Opinion
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County, Richard W. Stanford, Jr., Judge. No. 05CF1272
Tony Rackauckas, District Attorney, and Matthew Lockhart, Deputy District Attorney, for Plaintiff and Appellant.
William J. Capriola, under appointment by the Court of Appeal, for Defendant and Respondent.
OPINION
SILLS, P. J.
I. Background
This appeal stems from the trial judge’s second attempt to cap the prison sentence meted out to Melvian Topazio Duran to eight years. The first attempt was People v. Duran (G037451, June 27, 2007) [nonpub. opn.] [2007 WL 1830797] (“Duran I”).
In Duran I, a jury convicted Duran of six counts for her involvement, at age 19, with two male confederates, in the beating and robbery of two male victims. Basically, Duran and a female companion lured the two victims to a Santa Ana motel room for a party of sex, drugs and booze, then two male confederates beat and robbed the two men, and then one of the two victims was taken in his own truck to an ATM machine where he was forced to withdraw the limit in cash.
The six counts in the information filed September 30, 2005 were:
-- two counts of second degree robbery (one for each of the two male victims) [counts 1 and 2];
-- one count of unlawful taking of a vehicle [count 4];
-- two counts of dissuading a witness from reporting a crime (again, one for each of the two victims) [counts 5 and 6]; and, the big one,
-- one count [count 3] of aggravated kidnapping to commit robbery, which carries a mandatory life with the possibility of parole (see Pen. Code, § 209, subd. (b)(1)).
All statutory references in this opinion are to the Penal Code.
The jury convicted Duran of all six counts.
The trial judge granted a new trial on his own motion on the aggravated kidnapping count. That new trial grant became the focus of Duran I in an appeal by the District Attorney. We held that the trial judge had no authority to do it, and the new trial order had to be reversed and the matter remanded for further proceedings.
Prior to Duran I, the trial court had already sentenced Duran to a total of eight years, sans the aggravated kidnapping charge, calculated as follows:
five years for count 1 (second degree robbery);
plus an extra one year for count 2 (second degree robbery);
plus another eight months each for counts 4 (unlawful taking of vehicle) and 5 (dissuading witness from testifying), and 6 (also dissuading witness from testifying).
That left count 3 -- the aggravated kidnapping charge -- as the subject of further proceedings, and the prospect of a life sentence.
In the wake of Duran I, the defense filed what is known as a “Dillon motion” (after People v. Dillon (1983) 34 Cal.3d 441), which essentially asks for the judiciary to reduce a sentence that would otherwise be so disproportionate to the crime that it reaches constitutional dimensions to the point where it would not be unconstitutional.
The trial judge granted the motion, reducing Duran’s conviction from aggravated kidnapping (see § 209), with its mandatory life sentence (subdivision (b)(1)), to simple kidnapping (§ 207), on which the trial judge sentenced Duran to five years, to run concurrently with the eight years already given. In short, the trial judge reduced Duran’s sentence from life with possibility of parole, to eight years. Again, the District Attorney has appealed.
II. Discussion
A. The Dillon Issue
This appeal deals strictly with an issue of state constitutional law. Short of -- maybe -- a sentence of life imprisonment for overtime parking (see Rummel v. Estelle (1980) 445 U.S. 263, 274, fn. 11 [begrudgingly acknowledging such a possibility, as posed by dissenters]), federal law construing the cruel and unusual clause of the United States Constitution affords no non-capital proportionality analysis. The federal high court in Rummel, for example, held that obtaining $125 under false pretenses could be constitutionally punished with life imprisonment under a Texas repeat offender statute -- a punishment that most certainly did not fit the crime, at least if proportionality were a constitutional standard. (Id. at pp. 265-266.)
Ironic, of course, that the Rummel majority opinion was authored by the federal high court’s most devoted fan of Gilbert and Sullivan’s Mikado, from whence the line comes. (See Barrett, A Rehnquist Ode on the Vinson Court (2008) 11 Greenbag 289, 297 [Justice Jackson’s law clerk’s parody of Pish Tush's solo from Act I of Mikado].) Then again, one of the satirical points of the Mikado is that the punishment there most certainly did not fit the crime.
California law, construing the state constitution’s own cruel or unusual punishment clause, does allow for reduction in sentence if the disproportionality between crime and punishment reaches constitutional dimensions. Cases in this area generally derive from two, still viable, California Supreme Court decisions, In re Lynch (1972) 8 Cal.3d 410 and People v. Dillon, supra, 34 Cal.3d 441.
While disproportionality challenges rarely prevail in California courts, the viability of the general idea was reiterated by our high court as recently as this last year. (See People v. Wallace (2008) 44 Cal.4th 1032, 1099 [“we review the particular facts of the case to determine whether the death sentence is so disproportionate to the defendant’s personal culpability as to violate the California Constitution’s prohibition against cruel or unusual punishment”].) A disproportionality challenge even resulted in a published reduction of a sentence in a non-capital case in 2005. (See People v. Carmony (2005) 127 Cal.App.4th 1066, 1071).
At this point we should interject that “Dillon motions” are not a matter of a trial court’s discretion (see People v. Felix (2003) 108 Cal.App.4th 994, 1000), but a strict question of law, because the reduction is constitutionally compelled.
The present case is close, but the application of Dillon is unavailing. Unlike this court’s recent opinion in In re Nunez (2009) 173 Cal.App.4th 709, which held a defendant who was 14 years old could not be given a term of life imprisonment without parole, Duran was not a minor at the time of the crime, nor has she been sentenced to life without possibility of parole. Similarly, like Nunez, Justice Moore’s recent dissenting opinion in People v. Em (2009) 171 Cal.App.4th 964, 978, also involved a minor (15 years old) at the time of the crime. Duran’s crime also involved violence (though she was not directly a part of it), which contrasts with those few other cases where a constitutional reduction has been mandated, e.g., In reLynch, supra, 8 Cal.3d 410 [second offense indecent exposure] or People v. Carmony, supra 127 Cal.App.4th 1066 [failing to register one’s current location as a convicted sex offender within five days of one’s birthday].)
Nunez may have adumbrated a case now on the docket of the United States Supreme Court, certiorari granted Sullivan v. Florida (2009) 129 S.Ct. 2157, where the constitutionality of an LWOP for a 14-year old minor is now at issue.
B. Remand to the Same Judge?
Just like Dillon I, the District Attorney requests this court to order further proceedings on remand to be before a different trial judge. The theory is that the trial judge has indicated that if this court doesn’t approve what he did on the Dillon motion (which we don’t), he has voiced, on the record, the possibility that he will grant Duran probation on the kidnapping for robbery charge.
The request is denied. We see no bias on the part of the trial judge warranting removal, only a thoughtful jurist struggling with a combination of crimes and sentences trying to achieve a correct result. Just because he has failed twice now does not mean he may not yet succeed on the third.
In fact, on remand, we hold that the trial judge may reconsider all the various components of Duran’s total sentence. (See People v. Castaneda (1999) 75 Cal.App.4th 611, 614 [“‘A judge’s subjective belief regarding the length of the sentence to be imposed is not improper as long as it is channeled by the guided discretion outlined in the myriad of statutory sentencing criteria.’”]; People v. Kelly (1999) 72 Cal.App.4th 842, 845, 847 [“‘In sentencing defendant in the first instance the trial court made an error which affected the entire sentencing scheme devised. When we ordered the court to set aside the first judgment and to resentence defendant the court was entitled to reconsider all of its sentencing choices, subject only to the limitation that defendant not be sentenced to a greater aggregate term than the first sentence.’”].) As this court said in People v. Calderon (1993) 20 Cal.App.4th 82, 88: “Surely, a judge should not hand down a term believed to be excessive in the aggregate simply because a mechanistic micro-examination of the counts without regard to each other will yield such a term.” (Italics added.)
III. Disposition
The order granting the Dillon motion reducing count 3 from kidnapping for robbery (section 209) to simple kidnapping (section 207) is reversed. The case is remanded for resentencing, including all components of the sentence.
WE CONCUR: RYLAARSDAM, J., IKOLA, J.