Opinion
C040675.
10-23-2003
THE PEOPLE, Plaintiff and Respondent, v. WILLIS LEE JOHNSON, Defendant and Appellant.
A jury convicted the defendant of first degree burglary and receiving stolen property (as an alternative charge to a second count of burglary). The superior court subsequently sustained various recidivist allegations. (Pen. Code, §§ 459/460, 496, subd. (a), 667, subds. (a), (c), (d).) The court then sentenced the defendant to state prison for a minimum indeterminate life sentence of 37 years, after exercising its discretion to strike some recidivist enhancements as to one count. (Pen. Code, § 1385; People v. Superior Court (Romero) (1996) 13 Cal.4th 497.)
The defendant contends the trial court erred in admitting evidence of other "bad acts" and in refusing special limiting instructions. He also contends that the length of his sentence is unconstitutional. We shall affirm.
FACTS
Responding to a call from a neighbor (who was himself the victim of a burglary a few days earlier), the police apprehended the defendant inside the apartment of the second victims. He had socks on his hands, and an airbrush and two screwdrivers in his pocket. The apartment was in disarray; several of the belongings of the second victims were in a bag of cat food (the original contents of which were strewn across the bottom of a closet), but nothing was missing from the apartment. The second victims saw that their air brush was on the floor next to two screwdrivers. As the police placed the defendant under arrest, the apartment complexs groundskeeper identified him as a neighbor of the victims. Although it had originally required some effort to subdue the defendant, the arresting officers described him as becoming docile. He did not appear to them to be inebriated, incoherent, or otherwise disoriented.
The conviction for receiving stolen property related to the first victim.
The defendants wife arrived home while the police were still in the process of arresting him. She invited an officer to come with her to their apartment while she looked for anything that she did not recognize as belonging to them. She collected a pile of 13 items, which the police booked into evidence. The police were never able to connect any of these items with other crimes. At trial, while she admitted being suspicious of the origin of these and other unfamiliar items in the apartment, she denied being aware that they were stolen property because the defendant often brought home broken devices that he had found, which he would repair. The defendant claimed all the items belonged to him, which he bought at auctions or found discarded.
The defendants wife found a pawn ticket in the pocket of a pair of the defendants pants that bore the date of the burglary of the first victims apartment. At the pawn shop, she learned that it was a receipt for a ring belonging to the first victim. She notified the first victim, who was eventually able to retrieve the ring. A few days later, she again called him about finding a couple of other of his belongings in her apartment.
At trial, the defendant and his wife painted a picture of his need for psychotropic medication, his increasing reliance on pain medications after a work-related accident, his inability to control his diabetes, and a history of increasingly frequent blackouts. He claimed to have no memory of either burglary or of going to the pawn shop. On the date of his arrest, he recalled taking some medication and lying on his sofa, after which he found himself in jail. The defendants expert offered the opinion that the defendant was unconscious at the time of the burglaries as a function of his various impairments and medications, and an observer would not necessarily be able to discern a fugue state. A workers compensation physician, who had met with the defendant on the day of the first burglary, did not notice anything unusual about the defendants mental state during the visit, and the defendant had never complained about losses of consciousness.
DISCUSSION
I
The defendant contends the trial court should not have admitted the evidence regarding the items retrieved from the defendants apartment that did not belong to either victim. He argues this evidence was not admissible pursuant to Evidence Code section 1101, and the court should have excluded it as being significantly more prejudicial than probative (Evid. Code, § 352).
In pertinent part, the statute prohibits the introduction of "evidence of a persons character . . . in the form of . . . evidence of specific instances of . . . conduct . . . to prove . . . conduct on a specified occasion," except when "relevant to prove some fact" (such as intent) other than the "disposition to commit such an act."
Further undesignated section references are to the Evidence Code.
In support of admitting this evidence, the prosecutor argued that "it goes to reasonable doubt towards his defense [that h]e doesnt have any criminal intent. He has all kinds of stolen stuff in his house . . . ." Defense counsel argued that the entire line of questioning regarding these other items should cease because it improperly assumed that the items were stolen. The court stated only, "I think it comes in under 1101(b), we can put the further statement on the record afterwards." After the witness completed his testimony, the court stated for the record, "The People were offering those items under 1101(b) . . . on the issue of intent, even though . . . they are not going to be able to offer any proof that those items were stolen items. [¶] The objection was relevance and also 352. I do find there is some relevance, and they would be admissible under 1101(b). [¶] Applying 352, I find that the prejudice is not undue, and doesnt outweigh the probative value, particularly in view of the defense of no specific intent."
The defendant asserts there is insufficient foundation for this evidence to prove the purported intent. We need not belabor the issue. It is not reasonably probable that exclusion of the evidence would have affected the result of the trial. The sole issue was whether the defendant was conscious of his actions. The introduction of marginal evidence of additional criminal activity would have no bearing on resolving the issue if the jury had credited the defense, because there was nothing to refute the same defense as applied to the other items. We therefore do not find any basis for reversal, even if it was error to admit the evidence.
II
During his testimony, the defendant acknowledged that he had convictions in 1982, 1984, and 1993 for committing "felon[ies] involving moral turpitude." In response to a question from a juror during the trial, the court explained that "moral turpitude is a legal term . . . used to distinguish certain kinds of criminal offenses that are deemed to reflect adversely on a persons veracity or honesty. So that testimony was received for that purpose. [¶] . . . [¶] The fact that a witness has been convicted of a felony . . . may be considered by you only for the purpose of determining the believability of that witness. [¶] The fact of a conviction does not necessarily destroy or impair a witnesss believability. It is one of the circumstances that you may take into consideration in weighing the testimony of that witness."
The court refused defense counsels request for a special limiting instruction in which he quoted People v. Mason (1991) 52 Cal.3d 909. This is not a recommended approach to instructions. (People v. Ramirez (1974) 40 Cal.App.3d 347, 355.) The court did, however, make use of the pattern instruction on the limited effect of evidence of prior convictions admitted for impeachment, which it had used earlier in responding to the jurors question.
The proposed instruction provided in pertinent part, "you are cautioned that, `[e]vidence of "other crimes" carries a risk of prejudice for two reasons. First, such evidence can tempt [you] to identify a defendant as the wrongdoer illogically, simply because he has committed prior similar crimes. Second, such evidence can tempt [you] to convict in order to punish a defendant for the uncharged offenses." (Brackets in original.)
The defendant contends it was error to refuse his special instruction. To the contrary, the trial court correctly refused the instruction, because it is both cumulative and argumentative. (People v. Farmer (1989) 47 Cal.3d 888, 913-914.) We also reject the defendants effort to premise ineffective assistance of trial counsel on the failure to offer an unspecified "better" special instruction, if for no other reason than this argument fails to show how he could have achieved a more favorable result in the absence of the posited ineffectiveness. (People v. Ledesma (1987) 43 Cal.3d 171, 215, 217-218.)
III
The court made use of the pattern instruction to view evidence of an oral admission with caution. It rejected defense counsels special "amplification" of the pattern instruction with language from People v. Gardner (1961) 195 Cal.App.2d 829 that explained the basis for this principle, finding the additional information to be cumulative.
In relevant part, the proposed instruction provided, "The reason for the rule . . . is that[] `This kind of testimony is considered dangerous, first, because it may be misapprehended by the person who hears it, secondly, it may not be well remembered, thirdly, it may not be correctly repeated."
The defendant again contends this was not only error, but reversible error. However, the legal bases for an admonitory instruction on a type of evidence are not necessary to a jurys performance of its task in evaluating the evidence. As we stated nearly a century ago, "The court is required to state to the jury the law, not the reasons for its enactment . . . ." (People v. Smith (1910) 13 Cal.App. 627, 632.) The trial court thus properly excluded the amplification. Moreover, the absence of the amplification did not prevent defense counsel from explaining these same principles in his closing argument, if he indeed felt they were essential to the defense. (Walbrook Ins. Co. v. Liberty Mutual Ins. Co. (1992) 5 Cal.App.4th 1445, 1462.)
IV
The defendant contends his indeterminate life sentence with a minimum term of 37 years for minor nonviolent offenses violates constitutional provisions against cruel and unusual punishment. He raised the issue in the trial court by means of a motion to recall the sentence, which the court denied.
To determine if a sentence is cruel or unusual under the state Constitution, we must evaluate it under three criteria: the nature of the offense and the offender (with particular attention to the degree of danger each presents to society), a comparison of the sentence with those for comparable offenses under California law (which focuses on a defendants recidivism and not just the current offense), and a comparison of the sentence with those in other states (which for purposes of Californias recidivist statutes avails a defendant nothing). (In re Lynch (1972) 8 Cal.3d 410, 425-427; People v. Martinez (1999) 71 Cal.App.4th 1502, 1510-1516; People v. Cline (1998) 60 Cal.App.4th 1327, 1337-1338.)
The federal charter proscribes cruel and unusual punishment, a standard distinct from California law. (People v. Anderson (1972) 6 Cal.3d 628, 636-637.) The sole criterion, with which the United States Supreme Court continues to wrestle, is the proportionality of the sentence to the offender and the offense. (Solem v. Helm (1983) 463 U.S. 277, 290-291, 292, 293 [analysis includes comparison of punishment with nature of offense and offender]; Harmelin v. Michigan (1991) 501 U.S. 957, 1004-1005 (conc. opn. of Kennedy, J.) [affirming validity only of this element of Solems methodology]; id. at pp. 1018-1019 (dis. opn. of White, J.) [affirming validity of entirety of Solem]; Ewing v. California (2003) 538 U.S. ___, ___ [155 L.Ed.2d 108, 119] (opn. of OConnor, J.) [affirming validity of Kennedy opinion in Harmelin]; id. at p. ___ (dis. opn. of Breyer, J.) [assuming same arguendo].) As this generally overlaps Californias first criterion, it does not warrant separate analysis, beyond noting that a minimum indeterminate life sentence of 25 years for a nonviolent theft offense does not violate federal constitutional principles where the offender has a lengthy record (Ewing, supra, 538 U.S. at p. ___ [155 L.Ed.2d at pp. 122-123]), and we cannot discern a constitutionally significant distinction for a minimum term of 37 years. (See also Lockyer v. Andrade (2003) 538 U.S. ___, ___ [155 L.Ed.2d 144, 153, 158-159] [habeas will not lie because state court conclusion that minimum indeterminate life sentence of 50 years for petty thefts is constitutional is not objectively unreasonable].)
The defendant moors his argument to a rotten piling: there is no constitutional obstacle to punishing a "current minor crime" with a minimum term of 37 years. The argument unpersuasively isolates the significance of his prior criminal history from his present offenses, and depicts the defendant as a rehabilitated felon whom a workplace injury and other factors waylaid. His recidivism is, in point of fact, lengthy and significant. It begins in 1976, when he was 18. Six convictions for theft, burglary, and receiving stolen property followed hard upon each other until he finally received a state prison sentence of two years in 1982. In 1984, he received another prison term for his involvement in an armed robbery. In 1987, he committed an act of domestic violence. In 1993, he returned to prison for a nine-year term for burglary. Moreover, while appellate counsel may minimize the impact of an unsuccessful burglary and the receipt of items of minor value from another burglary, these are crimes that are nonetheless highly disturbing to most people, and which pose risks to the homeowner unfortunate enough to accost a burglar. They are hardly de minimis or a technical violation of the law, as in People v. Cluff (2001) 87 Cal.App.4th 991, 1004. Even if the defendants current behavior has its genesis in factors beyond his control, society is not compelled to gamble that the defendant might in the future conquer his demons and forsake the criminal habits of a lifetime. His iterated refusals to conform his behavior to social strictures and the risk he presently poses both merit an extended commitment for the protection of others. His prison term, consequently, is not among the rare instances (People v. Weddle (1991) 1 Cal.App.4th 1190, 1196) in which the judiciary may override the legislative pronouncement of appropriate punishment.
DISPOSITION
The judgment is affirmed.
We concur: RAYE, J., and ROBIE, J.