Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court for the County of Los Angeles No. TA074561, Paul Bacigalupo, Judge.
David L. Polsky, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson and Corey J. Robins, Deputy Attorneys General, for Plaintiff and Respondent.
PERLUSS, P. J.
A jury convicted Hollie Jones of one count of possession of a firearm by a felon and found true the special allegation he had suffered two prior serious or violent felony convictions within the meaning of the “Three Strikes” law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subs. (a)-(d)). On appeal Jones contends the trial court’s instructions to the jury to continue deliberating effectively coerced a dissenting juror to abandon her independent assessment in order to reach a verdict on the prior strike allegations. He also contends the court abused its discretion in denying his request to dismiss one of his prior strike convictions and his sentence of 25 years to life constitutes cruel and/or unusual punishment in violation of the United States and California Constitutions. We affirm.
Statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
An amended information charged Jones with two counts of possession of a firearm by a felon (§ 12021, subd. (a)(1)) and two counts of assault with a firearm. It was also alleged Jones had suffered two prior serious or violent felony convictions within the meaning of the Three Strikes law. The jury convicted Jones of one count of possession of a firearm by a felon, but was unable to reach a decision on the remaining counts; the court declared a mistrial as to those counts.
The additional allegations that Jones had inflicted great bodily injury and had personally used a firearm, made in connection with the two assault counts, were included in the court’s mistrial declaration.
In a bifurcated proceeding concerning the special allegations that Jones had suffered two prior strike convictions, the prosecutor presented records of Jones’s prior incarcerations in accordance with section 969b (authorizing use of prison records as evidence to prove fact of prior conviction) along with Jones’s fingerprints, his photograph and abstracts of judgment. After an hour of deliberations on the prior conviction allegations, Juror No. 12 requested to be replaced, explaining that, unlike the other jurors, she felt she needed more information to determine whether Jones had actually suffered the alleged prior convictions. Juror No. 12 told the court, “I work with paper all the time, and that’s the reason why I voted the way I did, because I know how errors can come about, but, you know, in order for me to go their way, I need to know more, you know. For me, I need to know more about the cases that this man was accused of, more about everything.” The court responded, “Ma’am, first of all, do you understand that’s not your role, to know more about the cases? It’s your role to determine whether or not, in fact, two convictions took place. Nothing more, nothing less. Do you understand that?” Juror No. 12 replied, “[T]hat’s what I did and that’s . . . the reason why I asked to be replaced because they, they’re ready to go, and I’m, I have a block here with what I’m just telling you, the information I’m giving you.” The court responded, “Well, all right. Let’s see if we can give you further thought on that so you can get an unblock on it.” When Juror No. 12 asked the court what it had meant by its remark, the court explained, “We’re going to send you back there. Let’s bring the jury out, and we’ll have them go back and do some more work.” When the jury came in, the court inquired as to the vote and was told the division was 11 to one. The court then instructed the jury, “You need to do some more work. So continue in the back and continue your work.” After deliberating an additional 45 minutes, the jury returned its verdict, finding true the allegations Jones had suffered two prior strike convictions.
DISCUSSION
1. The Trial Court’s Instruction To Continue Deliberating Was Not Improper
Jones asserts the court’s statement, “Let’s see if we can give you further thought on that so you can get an unblock on it,” along with its instruction to the jury to continue its deliberations, improperly coerced the dissenting juror to reach a verdict. In People v. Gainer (1977) 19 Cal.3d 835 (Gainer) the Supreme Court held a trial court’s instruction to a deadlocked jury that the jurors in the minority rethink their position in light of the majority view and “consider that the case must at some time be decided” -- an Allen charge -- was inherently coercive because it suggested that minority jurors abandon their independent judgment for the sake of expediency and avoidance of retrial. (Id. at pp. 848-850.) The Gainer Court explained, when “‘holdout’ jurors are told that in reaching their independent conclusions as to whether or not a reasonable doubt of the defendant’s guilt exists, they are to weigh not only the arguments and evidence but also their own status as dissenters -- a consideration both rationally and legally irrelevant to the issue of guilt [--] [t]hey are thus deflected from their proper role as triers of fact, as effectively as if they had been instructed to consider their doubts as to guilt in light of their own prejudices or desire to go home.” (Id. at p. 848, fn. omitted.) Because an Allen-type charge instructs the jury to consider “extraneous and improper factors,” has a “potentially coercive impact, and burdens rather than facilitates the administration of justice,” “further use of the charge [is] prohibited in California.” (Id. at pp. 842-843.)
In Allen v. United States (1896) 164 U.S. 492 [17 S.Ct. 154, 41 L.Ed. 528]) the United States Supreme Court approved a jury instruction encouraging minority jurors to reexamine their views in light of the views expressed by the majority, noting that a jury should consider that the case must at some time be decided. This and similar instructions are frequently referred to in our jurisprudence as an “Allen charge.” (See Gainer, supra, 19 Cal.3d at p. 842.)
In the three decades since Gainer, supra, 19 Cal.3d 835, the standards for a trial court’s instructions to a deadlocked jury to continue its deliberations have become well settled: The trial court may ask jurors to continue deliberating, despite a deadlock, where, “in the exercise of its discretion, it finds a ‘reasonable probability’ of agreement.” (See § 1140; People v. Pride (1992) 3 Cal.4th 195, 265; People v. Sheldon (1989) 48 Cal.3d 935, 959-960; People v. Rodriguez (1986) 42 Cal.3d 730, 775.) In exercising its discretion to order further deliberations, however, the court must avoid coercing dissenting jurors to displace their independent judgment “‘in favor of considerations of compromise and expediency.’” (People v. Breaux (1991) 1 Cal.4th 281, 319; see also Pride, at p. 265.)
Section 1140 provides: “Except as provided by law, the jury cannot be discharged after the cause is submitted to them until they have agreed upon their verdict and rendered it in open court, unless by consent of both parties, entered upon the minutes, or unless, at the expiration of such time as the court may deem proper, it satisfactorily appears that there is no reasonable probability that the jury can agree.”
Here, after one hour of deliberations, Juror No. 12 explained she was “blocked” and required more information about Jones’s prior convictions that were alleged to be strikes. The court’s comment, “Let’s see if you can get an unblock on it,” along with its order to resume deliberations, followed an appropriate clarification of the issue to be decided (whether prior convictions had occurred for the identified offenses) and the evidence the juror was permitted to consider in making that determination. When viewed in context, the court’s comment, while perhaps not artfully worded, was simply a direction to continue deliberating with the court’s clarification of the law in mind. The court never told Juror No. 12 or the jury, either expressly or impliedly, she or it was required to reach a verdict, never indicated the case must be decided at some time and did not impose a time limit or otherwise suggest the dissenting juror abandon her position and accede to the majority. (See People v. Pride, supra,3 Cal.4th at p. 265 [instruction to jury, which had been deadlocked at 11 to one for days, to “continue deliberating” was not inherently coercive as “jury was never told it must reach a verdict, nor were any other constraints placed on their deliberations”]; People v. Breaux, supra, 1 Cal.4th at p. 319; People v. Miller (1990) 50 Cal.3d 954, 994; People v. Sheldon, supra, 48 Cal.3d at p. 958.) On this record, the trial court’s direction to the jurors to continue deliberations was well within its discretion.
2. The Trial Court Did Not Err in Denying Jones’s Motion to Dismiss a Prior Qualifying Strike Conviction
Jones contends the trial court erred in refusing his request to dismiss at least one of his two prior serious or violent felony convictions, which qualify as strikes under the Three Strikes law. Section 1385, subdivision (a), vests the court with discretion to dismiss a prior conviction, including a qualifying strike conviction, “in furtherance of justice.” (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529-530; People v. Williams (1998) 17 Cal.4th 148, 158.) “[I]n ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law . . . or in reviewing such a ruling, 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 [Three Strikes] 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.” (Williams, at p. 161.)
We review the trial court’s refusal or failure to dismiss a prior strike allegation under section 1385 for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 376; see Romero, supra,13 Cal.4th at p. 530.) “[T]he three strikes law not only establishes a sentencing norm, it carefully circumscribes the trial court’s power to depart from this norm and requires the court to explicitly justify its decision to do so. In doing so, the law creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper. [¶] . . . [¶] . . . ‘[I]t is not enough to show that reasonable people might disagree about whether to strike one or more’ prior conviction allegations. [Citation.] . . . Because the circumstances must be ‘extraordinary . . . by which a career criminal can be deemed to fall outside the spirit of the very scheme within which he squarely falls once he commits a strike as part of a long and continuous criminal record, the continuation of which the law was meant to attack’ [citation], the circumstances where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme must be even more extraordinary.” (Carmony, at p. 378.)
Jones was convicted of robbery and assault with a firearm in 1989, two qualifying felonies under the Three Strikes law. He was convicted in 1990 for being a felon in possession of a firearm, the same offense for which he has been convicted in the instant case. The trial court considered the appropriate factors identified in People v. Williams, supra, 17 Cal.4th at page 161, and People v. Carmony, supra, 33 Cal.4th at page 378, and concluded that nothing in Jones’s history or background suggested the kind of “extraordinary circumstances” that would exempt him from the spirit and intent of the Three Strikes law. (Carmony, at p. 378.) That determination was well within the trial court’s discretion.
3. Jones’s Sentence of 25 Years to Life Does Not Violate the Federal or State Constitutions’ Prohibitions Against Cruel and/or Unusual Punishment
Jones contends his sentence of 25 years to life for being a felon in possession of a firearm violates the prohibition against cruel and unusual punishment in the United States Constitution and the prohibition against cruel or unusual punishment in the California Constitution.
Federal courts have consistently rejected claims that life terms imposed on recidivists like Jones violate the ban on cruel and unusual punishment contained in the Eighth Amendment to the United States Constitution. (Ewing v. California (2003) 538 U.S. 11, 29 [123 S.Ct. 1179, 1189-1190, 155 L.Ed.2d 108] [“In weighing the gravity of [defendant’s] offense, we must place on the scales not only his current felony, but also his long history of felony recidivism. Any other approach would fail to accord proper deference to the policy judgments that find expression in the legislature’s choice of sanctions”]; Lockyer v. Andrade (2003) 538 U.S. 63, 77 [123 S.Ct. 1166, 1174, 155 L.Ed.2d 144]; Harmelin v. Michigan (1991) 501 U.S. 957, 965 [111 S.Ct. 2680, 115 L.Ed.2d 836]; Rummel v. Estelle (1980) 445 U.S. 263, 284 [100 S.Ct. 1133, 63 L.Ed.2d 382].) Neither Jones’s prior criminal history nor the nature of his current offense warrants a different conclusion in this case.
California appellate courts likewise have consistently rejected claims that sentences imposed under recidivist statutes violate the prohibition against cruel or unusual punishment contained in the California Constitution. (People v. Cooper (1996) 43 Cal.App.4th 815, 820, 826-827; People v. Kinsey (1995) 40 Cal.App.4th 1621, 1630-1631.) Under state law Jones must overcome a “considerable burden” in challenging his penalty as cruel or unusual (People v. Wingo (1975) 14 Cal.3d 169, 174), demonstrating that the punishment is so disproportionate to the crime for which it was imposed it “shocks the conscience and offends fundamental notions of human dignity.” (In re Lynch (1972) 8 Cal.3d 410, 424.) In assessing these claims the Lynch Court identified three factors for reviewing courts to consider: (1) the nature of the offense and the offender; (2) how the punishment compares with punishments for more serious crimes in the jurisdiction; and (3) how the punishment compares with the punishment for the same offense in other jurisdictions. (Id. at pp. 425-427.)
The first prong of the Lynch test does not support a finding of disproportionality. Jones is a third-strike defendant whose prior convictions include (but are not limited to) one for robbery and one for assault with a firearm. Jones also suffered a prior conviction in 1990 for being a felon in possession of a firearm, the same offense for which he has been convicted in the instant case. When the nature of the offense and offender is considered, Jones’s sentence is neither shocking nor inhumane. (See, e.g., People v. Dillon (1983) 34 Cal.3d 441, 479, 482-488 [determinations whether a punishment is cruel or unusual may be based solely on the nature of the offense and offender]; People v. Weddle (1991) 1 Cal.App.4th 1190, 1198-1200.)
Jones’s assertion that his current offense of being a felon in possession of a firearm was a relatively minor and “victimless” offense is not well taken. Although not enumerated in the Three Strikes law as a qualifying “violent or serious” offense, the crime of being a felon in possession is of no small concern, particularly in this case, in which Jones has a history of assaultive behavior using a firearm. “[T]he California Legislature views the possession of a handgun by an ex-felon to be a serious offense. The intent underlying section 12021, subdivision (a), was to limit the use of instruments commonly associated with criminal activity and to minimize the danger to public safety arising from the free access to firearms that can be used for crimes of violence. [Citation.] The law properly presumes the danger is greater when the person possessing the firearm has previously been convicted of [a] felony.” (People v. Cooper, supra, 43 Cal.App.4th at pp. 824-825.)
As to the second and third prongs of Lynch, Jones observes that he will not be eligible for parole until he reaches the age of 70, which, according to Jones (relying on data from the Center for Disease Control), “exceeds the average life expectancy of 69.8 years” for an African-American male. Jones insists that his sentence, therefore, essentially amounts to life without the possibility of parole, a sentence far greater than those imposed in California for more serious crimes and more excessive than he would likely receive in many other jurisdictions that require the triggering offense itself to be either violent or serious. As we have explained, however, Jones is being punished for both his current offense and his prior criminal behavior under a California statutory scheme that expressly mandates more severe punishment for habitual criminals. Statutory schemes mandating increased punishment for recidivists have long withstood challenges on the ground they constitute cruel or unusual punishment. (See, e.g., People v. Cooper, supra, 43 Cal.App.4th at pp. 826-827; People v. Kinsey, supra,40 Cal.App.4th at pp. 1630-1631; People v. Cartwright (1995)39 Cal.App.4th 1123, 1134-1137.) Additionally, the fact a sentence may exceed a defendant’s life expectancy, even assuming the accuracy of Jones’s data, does not alone render the sentence constitutionally cruel or unusual. (People v. Byrd (2001) 89 Cal.App.4th 1373, 1382-1382.)
In sum, Jones has not demonstrated his case is that “exquisite rarity” where the sentence is so harsh as to shock the conscience or offend fundamental notions of human dignity. (See People v. Kinsey, supra, 40 Cal.App.4th at p. 1631.) Accordingly, there is no basis to find the sentence unconstitutional under either the United States or California Constitutions. (Lockyer v. Andrade, supra, 538 U.S. at p. 77; People v. Cooper, supra, 43 Cal.App.4that pp. 826-827.)
DISPOSITION
The judgment is affirmed.
We concur: JOHNSON, J. WOODS, J.