot and stopped, but drove off at an accelerated speed when the officers exited their patrol car and began to walk toward him. The officers returned to their patrol car, turned on the siren, and began to pursue defendant.

During the pursuit, defendant drove his vehicle at speeds up to 100 miles per hour through residential streets, ran stop signs and red traffic lights, crashed through a fence, and struck two trees. For a portion of the chase, defendant turned off his headlights, presumably to avoid detection, and drove his vehicle on the wrong side of the street and in a bike lane, where he came close to hitting cyclists. Defendant also drove his vehicle in an area near a park where there is generally foot traffic at the time of day in question. Multiple police units became involved in pursuing defendant, including assistance from the air.

When defendant’s vehicle finally broke down and came to a stop, the officers called for medical assistance because defendant was injured. The officers searched defendant’s vehicle and found an open bottle of gin. Fire personnel searched defendant’s person and found a bag of marijuana in his pocket. The officers determined defendant’s license had been revoked and confirmed his vehicle registration was expired.

At trial, the prosecution offered testimony by an officer who participated in the pursuit, paramedics who arrived at the scene immediately after the chase, and an expert witness concerning substances found in defendant’s blood and to what degree these substances could have impaired defendant’s driving. Defendant testified at trial in his own defense. He explained that extenuating circumstances and emotional pain from the sudden death of a close relative lead him to ingest alcohol and illegal drugs and to then drive under the influence. He claimed to have been free of drug and alcohol abuse for eight years prior to this incident. Defendant stated he did not know why he evaded police. However, he admitted he was “high” and “wasn’t thinking right.” Defendant not only acknowledged the dangerousness of his actions but stated he was sorry for his conduct. In addition, defendant admitted a number of prior offenses and testified he suffers from diabetes, asthma, hypertension, and paranoid schizophrenia.

The jury found defendant guilty of evading pursuing police officers, a felony, in violation of Vehicle Code section 2800.2 (count 1); hit and run after causing property damage during a vehicle accident, a misdemeanor, in violation of Vehicle Code section 20002, subdivision (a) (count 2); driving under the influence of alcohol and drugs, a misdemeanor, in violation of Vehicle Code section 23152, subdivision (a) (count 3); and misdemeanor possession of marijuana while driving a vehicle in violation of Vehicle Code section 23222, subdivision (b) (count 4). Defendant pled guilty to driving a vehicle with a suspended driver’s license, a misdemeanor, in violation of Vehicle Code section 14601.1, subdivision (a) (count 5).

Five prior conviction allegations were tried separately before the court. Two of these convictions were for robberies in 1990, and the third was for an attempted robbery in 1992. Based on evidence submitted by the prosecution, the trial court found those three prior conviction allegations true and qualified as strikes. (Pen. Code, §§ 667, subds. (c), (e)(2)(A), & 1170.12, subd (c)(2)(A).) In the two remaining prior conviction allegations, the prosecution claimed defendant served prior prison terms for a petty theft offense in 1994, and for one of the robberies in 1990, within the meaning of Penal Code section 667.5, subdivision (b). Although the record is somewhat ambiguous, it appears the court struck or dismissed these allegations because defendant subsequently remained free of prison custody for more than five years, and found there was insufficient evidence to satisfy the timing element of Penal Code section 667.5, subdivision (b).

Penal Code section 667.5, subdivision (b), provides for a one-year enhancement to the prison sentence for a new felony based on each prior separate prison term that the defendant served for any prior felony “provided that no additional term shall be imposed under this subdivision for any prison term served prior to a period of five years in which the defendant remained free of both prison custody and the commission of an offense which results in a felony conviction.”

The trial court also considered, but denied, defendant’s motion to dismiss one or more strikes. To support the denial, the trial court noted the serious nature of the evasion offense, defendant’s extensive criminal history, and his poor performance on parole and probation.

For the evasion offense (count 1), the trial court sentenced defendant to an indeterminate term of 25 years to life. In addition, the trial court imposed concurrent terms of six months each on counts 2 and 3 (hit and run and driving under the influence), a concurrent term of 30 days on count 4 (possession of marijuana), and a concurrent term of 10 days on count 5 (driving on a suspended license). Noting the prior prison term allegations had previously been stricken for insufficient evidence, the trial court did not impose any one-year enhancements under Penal Code section 667.5, subdivision (b).

DISCUSSION

Denial of Motion to Dismiss Prior Strike Convictions .

Defendant contends it was “arbitrary” and “irrational” for the trial court to deny his motion to dismiss one or more of his prior strike convictions under Penal Code section 1385, subdivision (a), because of the existence of mitigating factors, which favored a more lenient sentence. He argues the trial court should have exercised its discretion to dismiss one or more strikes because of (1) the tragic circumstances leading to the commission of the current offenses; (2) his recent success in rehabilitating himself; (3) the minor nature of the present evasion offense, which he claims was originally charged only as a misdemeanor; (4) the lack of physical injury to anyone; (5) the minimal damage to property; (6) an absence of violent or menacing conduct; (7) the remoteness of the prior strike offenses; and (8) his age, poor health, and future prospects. Essentially, defendant’s argument is that the trial court abused its discretion because these factors are enough to take him outside the spirit of the “Three Strikes” law. We disagree.

A trial court’s decision not to strike a prior conviction pursuant to Penal Code section 1385, subdivision (a), is reviewed for abuse of discretion. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 531 (Romero).) In a review for an abuse of discretion, we may not substitute our judgment for that of the trial court. (People v. Carmony (2004) 33 Cal.4th 367, 377 (Carmony).) Even if we might have ruled differently in the first instance, we will affirm the trial court’s ruling as long as the record shows the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law. (Id. at p. 378.) Defendant has the burden of demonstrating an abuse of discretion, and in the absence of such a showing, we presume the trial court acted correctly. (Id. at pp. 376-377.)

An exercise of discretion to strike a prior conviction pursuant to Penal Code section 1385 requires the trial court to balance the legitimate societal interest in imposing longer sentences for repeat offenders and the defendant’s constitutional right against disproportionate punishment. (Romero, supra, 13 Cal.4th at pp. 530-531.) Trial courts “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 scheme’s 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.” (People v. Williams (1998) 17 Cal.4th 148, 161 (Williams).) For a career criminal to be deemed to fall outside the scheme of the Three Strikes law, the circumstances must be “extraordinary.” (Carmony, supra, 33 Cal.4th at p. 378.)

Contrary to defendant’s contentions, the record shows the trial court carefully balanced all relevant factors and reached an impartial decision not to dismiss any of defendant’s prior strikes. The court stated it considered not only the facts and circumstances surrounding the current offenses as presented during trial but defendant’s entire criminal history beginning in 1983, including his record of poor performance on parole. Essentially, defendant would have us evaluate these facts anew and give more weight to those facts that defendant believes are enough to take him outside the spirit of the Three Strikes law. However, as noted above, we may not substitute our judgment for that of the trial court.

Like the trial court, we are unconvinced by defendant’s attempts to characterize his current and prior offenses as “nonviolent,” “minor,” or “minimal.” With respect to the current offenses, we agree with the trial court’s conclusion defendant engaged in “serious felonious conduct,” which demonstrated a “conscious disregard” for the lives and safety of others. As the trial court noted, defendant’s conduct was reckless and “could easily have resulted in the death of someone.”

As the trial court noted on the record, defendant’s career as a criminal began in 1983 with a felony conviction for stolen property, which was followed by a burglary, several robberies, domestic violence charges, and repeated parole violations. At least some of defendant’s prior convictions involved recklessness that endangered others, similar to the current offenses. In 1985, defendant reportedly “encountered two men in a vehicle and stole their wallet[s], and when the police came up, he was sitting on top of one of the victims. He ran and then was eventually apprehended.” During a second degree robbery in 1990, defendant was confronted by a security guard outside a store after he had been observed hiding merchandise on his person and leaving the store without paying. He not only resisted arrest but “obtained a small pocket-type of screwdriver and attempted to stab the security guards. The defendant succeeded in stabbing one of the security guards in the leg and bit a store employee on his arm.”

Mitigating circumstances considered by the trial court did include the impact of the tragic circumstances which preceded the commission of the current offenses. The trial court acknowledged that it heard defendant’s testimony at trial and had “no doubt” defendant was “hurting for the loss” of a loved one “at the time when all this was happening,” but concluded this was “no excuse” for endangering the lives of others. We cannot disagree with the trial court’s conclusion in this regard.

The record also supports defendant’s contention he made significant progress in his long-term struggle with addiction in the years immediately preceding the current offenses and had succeeded in developing new family relationships. However, it is apparent these new family relationships were not enough to motivate defendant to continue to live a life free of drug addiction and serious, life-threatening crime. As the trial court noted, defendant was well aware he was facing a 25-year-to-life sentence if he did not make a complete break from his past life of crime and addiction, but even this did not deter him from committing the serious, new offenses in this case. Under these circumstances, we cannot disagree with the trial court’s conclusion defendant’s prospects for living a crime-free life in the future were not significant enough to justify a sentencing break at this time. Despite his efforts to reform, defendant has demonstrated an unrelenting inability or unwillingness to comply with the law or to show any consideration for the safety of others. As a result, he falls squarely within the Three Strikes scheme, which seeks to protect the public from the dangers presented by repeat offenders.

In sum, there is nothing in the record indicating the trial court failed to consider all relevant facts or considered impermissible factors. Neither the facts of the current offenses, nor the circumstances of defendant’s criminal history or current situation support a conclusion he should be deemed outside the spirit of the Three Strikes law and “treated as though he had not previously been convicted of one or more serious and/or violent felonies.” (Williams, supra, 17 Cal.4th at p. 161.) Therefore, the trial court did not abuse its discretion when it denied defendant’s motion to dismiss one or more strikes.

Constitutional Prohibitions Against Cruel and Unusual Punishment .

Citing federal and state constitutional prohibitions against cruel and unusual punishments, defendant argues his 25-year-to-life sentence for evading police is disproportionate to the offense. Defendant argues the sentence is harsh when measured against the “minor triggering offense” and his criminal history.

Rare is the punishment that does not survive a gross disproportionality analysis. (People v. Weddle (1991) 1 Cal.App.4th 1190, 1193.) Under the California Constitution, a sentence constitutes cruel and unusual punishment 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.’ ” (Carmony, supra, 127 Cal.App.4th at p. 1085, quoting In re Lynch (1972) 8 Cal.3d 410, 424.) To determine whether a sentence is cruel and unusual under the state Constitution, it is not necessary to conduct a comparative sentence review of similar cases in California and other jurisdictions as long as the sentence is proportionate to the defendant’s individual culpability. (People v. Webb (1993) 6 Cal.4th 494, 536.)

The Eighth Amendment of the federal Constitution also includes a narrow proportionality protection against grossly disproportionate sentences. (Ewing v. California (2003) 538 U.S. 11, 20 (plur. opn. of O’Connor, J.) (Ewing).) However, the constitutional protection against grossly disproportionate sentences applies only in the “ ‘exceedingly rare’ ” and “ ‘extreme’ ” case. (Id. at p. 21). For example, in Ewing, the United States Supreme Court concluded the Eighth Amendment did not prohibit a sentence of 25 years to life under California’s Three Strike law for a repeat offender who shoplifted golf clubs worth about $1,200 and whose prior convictions included three residential burglaries and one first degree robbery. (Ewing, at pp. 17-18, 29-30.)

Here, we cannot say that the application of the Three Strikes law to defendant’s present felony offense and past recidivism, as described above, violates the Eighth Amendment. In reaching this conclusion, we reject defendant’s attempts to equate his case with others, including Ramirez v. Castro (9th Cir. 2004) 365 F.2d 755 (Ramirez), where courts have found a sentence under the Three Strikes law to be extreme enough to violate the Eighth Amendment. In Ramirez, for example, the Ninth Circuit concluded that a habeas petitioner’s 25-year-to-life sentence under California’s Three Strikes law violated the Eighth Amendment because it was extreme when compared to the gravity of the most recent offense and the defendant’s criminal history. (Ramirez, at p. 767.) Although defendant argues his case “mirrors” that of the defendant in Ramirez, our review of the Ninth Circuit’s fact-specific analysis shows defendant’s case is easily distinguishable. Most significantly, the triggering offense in Ramirez was shoplifting with “no report of any force or violence.” (Id. at p. 757.) The petitioner “surrendered without resistance, admitted his crime, and returned the VCR” to the store. (Id. at p. 758.) His entire criminal history consisted of two other nonviolent shoplifting incidents obtained through a single guilty plea with a total sentence of one year in county jail and three years’ probation. (Id. at pp. 768-769.) For the reasons outlined in the previous discussion, it is obvious that the triggering offense and criminal history at issue in this case are considerably more serious, indicating defendant poses a greater risk to the public.

We must also reject defendant’s argument his sentence is grossly disproportionate when compared with punishments in other jurisdictions for the same crime and in California for more serious offenses, such as murder and kidnapping for rape or robbery. “[P]roportionality assumes a basis for comparison. When the fundamental nature of the offense and the offender differ, comparison for proportionality is not possible. The seriousness of the threat a particular offense poses to society is not solely dependent on whether it involves physical injury. Consequently, the commission of a single act of murder, while heinous and severely punished, cannot be compared with the commission of multiple felonies. [Citation.]” (People v. Cooper (1996) 43 Cal.App.4th 815, 826.)

DISPOSITION

The judgment and sentence are affirmed.

We concur: KING, J., MILLER, J.


Summaries of

People v. Dixie

California Court of Appeals, Fourth District, Second Division
Mar 13, 2008
No. E042472 (Cal. Ct. App. Mar. 13, 2008)
Case details for

People v. Dixie

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. EARL LEE DIXIE, Defendant and…

Court:California Court of Appeals, Fourth District, Second Division

Date published: Mar 13, 2008

Citations

No. E042472 (Cal. Ct. App. Mar. 13, 2008)