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People v. Gordon

Court of Appeals of California, Fourth District, Division One.
Nov 3, 2003
No. D041336 (Cal. Ct. App. Nov. 3, 2003)

Opinion

D041336.

11-3-2003

THE PEOPLE, Plaintiff and Respondent, v. KENT GORDON, Defendant and Appellant.


Kent Gordon appeals a judgment following his jury conviction of three counts of assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)) and a court true finding that he had incurred two prior serious or violent felony convictions within the meaning of the three strikes law (§ 667, subds. (b)-(i); § 1170.12). He contends: (1) the trial court abused its discretion in sentencing him to three consecutive terms of 25 years to life in prison with the possibility of parole; and (2) his sentence is cruel and unusual punishment in violation of the state and federal Constitutions.

All statutory references are to the Penal Code.

FACTUAL AND PROCEDURAL BACKGROUND

At about midnight on August 15, 2000, Ron Crichton and Paulo Martins were walking across a street to a bar near 30th and Upas Streets . They heard a car accelerating toward them and someone yell angrily from the car. Crichton saw an older model beige or white car about 15 to 20 feet distant from him. He saw a gun pointing out the passenger side window and began running toward the bars entrance. He heard multiple shots fired from an air gun. Multiple pellets hit his neck and other areas of his body, causing him to bleed.

Martins told police he thought he heard someone yell "faggot," but at trial he testified he was not sure what he heard.

Between 11:00 p.m. and midnight that evening, David Swanson was walking his dog when he saw an older model light-colored car at a stop sign at the intersection of Upas and Pershing Streets. The car was about 25 feet distant from him and began moving forward. He saw a young male passenger leaning out of the window and pointing a gun at him. As he leaned over to protect his dog, he heard a loud bang. He was shot in the back, causing him to bleed. The car then left the scene.

Shortly after midnight the same evening, Jimmy Ikenweji was driving his car near University Avenue and Alabama Street when he saw a woman he knew at a bus stop. He parked his car and sat and talked with her. A few minutes later, he heard "pop-pop-pop-pop" sounds. He was shot in the lip, shoulder and leg. He saw a small white car, occupied by two persons, driving away about eight feet distant from him. He ran to his car and followed the white car as it drove evasively. He saw the cars driver was an older man wearing eyeglasses and its passenger was a teenage male. During the chase, the white car made a U-turn and headed toward Ikenweji. Ikenweji swerved to avoid a collision and heard an adult occupant (apparently the driver) of the white car yell: "What the fuck are you doing following us? Whats your problem?" After he lost sight of the car, Ikenweji reported the incident to police, telling them the license plate number of the white car, which he memorized during the chase.

Gordon was the registered owner of the white car. During the early morning hours, police went to Gordons home and asked him if he knew the location of his car, a Toyota Tercel. Gordon replied: "Yeah, yeah. Thank God youre here. I was afraid to death." He gave the police a rambling account of an unknown male approaching him at a drugstore and asking him for a ride to a nearby convenience store. While Gordon drove toward the store, the male began shooting at people waiting at a bus stop. When Gordon tried to stop the car, the male pointed the gun at him and demanded he continue driving. When Gordon saw a car following them, the male placed the gun to Gordons head and said, "Lose them." Gordon drove frantically through the neighborhood, eventually losing the following car. He dropped the male off at the convenience store and went home. He then drove to a fast food restaurant where his car stalled. He parked it and walked home. Gordon described the gun as a large handgun, which he believed was real. However, because of its sound when fired, he thought it was equipped with a silencer. At trial, the parties stipulated that a purchase receipt dated August 13 from a Big-K store at 54th and University Streets for a pellet gun, pellet ammunition, and a CO2 cartridge was found in Gordons apartment.

An information charged Gordon with four counts of assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)). It also alleged that Gordon had two prior serious or violent felony convictions within the meaning of the three strikes law (§§ 667, subds. (b)-(i), 1170.12). The jury found Gordon guilty of all four counts. The trial court found true the prior conviction allegations. On February 26, 2001, the trial court sentenced Gordon to four consecutive terms of 25 years to life in prison.

Count 3, which was later dismissed, arose out of the shooting of Rafael Canedo on University Avenue during the early morning hours of August 15, 2000. At trial, Canejo testified that a small white car with two occupants stopped near him and its teenage passenger leaned out and shot him in the hand.

On the first appeal in this matter, we reversed Gordons conviction on one of the four counts (the Canedo assault) and remanded for resentencing. (People v. Gordon (July 25, 2002, D037561) [nonpub. opn.].)

On December 11, 2002, the trial court resentenced Gordon to three consecutive terms of 25 years to life with the possibility of parole.

Gordon timely filed a notice of appeal challenging his sentence.

DISCUSSION

I

No Abuse of Discretion

Gordon contends the trial court was unaware of, or abused, its discretion to dismiss the prior strike allegations in resentencing him to three consecutive terms of 25 years to life in prison under the three strikes law.

A

At the resentencing hearing on December 11, 2002, the trial court noted that the matter had been remanded to it for resentencing after we reversed one of Gordons four convictions. The court further noted that it had "read the opinion of the appellate court, . . . rereviewed . . . the original probation report and reconsidered the recommendation therein, consistent with the recognition that Count 3 is no longer available to us." The court stated that its true findings on the prior strike allegations invoke "the punishment prescribed" by the three strikes law. It noted Gordon was therefore ineligible for probation and stated:

"In addition, being ineligible for probation, the question arises as to the imposition of concurrent versus consecutive sentencing, which was addressed at the time of the original sentencing hearing. I agree with the finding of the probation officer that consecutive sentencing is justified in that these crimes committed involved different victims and occurred in separate places.

"I dont think its necessary to reiterate any discussion regarding this case. The facts were pretty manifest at the time, and the discussion thats mentioned in the probation officers report outlines the extensive criminal history, beginning as early as 1974 with this defendant, and the fact that he was out of custody a mere four months before finding himself in trouble again.

"Now, he has at length explained about his lack of will on that particular evening, demonstrating that hes without true remorse or empathy with respect to the victims in this matter. It appears that his numerous incarcerations have done little to change his behavior.

"I recall that the defendants account of events on the evening of the offense is not particularly convincing. The statements he provided to officers at the time of his arrest just are not consistent with what was revealed after further investigation.

"Also, it seems unlikely that an individual of the defendants stature would be intimidated by a young man fitting the description provided by the victims and the witnesses. Its a little difficult to accept.

"The finding of the jury on the three counts that are now the subject of our discussion this morning implies that they were convinced that he voluntarily acted in concert with his passenger, probably in hopes of establishing a closer relationship with him."

The trial court then sentenced Gordon to an aggregate term of 75 years to life in prison, consisting of three consecutive terms of 25 years to life in prison with the possibility of parole.

B

Gordon contends the trial court was either unaware of its section 1385 discretion to dismiss prior strike allegations or abused that discretion in sentencing him to three consecutive terms of 25 years to life in prison. The record does not support his assertion that the trial court was unaware of its section 1385 discretion. Before trial, the court noted that it had read the probation reports and some police reports regarding Gordons prior strike convictions. Noting the convictions involved misconduct relating to young boys (i.e., section 288, subd. (a) lewd acts on a child under 14 years of age) and Gordons "chaotic background" and drug use since the 1970s, the trial court stated: "[T]his is not the type of case that I would care to exercise my discretion at this point in time in dismissing a strike prior." At the original sentencing hearing after trial, Gordon filed a motion requesting that the trial court exercise its discretion under section 1385 to dismiss one or both of his prior strike allegations. The court stated that although it was "mindful of [its] discretion [to dismiss prior strike allegations] under Romero[] and other cases, this does not seem to me to be a case that warrants use of that discretion." The court noted Gordons instant offenses involved separate victims at different locations, the wanton behavior of the instant offenses, and Gordons extensive criminal history and poor performance on probation and parole. It therefore sentenced Gordon to four consecutive terms of 25 years to life. At the resentencing hearing after we reversed one of his convictions and remanded this matter, the trial court sentenced Gordon to three consecutive terms of 25 years to life. Although in so doing the trial court did not expressly state that it was aware of its discretion to dismiss either or both of Gordons prior strike allegations, the record supports the inference that it was aware of that discretion. Before trial, the court referred to that discretion, noting it was unlikely to exercise that discretion. At the original sentencing hearing, the court expressly noted it had that discretion, but chose not to exercise that discretion. It is highly unlikely that the court forgot that it had that discretion between February 26, 2001 (the date of the original sentencing hearing) and December 11, 2002 (the date of the resentencing hearing). Rather, in the absence of any evidence showing otherwise, we presume the trial court continued to be aware of that discretion at the time of the resentencing hearing. (People v. Mosley (1997) 53 Cal.App.4th 489, 496 ["The general rule is that a trial court is presumed to have been aware of and followed the applicable law."].)

People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 530.

Furthermore, we conclude the trial court did not abuse its section 1385 discretion by not dismissing either or both of Gordons prior strike allegations. Section 1385, subdivision (a) provides: "The judge or magistrate may, either on his or her own motion or upon the application of the prosecuting attorney, and in the furtherance of justice, order an action to be dismissed. . . ." In People v. Superior Court (Romero), supra, 13 Cal.4th 497, the court concluded trial courts have the discretion under section 1385, subdivision (a) to dismiss prior strike allegations under the three strikes law. (Id . at pp. 529-530.) Exercise of that discretion is subject to review for abuse of discretion. (Id. at p. 530.) In deciding whether to dismiss a prior strike allegation, a trial court must consider the constitutional rights of the defendant and the interests of society. (Id. at pp. 530-531.) In so doing, the court "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 . . . spirit" of the three strikes law. (People v. Williams (1998) 17 Cal.4th 148, 161.) The record in this case shows the trial court considered all of the appropriate factors in declining to exercise its section 1385 discretion. It considered Gordons extensive criminal history, which began with a section 288 lewd act conviction in 1974. He continued to commit criminal lewd acts involving young boys despite convictions and incarcerations therefor. The court reviewed and considered the probation report, which discussed the particulars of Gordons background, character, and prospects. Furthermore, the court considered the circumstances of the instant offenses with which it was familiar, having presided over the trial. Based on the record in this case, we conclude the trial court did not act arbitrarily or irrationally in declining to exercise its section 1385 discretion to dismiss either or both of the prior strike allegations.

Gordon argues the trial court abused its discretion because: (1) his prior strike convictions arose out of one 1989 case; (2) he has never been convicted of an offense involving bodily injury, force, or violence (before the instant case); (3) the instant felony offenses are "wobblers" that could have been reduced to misdemeanors; and (4) he was not the actual perpetrator of the instant offenses, but only aided and abetted the perpetrator. However, those factors, whether considered individually or together, are not sufficient to show the trial court abused its discretion by not dismissing the prior strike allegations. The trial court presumably was aware of those factors and presumably concluded they were outweighed by other factors, including Gordons extensive criminal history and recidivism and the seriousness of the instant offenses, that supported its decision to decline to exercise its section 1385 discretion. The trial court did not abuse its section 1385 in declining to exercise that discretion.

C

Gordon also contends the trial court was unaware of, or abused, its discretion to dismiss either or both of the prior strike allegations as to one count but not as to other counts. In People v. Garcia (1999) 20 Cal.4th 490, the court concluded trial courts have discretion under section 1385 to dismiss prior strike allegations under the three strikes law as to one count but not as to another count. (Id. at pp. 503-504.) The record does not support Gordons assertion that the trial court was unaware of its Garcia discretion. Although the trial court on resentencing Gordon did not expressly refer to its discretion under Garcia, we presume it was aware of that discretion absent evidence to the contrary. (People v. Mosley, supra, 53 Cal.App.4th at p. 496; People v. Davis (1996) 50 Cal.App.4th 168, 172 [where record is silent regarding trial courts purported misunderstanding of its § 1385 discretion, appellants burden is not sustained].)

Furthermore, we conclude the trial court did not abuse its Garcia discretion by not dismissing either or both of the prior strike allegations as to one or two, but not all three, of his instant offenses. The trial court considered Gordons extensive criminal history, the circumstances and seriousness of the instant offenses, and the particulars of Gordons background, character, and prospects. The trial court did not act arbitrarily or irrationally by presumably concluding the interests of justice would not be served were it to dismiss either or both prior strike allegations as to one or more of Gordons assault convictions.

D

Gordon also contends the trial court erred by concluding it did not have discretion to impose concurrent, rather than consecutive, terms of 25 years to life for his three convictions. Section 667, subdivision (c)(6) provides: "If there is a current conviction for more than one felony count not committed on the same occasion, and not arising from the same set of operative facts, the court shall sentence the defendant consecutively on each count pursuant to [this section]." (Italics added.) The instant three assaults committed by him were not committed on the same occasion and did not arise from the same set of operative facts. (§ 667, subd. (c)(6).) Therefore, the trial court was required to impose consecutive terms under the provisions of section 667, subdivision (c)(6) and did not have discretion to impose concurrent terms.

In People v. Deloza (1998) 18 Cal.4th 585, the court concluded the phrase "on the same occasion" referred to at least close temporal and spatial proximity. (Id. at p. 595.) In Deloza, the defendant entered a furniture store, robbed four victims, and left. (Ibid.) Because his robberies were committed in one location and essentially simultaneously against the same group of victims, Deloza concluded they were committed on the same occasion. (Id. at pp. 595-596.) Deloza further noted there was not any event that could be considered to separate one occasion of robbery from another. (Id. at p. 596.)

In People v. Lawrence (2000) 24 Cal.4th 219, the court addressed both phrases "on the same occasion" and "arising from the same set of operative facts." (Id. at pp. 223, 225-234.) The defendant committed petty theft at a store, ran through the stores parking lot, knocked down an elderly man, ran across a street through a gas station, trespassed in an enclosed backyard of a home that was one to three blocks away from the store, and assaulted one of the homes residents who had chased and tackled him. (Id. at pp. 223-224, 228.) Because he was no longer being pursued when he entered the backyard about two or three minutes after his petty theft, the court concluded the defendants offenses at the store and at the home involved two separate locations and two separate groups of victims and were not committed simultaneously. (Ibid.) Therefore, the offenses were not committed on the same occasion. (Id. at p. 229.) Citing People v. Durant (1999) 68 Cal.App.4th 1393 with approval, the court concluded the phrase "not arising out of the same set of operative facts" means the offenses do not share "common acts or criminal conduct that serves to establish the elements of the current felony offenses." (Lawrence, supra, at pp. 232-233.) It quoted from Durant:

"`[T]he nature and elements of the current charged offense becomes highly relevant. . . . [W]here the elements of the original crime [e.g., burglary] have been satisfied, any crime subsequently committed will not arise from the same set of operative facts underlying the completed crime; rather such crime is necessarily committed at a different time. . . . [Citation.]" (Lawrence, supra, at p. 232, quoting Durant, supra, at pp. 1405-1406.)

However, if "common acts and elements of such offenses unfold together or overlap," that factor favors a conclusion that the offenses arose from the same set of operative facts. (Lawrence, supra, at p. 233.) Lawrence concluded the defendants assault on the resident did not arise out of the same set of operative facts as the theft from the store. (Id. at p. 234.) It stated: "Because defendants multiple current felony convictions neither were committed on the same occasion . . . nor arose from the same set of operative facts, the trial court correctly concluded it was mandated by [section 667,] subdivision (c)(6) to sentence [the defendant] consecutively [under the three strikes law]." (Ibid.)

Applying the principles of Deloza and Lawrence to this case, we conclude Gordons three offenses were not committed on the same occasion and did not arise out of the same set of operative facts. (§ 667, subd. (c)(6).) The three assaults were not committed at the same location, but rather were committed at different locations as Gordon drove his car to various sites at which he and his accomplice found their shooting victims. Furthermore, the three assaults were not committed at the same time, or almost simultaneously, against the same group of victims. Rather, they were committed over a period of about one hour as Gordon drove his car around the neighborhood, finding separate victims at separate locations. The separation of time and space among Gordons three offenses was greater than that in Lawrence in which the court concluded the offenses were not committed on the same occasion. (People v. Lawrence, supra, 24 Cal.4th at pp. 227-229.) Because Gordons three offenses did not have close spatial or temporal proximity, they were not committed on the same occasion. (§ 667, subd. (c)(6); People v. Deloza, supra, 18 Cal.4th at pp. 594-595; Lawrence, supra, at pp. 227-229.) Furthermore, Gordons three offenses were completed sequentially and did not unfold together or overlap. The elements of assault by means of force likely to produce great bodily injury were satisfied when Gordons accomplice shot at a victim with the required intent. Unlike robbery, assault does not continue until a place of safety is found. Each assault was committed at a separate place and at a separate time. When Gordon aided and abetted his accomplice in committing each assault, his culpability for that assault was established. Because the three assaults did not share common acts or criminal conduct that served to establish the elements of the section 245, subdivision (a)(1) assaults, Gordons offenses did not arise out of the same set of operative facts. (§ 667, subd. (c)(6); Lawrence, supra, at pp. 233-234; People v. Durant, supra, 68 Cal.App.4th at pp. 1397-1399.) Accordingly, the trial court was required to sentence Gordon consecutively on each of the three offenses and did not have discretion to sentence him concurrently under section 667, subdivision (c)(6).

II

Gordons Sentence Is Not Cruel or Unusual Punishment

Gordon contends his sentence of three consecutive terms of 25 years to life, for an aggregate sentence of 75 years to life, violates the state and federal constitutional prohibitions against cruel and/or unusual punishment.

A

Cruel and unusual punishment is prohibited by the Eighth Amendment of the United States Constitution and article I, section 17 of the California Constitution. "Whether a punishment is cruel or unusual is a question of law for the appellate court, but the underlying disputed facts must be viewed in the light most favorable to the judgment. [Citations.]" (People v. Martinez (1999) 76 Cal.App.4th 489, 496.)

The Eighth Amendment provides: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." (Italics added.) It applies to California pursuant to the due process clause of the Fourteenth Amendment.

Although the Eighth Amendment of the United States Constitution prohibits "cruel and unusual" punishments, article I, section 17 of the California Constitution provides: "Cruel or unusual punishment may not be inflicted . . . ." (Italics added.) In disposing of this issue, we do not attribute significance to the difference in language.

B

Under the California Constitution, punishment is cruel or unusual if it is so disproportionate to the crime committed that it "shocks the conscience and offends fundamental notions of human dignity." (In re Lynch (1972) 8 Cal.3d 410, 424, fn. omitted.) Lynch analyzed three factors in determining whether a sentence is cruel or unusual: (1) the nature of the offense and the offender, with particular regard to the degree of danger which both present to society; (2) a comparison of the challenged penalty with the punishment prescribed in the same jurisdiction for other more serious offenses; and (3) a comparison of the challenged penalty with the punishment prescribed for the same offense in other jurisdictions. (Id . at pp. 425-427.) California appellate courts have consistently concluded that punishment of recidivist offenders under the three strikes law does not constitute cruel or unusual punishment under the California Constitution. (See, e.g., People v. Romero (2002) 99 Cal.App.4th 1418, 1431-1433 [25 years to life]; People v. Mantanez (2002) 98 Cal.App.4th 354, 359 [25 years to life]; People v. Cuevas (2001) 89 Cal.App.4th 689, 702-705 [85 years to life]; People v. Cortez (1999) 73 Cal.App.4th 276, 284-286 [25 years to life]; People v. Martinez (1999) 71 Cal.App.4th 1502, 1509-1517 [25 years to life]; People v. Cline (1998) 60 Cal.App.4th 1327, 1337-1338 [25 years to life]; People v. Goodwin (1997) 59 Cal.App.4th 1084, 1093-1094 [25 years to life]; People v. Cooper (1996) 43 Cal.App.4th 815, 825-828 [25 years to life]; People v. Kinsey (1995) 40 Cal.App.4th 1621, 1630-1631 [29 years to life]; People v. Ingram (1995) 40 Cal.App.4th 1397, 1413-1417 [61 years to life], disapproved on other grounds in People v. Dotson (1997) 16 Cal.4th 547, 560, fn. 8; People v. Cartwright (1995) 39 Cal.App.4th 1123, 1134-1137 [indeterminate term of 375 years to life and determinate term of 53 years].)

Applying Lynch to the circumstances in this case, we first consider the nature of the offenses and the offender, with particular regard to the degree of danger they present to society. (In re Lynch, supra, 8 Cal.3d at p. 425.) We consider the offenses in the abstract and as committed, evaluating "the totality of the circumstances surrounding the commission of the offense[s] in the case at bar, including such factors as [their] motive, the way [they were] committed, the extent of the defendants involvement, and the consequences of his acts." (People v. Dillon (1983) 34 Cal.3d 441, 479.) Although a section 245, subdivision (a)(1) assault is a "wobbler" offense that can be treated as either a felony or a misdemeanor, that factor does not detract from the seriousness of the offenses in the abstract or as committed by Gordon. Assault, especially by means of force likely to produce great bodily injury, involves violence and can be viewed as a more egregious offense than petty theft and drug possession. Application of the three strikes law to those other offenses has been upheld. (People v. Romero, supra, 99 Cal.App.4th at pp. 1431-1433 [petty theft]; People v. Mantanez, supra, 98 Cal.App.4th at pp. 1509-1517 [drug possession]; People v. Martinez, supra, 71 Cal.App.4th at pp. 1509-1511 [drug possession].) Furthermore, the assaults committed by Gordon and his accomplice were particularly egregious. Gordon aided and abetted his teenage passenger, who repeatedly fired Gordons pellet gun at strangers on San Diego streets. Each of their victims was shot and suffered injuries. Because either Gordon or his passenger may have yelled "faggot" at Crichton or Martins, the motive underlying the assaults appears to have been dislike of homosexuals. Therefore, Gordons assault offenses, in the abstract and as committed, present a substantial degree of danger to society. (Lynch , supra, at p. 425; Dillon, supra, at p. 479.)

Assault is an unlawful attempt, coupled with the present ability, to commit violent injury on the person of another. (People v. Colantuono (1994) 7 Cal.4th 206, 214; People v. Rocha (1971) 3 Cal.3d 893, 899.) Assault is an incipient or inchoate battery. (Colantuono, supra, at p. 216.)

The fact that Gordon apparently was only an aider and abettor and not the actual shooter does not minimize or mitigate his culpability for commission of the three assaults.

In considering the nature of the offender, we consider whether the punishment is grossly disproportionate to the offenders individual culpability, as shown by his or her age, prior criminality, personal characteristics, and state of mind. (People v. Dillon, supra, 34 Cal.3d at p. 479.) In this case, the record shows Gordon has an extensive criminal history that began in 1974. His prior offenses include a lewd act on a child, lewd acts in public, receiving stolen property, failing to register as a sex offender, failing to comply with a protective order, oral copulation with a person under age 14, fraud, and sexual abuse. He has been in prison six times and has violated his probation and parole. Furthermore, Gordon committed the instant offenses only four months after being released from prison. He was 54 years old at the time. Gordon has committed offenses involving bodily injury. The three instant assaults caused bodily injury to each of his victims. Furthermore, the three strikes law does not apply only to violent recidivists, but also applies to offenders who have prior serious felonies within the meaning of the three strikes law. (§ 667, subd. (d)(1).) Enhanced punishment for nonviolent recidivists is not unconstitutional. (People v. Ingram, supra, 40 Cal.App.4th at p. 1415; Rummel v. Estelle (1980) 445 U.S. 263, 275, 284-285.) In this case, Gordons criminal history includes repeated offenses against children, which society generally considers egregious. Gordons criminal history shows he presents a significant danger to society. Considering the nature of the offenses and offender, we conclude Gordons sentence is not shocking or disproportionate to the offenses he committed.

Regarding the second and third Lynch factors, Gordon has not presented any substantive analysis comparing the challenged penalty with the punishment prescribed in the same jurisdiction for other more serious offenses or with the punishment prescribed for the same offense in other jurisdictions. (In re Lynch, supra, 8 Cal.3d at pp. 426-427.) Because Gordon has not met his burden on appeal regarding those two factors, we do not address those factors and conclude they do not support Gordons contention. (Cf. In re DeBeque (1989) 212 Cal.App.3d 241, 254-255.)

Considering the three Lynch factors in the circumstances of this case, we conclude Gordons sentence does not shock the conscience or offend fundamental notions of human dignity. (In re Lynch, supra, 8 Cal.3d at p. 424.) Accordingly, Gordons aggregate sentence of 75 years to life in prison pursuant to the three strikes law does not constitute cruel or unusual punishment under the California Constitution.

C

Under the Eighth Amendment of the United States Constitution, a term of years is cruel and unusual punishment if it is grossly disproportionate to the crime committed. (Lockyer v. Andrade (2003) ___ U.S. ___ [123 S.Ct. 1166, 1173, 155 L.Ed.2d 144]; Solem v. Helm (1983) 463 U.S. 277, 284, 290.) "The Eighth Amendment, which forbids cruel and unusual punishments, contains a narrow proportionality principle that applies to noncapital sentences. [Citation.]" (Ewing v. California (2003) ___U.S. ___ [123 S.Ct. 1179, 1185, 155 L.Ed.2d 108], quoting Harmelin v. Michigan (1991) 501 U.S. 957, 996-997 [111 S.Ct. 2680, 115 L.Ed.2d 836] (Kennedy, J., concurring in part and concurring in judgment).) Ewing noted that "[r]ecidivism has long been recognized as a legitimate basis for increased punishment." (Ewing, supra, at p. 1188.) In considering the constitutionality of the defendants sentence of 25 years to life in prison under Californias three strikes law, Ewing noted the defendant was convicted of felony grand theft for stealing three golf clubs worth about $1,200. (Id. at p. 1189.) Although grand theft is a "wobbler" offense that can be treated as either a felony or a misdemeanor, the trial court did not exercise its discretion to treat it as a misdemeanor. (Ibid .) Considering the gravity of the defendants instant offense and his long history of felony recidivism, the court concluded the defendants sentence was not grossly disproportionate and therefore did not constitute cruel and unusual punishment under the Eighth Amendment of the United States Constitution. (Id . at pp. 1189-1190.) The court stated: "[The defendants sentence under the three strikes law] reflects a rational legislative judgment, entitled to deference, that offenders who have committed serious or violent felonies and who continue to commit felonies must be incapacitated." (Id. at p. 1190.)

Under the compulsion of Ewing, we conclude Gordons sentence under the three strikes law is not grossly disproportionate to his three instant offenses and therefore does not constitute cruel and unusual punishment under the Eighth Amendment of the United States Constitution. Gordons instant offenses were egregious, involved violence, and posed a substantial danger to society. Furthermore, he has a long criminal history of egregious offenses, making him an appropriate candidate for sentencing under the three strikes law. He repeatedly has committed serious offenses for which he has been imprisoned six times and has violated his probation and parole. The fact that Gordon was not the shooter in the instant offenses does not persuade us that his participation in the offenses was sufficiently passive to make his sentence grossly disproportionate. Unlike the grand theft offense in Ewing, Gordons instant assault offenses involved violence that resulted in injuries to his three victims.

DISPOSITION

The judgment is affirmed.

WE CONCUR: HUFFMAN, Acting P. J., AARON, J.


Summaries of

People v. Gordon

Court of Appeals of California, Fourth District, Division One.
Nov 3, 2003
No. D041336 (Cal. Ct. App. Nov. 3, 2003)
Case details for

People v. Gordon

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. KENT GORDON, Defendant and…

Court:Court of Appeals of California, Fourth District, Division One.

Date published: Nov 3, 2003

Citations

No. D041336 (Cal. Ct. App. Nov. 3, 2003)