Opinion
C057408
7-9-2009
THE PEOPLE, Plaintiff and Respondent, v. RONALD KENT, Defendant and Appellant.
Not to be Published
After defendant Ronald Kent pled no contest to misdemeanor child endangerment and possession of child pornography, a jury convicted him of felony possession of a firearm by a convicted felon. (Pen. Code, §§ 273a, subd. (b), 311.3, subd. (a), 12021, subd. (a)(1).) The trial court sustained allegations that defendant had three prior convictions that qualified as strikes. (Pen. Code, §§ 667, subds. (b)-(i), 1170.12.) The trial court sentenced defendant to prison for 25 years to life for the felony under the "three strikes" law, and imposed concurrent jail terms for the two misdemeanors. Defendant timely filed this appeal.
Defendant contends the trial court should have granted his suppression motion because the warrantless search of his apartment was not justified, the felon-in-possession statute violates his Second Amendment right to bear arms, the trial court should have granted his motion to strike his prior convictions, and his sentence violates the Eighth Amendment. We shall affirm the judgment.
FACTS
On June 23, 2006, peace officers found two operable .22-caliber rifles and .22-caliber ammunition in defendants apartment. The parties stipulated that defendant was a convicted felon and that his wife had died on September 23, 2005, while living with defendant at the apartment where the rifles were found. In argument, defense counsel tried but failed to raise a doubt about whether defendant possessed the rifles.
DISCUSSION
I. Suppression Motion
Defendant moved to suppress evidence, contending the warrantless entry into his home was unlawful. The People argued the search was a lawful welfare search.
The facts from the suppression hearing are as follows.
Sacramento County Deputy Sheriff Sergeant Linda OConnor testified that at 12:03 p.m. on June 23, 2006, she headed to defendants apartment to investigate a report that a white male registered sex offender was with "three young black females." Sergeant OConnor called the complainant, Cheryl G., who identified herself as a postal worker. G. identified defendant by name and told Sergeant OConnor that she was familiar with defendant because she delivers mail in the area and had seen his picture "on the Megans [Law] website." G. told the officer she saw defendant exit his van with three small children and go into his apartment. G. was on duty and contacted her supervisor, who told her to call the sheriffs department. Dispatch confirmed that "Ronald Kent" lived at that address. G. told Sergeant OConnor that defendants van was no longer at that location.
Sergeant OConnor arrived at the apartment at 12:18 p.m. and decided to confirm whether any children were still in the apartment, as she was concerned for their safety. She knocked on a security gate but received no answer, so she walked around the outside of the unit, tapping on windows. As she walked along a fence, she came to a stop on the sidewalk and could see, through the fence, a young black girl in the backyard. The girl told her she was there with her two younger siblings, that there were no adults inside, and that she was visiting her "grandfather" to clean his apartment, but he had left. Sergeant OConnor thought the girl was under 10 years old and was concerned about her being left alone. She asked the girl to open the security gate so she could talk to the other children. The security gate opened to a common hallway, which led to the front door of defendants apartment. When the girl came out to open the security gate, Sergeant OConnor could see through the open door of the apartment and "could see at least one other smaller child that I believed to be under the age of three crawling around on the floor just inside the threshold of the apartment. [A]nd just general clutter from that point of view into the apartment." When she went through the security gate but before entering the apartment, Sergeant OConnor could see a coffee table, at the base of which were "a number of prescription bottles sitting just off of the ground, and that there was [sic] some miscellaneous beer cans and things, just a lot of clutter and unkemptness was my first view into the apartment." The first girl she had spoken with said she was eight, and that her brother was four and her sister was three; the oldest told Sergeant OConnor that she was responsible for the other two children.
Sergeant OConnor was concerned because, without any adults around, the children had access to pill bottles, "several sharp objects, empty beer cans, and what I believed to be a broken knife blade laying [sic] in an ashtray[.]" She also saw an "asthma type inhaler" on the floor and another on a table. There was an "overwhelming amount of garbage and clutter at floor level and at seating areas."
Sergeant OConnor made "a very brief cursory sweep through the residence," then "regrouped with these children right near the front door" and called for assistance because she was not able to properly check the other rooms and could not leave the children unattended.
When Deputy Justin Rinkert arrived, Sergeant OConnor asked him to "sweep the residence for additional victims or suspects," advising him "for officer safety reasons I had not been able to clear the residence." She stayed with the children, which meant, "unfortunately," that Deputy Rinkert had "to search on his own without a cover officer."
Deputy Rinkert testified the apartment was cluttered, and he, too, saw "bottles of medication on the floor in the living room" and a knife blade, an inhaler, lighters, and beer cans on the coffee table in the living room. As he checked the bedrooms to see if anyone was present, he saw in plain sight a fixed-blade knife in one bedroom and a gun case in the other, as well as a BB gun on the bed. In a closet he saw more gun cases.
Defendant arrived at 1:48 p.m. Sergeant OConnor told him he was going to be arrested for felony child endangerment. He said "he knew he wasnt supposed to have the small children there." She asked him if he would allow her to look at a computer that was turned on, "on a screen saver mode." Defendant gave verbal consent and also signed a consent form to allow the authorities to examine his computer. Sergeant OConnor then moved the mouse attached to the computer and "it popped up to a visual screen of sites, and then just at random [she] selected a site."
Although not relevant to the suppression issue, what Sergeant OConnor found on defendants computer led to the child pornography charge defendant later admitted.
Defense counsel argued there was no emergency justifying entry into defendants apartment. Assuming the "community caretaker" exception applied, Sergeant OConnor exceeded the scope necessary to ensure the safety of the children because she could have had the children come outside, obviating the need to enter the apartment. Assuming she had the right to enter the apartment, Sergeant OConnor had no reason to conduct a sweep because she had no reason to think anyone else was present. Once Deputy Rinkert verified that nobody else was present, his further actions were investigative, not protective. Counsel argued that keeping the children in the apartment was inconsistent with the claim of danger.
The trial court denied the motion, finding the officers acted for the purpose of protecting the welfare of the children, not to investigate possible criminality. Further, it was reasonable for Deputy Rinkert to "sweep" the apartment, and in doing so he saw rifle cases in plain sight. Because of the purpose of gun cases, it was lawful for other officers to look inside them on this occasion. It was reasonable for Sergeant OConnor to wait with the children in the apartment rather than try to move them. Defendants consent was voluntary.
On appeal, defendant contends his motion to suppress should have been granted. He also asserts that if his challenge was not preserved for appeal, his trial counsel was incompetent, but the People do not dispute that the points raised on appeal were preserved by trial counsel. We reject defendants contention on the merits, finding the trial court ruling is sustained by the record at the suppression hearing.
"In reviewing the denial of a motion to suppress evidence, we view the record in the light most favorable to the trial courts ruling and defer to its findings of historical fact, whether express or implied, if they are supported by substantial evidence. We then decide for ourselves what legal principles are relevant, independently apply them to the historical facts, and determine as a matter of law whether there has been an unreasonable search [or] seizure." (People v. Miranda (1993) 17 Cal.App.4th 917, 922.)
A warrantless search inside the home is presumptively unreasonable. (Welsh v. Wisconsin (1984) 466 U.S. 740, 748-749 [80 L.Ed.2d 732, 742].) A warrant is required unless the exigencies of the situation make the needs of law enforcement so compelling that a warrantless search is objectively reasonable. (Mincey v. Arizona (1978) 437 U.S. 385, 393-394 [57 L.Ed.2d 290, 301].) One type of exigent circumstance is an emergency situation requiring swift action to prevent imminent danger to life. (People v. Ormonde (2006) 143 Cal.App.4th 282, 292.) This has been called the "`emergency aid" exception. (Brigham City v. Stuart (2006) 547 U.S. 398, 401 [164 L.Ed.2d 650, 656].) Under this exception, "police officers may enter a home to render emergency assistance when they have an objectively reasonable basis to believe someone inside is seriously injured or imminently threatened with such injury." (People v. Gemmill (2008) 162 Cal.App.4th 958, 960 (Gemmill).)
We have discussed the emergency aid exception in two recent cases. In People v. Chavez (2008) 161 Cal.App.4th 1493 (Chavez), an officer was asked by Chavezs girlfriend to see if her vehicle was at their duplex, where their young son lived, because Chavez had taken it from her earlier that day. She told the officer she was afraid, based on past violence, and she told the officer she had seen a gun at the duplex six months before. Two officers went to the duplex and found her vehicle there, warm to the touch. They knocked and rang the bell but nobody answered. (Id. at pp. 1496-1497.) One "officer then walked along a concrete walkway in front of the residence that led a few feet over to a wooden fence flush with the front of the duplex and with no setback. The fence was approximately six feet high and the officer could see the top of a sliding glass door on the side of the residence. The officer then raised himself approximately three inches onto his tiptoes and shined his light into the sliding glass door. There were no lights on in the house. The officer then called for defendant again. [¶] At that point the officer noticed something shiny on the ground on the other side of the fence near the sliding door. He shined his flashlight down on the object and saw what appeared to be a cocked revolver." (Id. at p. 1497.)
We first concluded that the observation of the revolver by the officer looking over the fence was lawful because he used a walkway "impliedly open to the public" (Chavez, supra, 161 Cal.App.4th at p. 1500) and simply raised himself "onto his tiptoes" to look over the fence: this did not violate Chavezs reasonable expectation of privacy (id. at pp. 1500-1501). We then concluded that the possible presence of the young child made jumping the fence and securing the revolver reasonable: "By jumping the fence into defendants side yard to secure the revolver, Officer Leahy acted reasonably under the circumstances to protect both himself and the child he had reason to believe was in the residence. Moreover, the officers warrantless entry of the yard and seizure of the gun was `"strictly circumscribed by the exigencies which justif[ied] its initiation." [Citation.] He did not conduct any further search while in the yard and instead did no more than was necessary to eliminate the risk posed by the gun. Under these circumstances, we agree with the People that the warrantless intrusion into defendants side yard was justified by exigent circumstances." (Id. at p. 1503.)
In Gemmill, supra, 162 Cal.App.4th 958, officers found an unattended child wandering in a neighborhood and connected the child to a house. After knocking and receiving no answer, one of the officers "walked around the home until he came to a side window. From the window he saw an infant playing with a plastic bag near its face and a nonresponsive adult male." (Id. at p. 961.) We held that although the officer was not standing in a publicly accessible sidewalk and intruded into Gemmills privacy (id. at pp. 965-966), "the presence of the unattended child, combined with the lack of information regarding whether there were siblings or others in the house, was sufficient to justify Deputy Gassaways less intrusive look through defendants side window to determine if an emergency existed inside" (id. at p. 967). The look through the window "was proportional to the exigency" facing the officer. (Id. at p. 971.)
Defendant asserts no exigent circumstances justified the search in this case. We disagree. In this case, Sergeant OConnor tapped on windows (which she could not see through) and walked along a publicly-accessible sidewalk toward a fence, which she looked through. Under Chavez and Gemmill, Sergeant OConnors actions were lawful to that point.
Speaking with the child only increased Sergeant OConnors concerns about the safety of the children reportedly in defendants apartment. The fact the child was there, and said her younger siblings were there, corroborated the informants report, and the child also said that no adults were present. Sergeant OConnor properly asked the girl to open the security gate so she could talk to the other children. Once the girl opened the security gate, which led to a hallway leading to the front door itself, Sergeant OConnor could see into the apartment.
What Sergeant OConnor saw in the apartment, specifically children crawling around in filth with medication bottles and beer cans in reach, gave her ample cause to enter the apartment immediately in order to protect the children from imminent harm. But she was unable to watch three children and safely check the rest of the apartment to see if anyone else was present who might be in danger, or who might pose a danger. It was prudent for her to wait for Deputy Rinkert and continue watching the children while he cleared the apartment. While he was doing so, he saw the rifle cases. So far as the record shows, his sweep of the apartment was no more intrusive than necessary to insure no other child needed protection, and to insure there was nobody in the apartment who could pose a danger to the children or the officers. The officers acted "proportional to the exigency" facing them. (Gemmill, supra, 162 Cal.App.4th at p. 971; see Chavez, supra, 161 Cal.App.4th at p. 1503 [officer "did no more than was necessary to eliminate the risk"].)
Defendant views the evidence in his favor, stating that all Sergeant OConnor knew was that the child outside was "healthy," the apartment was "cluttered," and all she had to do if she were truly concerned was take the children into "protective custody" from the threshold, without entering the apartment. But defendant does not explain how Sergeant OConnor would be able to coax all three children outside the apartment by herself without entering the apartment, and minimizes the evidence of active dangers in the apartment, specifically pill bottles, beer cans, and other debris, and does not explain how Sergeant OConnor could be sure only three children were at risk without checking the apartment for other children.
In a somewhat confusing passage, defendant faults Sergeant OConnor because she "wrongly assumed" it was unlawful for defendant to be in the presence of minors and because she "unreasonably relied on the legal conclusions of a postal worker, and failed to verify information about [defendants] status," and therefore she could not have acted in good faith. The record does not support the claim that Sergeant OConnor relied on the legal views of the postal worker. And regardless of the terms of defendants sex offender status, the fact he was seen with three apparently unrelated young children and no other adult was a circumstance meriting further investigation. That merely began the chain of events that resulted in the observation of three endangered children in defendants apartment.
Because the search was lawful under exigent circumstances, we need not consider whether the so-called "community caretaker" exception, articulated in People v. Ray (1999) 21 Cal.4th 464, is either a viable exception or applies on these facts.
II. Second Amendment
Defendant claims Californias statute prohibiting convicted felons from possessing firearms violates his Second Amendment right to bear arms as articulated in District of Columbia v. Heller (2008) ___ U.S. ___ (Heller).
Heller itself states "nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons" or on other restrictions on the right. (Heller, supra, 171 L.Ed.2d at p. 678.) A recent California decision has rejected defendants claim, based on this passage of Heller. (People v. Flores (2008) 169 Cal.App.4th 568, 574; see also People v. Yarbrough (2008) 169 Cal.App.4th 303, 311-314 [Heller does not bar prosecution for carrying concealed weapon].) We agree that Heller does not support defendants contention of error.
III. Romero Motion
Defendant contends the trial court abused its discretion by denying his motion to strike a strike. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).) We disagree.
Defendants written Romero motion was filed before trial, when he was facing two strike allegations. The motion asked the trial court to strike one of them. This request, if granted, would have reduced defendants exposure from a sentence of 25 years to life to a doubling of the determinate term. (Pen. Code, § 667, subd. (e).) However, before trial the information was amended to allege a third strike, and three strikes were proven. Striking one strike would still leave defendant with two strikes and a 25-years-to-life sentence. Accordingly, at the sentencing hearing, new counsel asked the trial court to strike all of the strikes.
Defense counsel did not object to the facts stated in the probation report. (See People v. Evans (1983) 141 Cal.App.3d 1019, 1021 [failure to object to report waives claim of inaccuracy].) That report shows as follows: defendant was born in 1944. In 1963 he was convicted of felony burglary and felony forgery in Colorado and placed on probation. In 1965 he served 10 days in jail for reckless driving. In 1966 he was committed to Atascadero State Hospital as a mentally disordered sex offender after he molested a five-year-old boy. In 1971 defendant molested five children between the ages of six and eight, including one boy and four girls. He was convicted of three counts of child molestation. In 1979 defendant used alcohol and drugs to molest a 10-year-old boy and was convicted of child molestation. In 1982 defendant molested a six-year-old boy and was convicted of child molestation in 1983. In 1990 defendant was found in a vehicle with a rifle, a machete, and a pistol and was convicted of possession of a firearm by a convicted felon.
Defendants written Romero motion argued his last strike occurred in 1982 and his last conviction was in 1990. The motion alleged the current offense was "non-violent" and he merely possessed "his wifes unloaded rifles secured in gun cases in a closet." Since his last release from prison, defendant had been "continuously employed" and "most recently worked for four years at [a pharmacy] delivering medication to elderly patients."
The opposition, in part, noted that defendant violated parole in 1994 and 1995. At the hearing, defense counsel implicitly agreed with this fact, stating defendant had been "trouble free" for 12 years.
The trial court noted defendants criminal record dated back to 1963 and he had three separate child molestation cases leading to convictions. Although his last strike was over 20 years old, his last felony was in 1990, a possession of a firearm by a convicted felon charge, the same offense as in the instant case. The trial court found defendants record was "extremely disturbing" and showed that defendant "has had a lifelong sexual interest in children[.]" The trial court found the facts of the instant crime "also disturbing" because defendant had three "young vulnerable children" under his care, and child pornography on his computer, at the time of his arrest. The trial court found nothing "favorable or mitigating" about the facts or defendants prospects and declined to strike any strikes.
We review the trial courts denial of defendants Romero motion for an abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 376-377 (Carmony).) "The touchstone of the analysis must be `whether, in light of the nature and circumstances of his present felonies and prior serious [or] violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the schemes spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious [or] violent felonies. [Citations.]" (People v. Philpot (2004) 122 Cal.App.4th 893, 905.)
"It is not enough to show that reasonable people might disagree about whether to strike one or more of his prior convictions. Where the record demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the trial courts ruling, even if we might have ruled differently in the first instance. [Citation.]" (People v. Myers (1999) 69 Cal.App.4th 305, 310.) As a general matter, the "`striking of a prior serious felony conviction . . . is an extraordinary exercise of discretion, and is very much like setting aside a judgment of conviction after trial. [Citation.]" (People v. McGlothin (1998) 67 Cal.App.4th 468, 474.) Only in extraordinary circumstances will a career criminal be deemed to fall outside the schemes spirit. (Carmony, supra, 33 Cal.4th at p. 378.)
Defendant states the court "improperly focused on [defendants] remote priors, stating [defendants] background was `extremely disturbing." Defendants background, consisting of multiple child molestation cases as well as other crimes, is indeed extremely disturbing. Contrary to defendants view, his priors were not "remote." A prior is deemed remote when it is followed by a long crime-free period. (People v. Humphrey (1997) 58 Cal.App.4th 809, 813 ["Where, as here, the defendant has led a continuous life of crime after the prior, there has been no `washing out and there is simply nothing mitigating about a 20-year-old prior"].) Although defendants last conviction was in 1990, he violated parole in 1994 and 1995, meaning he only had a 12-year "trouble free" period, as his counsel acknowledged at the hearing. When measured against a criminal history dating back to 1963, that 12-year period does not make his priors remote.
Defendant contends the trial court failed to consider that he was "a working, contributing member of society" and "ought to have placed more weight on the non-violent nature of the present offenses and [defendants] current character." The contention is belied by the facts surrounding defendants current offenses. Defendant had child pornography sites on his computer, which he left on while three young children were alone in his apartment; the apartment was strewn with filth and there were sharp objects and pill bottles within reach of the children. He also had firearms in gun cases where the children could have reached them.
The fact defendant did not use the firearms does not mean the offense was entirely benign, or "non-violent," as he asserts. The purpose of Penal Code section 12021 is to protect public welfare by precluding the possession of guns by those who are more likely to use them for improper purposes, that is, convicted felons. (People v. Pepper (1996) 41 Cal.App.4th 1029, 1037 (Pepper).) Thus, while defendants rifles were not used, as a matter of law such possession carried the potential for violence. Defendants claim that the rifles had belonged to his deceased wife improperly views the evidence in his favor. It also ignores the fact that she died nine months before the search, giving him ample time to dispose of them lawfully. The fact he had a prior felony conviction for the same offense, possession of a firearm by a convicted felon, increases the gravity of the current circumstance, possessing two firearms in spite of knowing he was precluded from doing so. Further, based on the very nature of a three strikes sentence, where the current offense can be any felony, "the nonviolent or nonthreatening nature of the [current] felony cannot alone take the crime outside the spirit of the law." (People v. Strong (2001) 87 Cal.App.4th 328, 344.)
The fact, emphasized by defendant, that he is 63 years old is not remarkable given that his criminal record stretches back to 1963. In such a case, the trial court was not compelled to find age to be a mitigating factor.
Because defendant does not persuasively show that he falls outside the spirit of the three strikes law, we find the trial court acted within its discretion by denying his Romero motion.
IV. Eighth Amendment
Defendant contends his three strikes sentence is cruel and unusual within the meaning of the Eighth Amendment to the United States Constitution. We disagree.
"The Eighth Amendment, which forbids cruel and unusual punishments, contains a `narrow proportionality principle that `applies to noncapital sentences. [Citations.]" (Ewing v. California (2003) 538 U.S. 11, 20 [155 L.Ed.2d 108, 117] (Ewing).) This applies "only in the `exceedingly rare and `extreme case. [Citations.]" (Lockyer v. Andrade (2003) 538 U.S. 63, 73 [155 L.Ed.2d 144, 156].)
"A proportionality analysis requires consideration of three objective criteria, which include `(i) the gravity of the offense and the harshness of the penalty; (ii) the sentence imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions. [Citation.] But it is only in the rare case where a comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality that the second and third criteria come into play." (People v. Meeks (2004) 123 Cal.App.4th 695, 707 (Meeks ).)
The general theme of defendants briefing attacks the structure of the three strikes law itself, arguing that a sentence of 25 years to life should be "reserved for extremely severe and violent felonies." But the United States Supreme Court has upheld a three strikes life sentence for a recidivist whose last crime was the theft of three golf clubs worth $1,200. (Ewing, supra, 538 U.S. at pp. 17-18, 30-31 [155 L.Ed.2d at pp. 114-115, 123].) This refutes defendants general theme that a three strikes sentence based on an arguably minor current felony necessarily transgresses Eighth Amendment principles.
Instead, we have held that it is appropriate to evaluate the proportionality of a sentence for an arguably minor current crime in light of a defendants record. (Meeks, supra, 123 Cal.App.4th at pp. 707-709.) Meekss offense was the failure to register as a sex offender, and the majority rejected his Eighth Amendment claim, stating in part: "Taking into account, as we should, not only the seriousness of defendants current offense, but also his history of repeated violations of the criminal law that spanned at least 30 years, we cannot say that his sentence is grossly disproportionate to his current offense when viewed in light of his long-standing, and sometimes violent, criminal history." (Id. at p. 709.)
A dissenting opinion would have found Meekss sentence to violate the cruel punishment provision of the California Constitution. (Meeks, supra, 123 Cal.App.4th at pp. 711-713 [conc. & dis. opn. of Sims, Acting P.J.].) Defendant in this case does not argue his sentence violates that provision.
In our view, possession of a firearm by a convicted felon is more serious than failure to register as a sex offender. Further, in People v. Cooper (1996) 43 Cal.App.4th 815, 819-825, the court upheld a three strikes sentence against an Eighth Amendment claim, where the current offense was possession of a firearm by a convicted felon and the two strikes were robberies. Defendant has the same current offense but three more serious strikes, and therefore we conclude his sentence is not "grossly disproportionate" for Eighth Amendment purposes.
Defendant compares his case to five others to try to demonstrate that the punishment was grossly disproportionate. We do not find those cases persuasive because we do not find defendants circumstances to be comparable to those of the other defendants.
Defendant first relies heavily on this courts opinion in People v. Carmony (2005) 127 Cal.App.4th 1066 (Carmony). According to the majority, the offense in Carmony was failing to complete a duplicative sex offender registration requirement: "Although defendant had registered his correct address as a sex offender with the police one month before his birthday, as required by law [citation], [fn. omitted] he failed to `update his registration with the same information within five working days of his birthday as also required by law. [Citation.] Defendants parole agent was aware defendants registration information had not changed and in fact arrested defendant at the address where he was registered." (Id. at p. 1071.) The majority characterized this as "an offense that is no more than a harmless technical violation of a regulatory law" and concluded that because he had just registered, "the requirement that defendant reregister within five days of his birthday served no stated or rational purpose of the registration law and posed no danger or harm to anyone." (Id. at pp. 1072-1073.) The majority distinguished Meeks, supra, 123 Cal.App.4th 695, because "the offense committed by Meeks was not the technical violation committed by defendant. Meeks failed to register after changing his residence and therefore, unlike in the present case, law enforcement authorities did not have Meekss correct address and information." (Carmony, supra, 127 Cal.App.4th at p. 1082, fn. 11.)
A dissenting opinion would have rejected Carmonys cruel punishment claims under both the Eighth Amendment and the California Constitution. (Carmony, supra, 127 Cal.App.4th at pp. 1089-1092 [conc. & dis. opn. of Nicholson, J.].)
Here, in contrast to Carmony, who arguably made a minor paperwork error, defendant unlawfully possessed two firearms. This was not a technical violation of a registration law, but a substantive violation that frustrated the very purpose of the possession of a firearm by a convicted felon statute. The comparison to Carmony is therefore not persuasive.
Defendant also relies on four lower federal court cases, but such decisions are not binding on this court. (People v. Crittenden (1994) 9 Cal.4th 83, 120, fn. 3.) Nor are they persuasive. In three of them, the defendant had a less serious past and committed a less serious current offense than defendant herein. (Ramirez v. Castro (9th Cir. 2004) 365 F.3d 755, 757-758 [strikes were nonviolent robberies arising from shoplifts, one where a guard was pushed and one where the getaway driver drove over a guards foot; current offense was a petty theft (shoplift of a VCR) with a prior]; Banyard v. Duncan (C.D.Cal. 2004) 342 F.Supp.2d 865, 873-881 [strikes were for robbery and felony assault; current crime was possession of single dose of cocaine]; Duran v. Castro (E.D.Cal. 2002) 227 F.Supp.2d 1121, 1124 [strikes were two relatively benign kidnappings on the same occasion; current crime was possession of small amount of heroin].) None of those defendants have records as severe as defendants here, with multiple child molestation cases, and each involved a less serious current offense.
In the fourth federal case, Reyes v. Brown (9th Cir. 2005) 399 F.3d 964, the strikes were residential burglary and armed robbery, and the current offense was perjury on a drivers license application. (Id. at pp. 965-966.) The Ninth Circuit Court of Appeals concluded Reyes would be eligible for relief on habeas corpus unless the armed robbery had been "violent" so as to justify a three strikes sentence, and remanded so the nature of that robbery could be determined. (Id. at pp. 969-970.) We are not persuaded by this opinion. We agree with the dissent, which concluded the Ninth Circuits analysis did not properly apply governing United States Supreme Court decisions. (Id. at pp. 970-972 [dis. opn. of Tallman, J.].)
Further, defendants current offense is more serious than perjury, and defendant has a more serious record than does Reyes. Even after a stint at Atascadero State Hospital following his molestation of a boy in 1966, defendant molested five more children in 1971, one in 1979 by using alcohol and drugs, and one in 1982. He also has felony burglary and forgery convictions from 1963. He has a possession of a firearm by a convicted felon conviction from 1990, and his current felony is the same offense. As stated earlier, although such an offense is not violent, the possession of a firearm by a convicted felon statute exists because of the likelihood that felons will use firearms. (Pepper, supra, 41 Cal.App.4th at p. 1037.)
Defendant asserts his sentence is harsher than other sentences for more serious California crimes. This ignores the fact that we must consider "not only the seriousness of defendants current offense, but also his history of repeated violations of the criminal law that spanned at least 30 years[.]" (Meeks, supra, 123 Cal.App.4th at p. 709.)
Defendants reliance on dissenting opinions in United States Supreme Court cases interpreting the Eighth Amendment is unpersuasive, as we follow the majority opinions.
Because defendant has failed to satisfy the threshold showing of gross disproportionality, we need not engage in interor intrajurisdictional comparisons. (See Meeks, supra, 123 Cal.App.4th at p. 707; United States v. Harris (9th Cir. 1998) 154 F.3d 1082, 1084.)
DISPOSITION
The judgment is affirmed.
We concur:
ROBIE, J.
CANTIL-SAKAUYE, J.