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People v. Kilman

California Court of Appeals, First District, First Division
Jul 28, 2008
No. A119002 (Cal. Ct. App. Jul. 28, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. KELLY MICHAEL KILMAN, Defendant and Appellant. A119002 California Court of Appeal, First District, First Division July 28, 2008

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

Contra Costa County Super. Ct. No. 05-061353-9

Swager, J.

Defendant Kelly Michael Kilman appeals a judgment sentencing him to a term of 45 years to life in state prison following his convictions of robbery and commercial burglary with allegations of multiple prior serious felony convictions. He contends the trial court abused its discretion in failing to strike his prior convictions and that his sentence constitutes cruel and unusual punishment. He also claims the court erred in calculating his presentence custody credits. We affirm the judgment of conviction, but modify the sentence to award defendant an additional 48 days of conduct credit.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Since defendant does not challenge his convictions, we need only concisely recite the facts pertinent to the underlying convictions as necessary to our limited review on appeal.

On October 4, 2006, defendant approached a teller at a Citibank in Pleasant Hill. He placed a note in front of the teller and told him to read it. The note said, “I have a gun and will shoot if you don’t hand me all the money in both drawers quickly.” The teller handed him $5,080 and defendant walked out of the bank. After activating the silent alarm, the teller followed defendant outside and saw that he had removed his jacket and was running down the sidewalk. Shortly thereafter, the police stopped defendant at a park. Defendant threw a bag to the ground that contained bundles of cash. He did not have a gun when he was searched. The teller positively identified him as the robber, and he was observed on a bank surveillance video of the robbery.

On November 8, 2006, an information was filed charging defendant with one count of second-degree robbery (Pen. Code, §§ 211, 212.5), and one count of commercial burglary (§ 459). The information also alleged four prior serious felony enhancements in conjunction with the robbery count (§ 667, subd. (a)(1)) and four prior strikes under the three strikes law (§ 1170.12, subd. (c)(2)), three of which were alleged as prior prison term enhancements. (§ 667.5, subd. (b).) The information was later amended to include a fifth serious felony enhancement and a fifth strike.

All further statutory references are to the Penal Code.

On March 26, 2007, the jury found defendant guilty of the substantive offenses and found true the serious felony enhancement allegations.

On August 24, 2007, defendant was sentenced to state prison for an aggregate term of 45 years to life. His sentence includes an indeterminate term of 25 years to life on the robbery count in accordance with sections 677, subdivision (e)(2)(A)(ii) and 1170.12, subdivision (c)(2)(A)(ii). This same term was imposed on the commercial burglary count, but was stayed pursuant to section 654. Four consecutive five-year enhancements were imposed for four of the five prior serious felony convictions alleged pursuant to section 667, subdivision (a)(1). This appeal followed.

DISCUSSION

I. Failure to Strike Defendant’s Prior Strikes

Defendant contends the trial court abused its discretion when it denied his request to dismiss his prior strike convictions. We disagree.

In the furtherance of justice, a trial court may strike a prior conviction allegation. (§ 1385, subd. (a); People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 504.) A trial court’s refusal to strike a prior conviction allegation is reviewed under the deferential abuse of discretion standard. (People v. Carmony (2004) 33 Cal.4th 367, 375 (Carmony).) Under that standard, the party seeking reversal must “ ‘clearly show that the sentencing decision was irrational or arbitrary. . . .’ [Citation.]” (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977–978.) It is not enough to show that reasonable people might disagree about whether to strike a prior conviction. (Carmony, supra, at p. 378.) Only extraordinary circumstances justify a finding that a career criminal is outside the three strikes law. (Ibid.) Therefore, “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.” (Ibid.)

When considering whether to strike prior convictions, the relevant factors a court must consider are “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 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.” (People v. Williams (1998) 17 Cal.4th 148, 161.) The three strikes law “not only establishes a sentencing norm, it carefully circumscribes the trial court’s power to depart from this norm . . . . [T]he law creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper.” (Carmony, supra, 33 Cal.4th 367, 378.) We presume the trial court “considered all of the relevant factors in the absence of an affirmative record to the contrary.” (People v. Myers (1999) 69 Cal.App.4th 305, 310.)

Here, the probation report indicates that defendant’s criminal history began in 1987 when he was a juvenile. His adult record includes three California felony convictions from 1990 to 1993, two for first degree burglary (§ 459) and one for receiving stolen property (§ 496). He also sustained three federal bank robbery convictions, two in 1998 and the other in 2000. His federal probation was terminated in July 2006, approximately three months before he committed the instant offense.

The “Three Strikes law has, as its central focus, the status of the defendant as a repeat felon—i.e., whether the defendant proceeded to commit a subsequent felony after already having been convicted of one or more serious or violent felonies.” (People v. Benson (1998) 18 Cal.4th 24, 34.) Defendant argues that a number of mitigating factors, including his 2006 diagnosis of Post Traumatic Stress Disorder, demonstrate that he did not warrant three strike treatment.

At his sentencing hearing, defendant offered evidence that he was raised in a highly dysfunction family by parents who were addicted to both drugs and alcohol. His father subjected him to physical and emotional abuse, even firing a gun at him on three different occasions. A psychotherapist who saw him in 2006 testified that she believed defendant suffered from Post Traumatic Stress Disorder and that he had a personality disorder. These disorders interfered with his ability to hold down a job and to have personal relationships with others. She also testified that defendant’s cognitive and intellectual functioning appeared to be impaired.

As further mitigating factors, defendant notes that he did not use a gun or physically harm anyone when he committed the instant offenses and that he would still serve a substantial prison term even if his priors were stricken. He claims these factors, along with the evidence presented by his former psychotherapist, demonstrate that the trial court abused its discretion in refusing to strike all of his prior serious felony convictions. We disagree.

Bank robbery is a serious offense, even in the absence of overt acts of violence. Here, defendant threatened to shoot the teller if he did not comply with defendant’s demand for money. Even if we accept defendant’s premise that his crime was nonviolent in nature, the express purpose of the three strikes law is to guarantee longer prison sentences for habitual criminals who commit any felony following the conviction of a serious or violent felony. (People v. Strong (2001) 87 Cal.App.4th 328, 337.) Thus, defendant’s sentence does not reflect punishment “merely on the basis of his current offense but on the basis of his recidivist behavior.” (People v. Kinsey (1995) 40 Cal.App.4th 1621, 1630.) And “the nonviolent or nonthreatening nature of the felony cannot alone take the crime outside the spirit of the law.” (Strong, supra, at p. 344.)

At the conclusion of defendant’s sentencing hearing, the trial court observed that defendant had “shown a persistent course of conduct over many years of robbing banks, [and] burglarizing people’s homes, all of which are very dangerous activities even if not done in a violent way.” The court considered the mitigating factors advanced by defendant, concluding: “There is a point at which I have to protect society. It’s not even necessarily so much about punishing him as it is just protecting everybody else from somebody who keeps on going and robbing banks because he doesn’t think he can do anything else.”

There is nothing about defendant’s background that takes him outside the spirit of the three strikes law. After all, “legislatures enacting three strikes laws [have] made a deliberate policy choice that individuals who have repeatedly engaged in serious or violent criminal behavior, and whose conduct has not been deterred by more conventional approaches to punishment, must be isolated from society in order to protect the public safety.” (Ewing v. California (2003) 538 U.S. 11, 24 (Ewing).) Defendant’s unrelenting criminal record brings him within the spirit of the three strikes law. In particular, we note that he committed the instant offenses only a few months after he was released from federal probation for his prior bank robberies. We find that the court acted to achieve legitimate sentencing objectives and did not abuse its discretion in denying defendant’s motion to dismiss the prior strike convictions.

II. Cruel and Unusual Punishment

Defendant also contends that his sentence of 45 years to life constitutes cruel and unusual punishment in violation of article I, section 17 of the California Constitution and the Eighth Amendment of the United States Constitution.

Before proceeding to discuss the merits of this claim, we note that defendant waived it by not raising it at the time of his sentencing hearing. (People v. Kelley (1997) 52 Cal.App.4th 568, 583.) Even if he had raised the claim, however, he would not have prevailed.

A. The Federal Standard

The United States Supreme Court has stated that the Eighth Amendment to the United States Constitution “prohibits imposition of a sentence that is grossly disproportionate to the severity of the crime.” (Rummel v. Estelle (1980) 445 U.S. 263, 271; Solem v. Helm (1983) 463 U.S. 277, 285–286.) In making this determination, the court should “look to the gravity of the offense and the harshness of the penalty.” (Solem v. Helm, at pp. 290–291.) An intra jurisdictional and inter jurisdictional comparison of punishments may also serve as a guide in the proportionality determination. (Id. at pp. 291–292.)

The federal case most relevant to our analysis is Ewing, supra, 538 U.S. 11 . In Ewing, the court concluded that a sentence of 25 years to life for a third strike offense of felony grand theft and prior strikes consisting of robbery and three residential burglaries was not “grossly disproportionate and therefore [did] not violate the Eighth Amendment’s prohibition on cruel and unusual punishments.” (Id. at pp. 30–31.) The court determined that the three strikes sentencing scheme reflects the reasonable judgment of the California Legislature “that protecting the public safety requires incapacitating criminals who have already been convicted of at least one serious or violent crime. Nothing in the Eighth Amendment prohibits California from making [this] choice.” (Id. at p. 25.) In light of Ewing’s recidivist criminal history, the “State of California ‘was entitled to place upon [the defendant] the onus of one who is simply unable to bring his conduct within the social norms prescribed by the criminal law of the State.’ ” (Id. at p. 30, quoting Rummel v. Estelle, supra, 445 U.S. 263, 284.) Ewing’s was “not ‘the rare case in which a threshold comparison of the crime committed and the sentence imposed leads to an inference of gross dis proportionality.’ ” (Ibid., quoting Harmelin v. Michigan (1991) 501 U.S. 957, 1005 (conc. opn. of Kennedy, J.).)

Here, the absence of any gross dis proportionality is at least as strong as in Ewing. Looking first at the gravity of the current offenses, we note that, unlike the defendant in Ewing, whose current conviction was for a “wobbler,” defendant’s two current convictions are for serious felonies. Although it is true that his offenses were carried out by the threat of violence rather than violence itself, there is no doubt that the State of California considers robbery and commercial burglary to be serious crimes.

Of course, defendant’s sentence was not based solely upon his current convictions but also upon his past crimes, which held the potential for violence, and the recidivism represented by those crimes. In fact, for the past 19 years defendant has repeatedly been arrested and imprisoned for crimes similar to the instant offenses. The convictions found true by the jury included multiple convictions for bank robbery and for residential burglary. He is plainly “ ‘one who is simply unable to bring his conduct within the social norms prescribed by the criminal law of the State’ [citation]” and therefore appropriate for punishment under the literal terms of the three strikes laws. (Ewing, supra, 538 U.S. 11, 30.)

In light of defendant’s current conviction and his pattern of recidivism, we conclude that the sentence imposed in this case is not one of those rare cases in which a sentence is so grossly disproportionate to the gravity of the offense that it violates the proscription for cruel and unusual punishment contained in the Eighth Amendment. It therefore is unnecessary to resort, for the purpose of his federal constitutional claim, to an intr ajurisdictional or interjurisdictional comparison and analysis of the punishment. (Harmelin v. Michigan, supra, 501 U.S. 957, 1005–1007 (conc. opn. of Kennedy, J.).)

B. California’s Proscription of Cruel and Unusual Punishment

Our analysis of the penalty in relation to the offenses, including defendant’s recidivism and his personal and criminal history, is not substantially different under the California Constitution, which precludes a sentence that is “so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.” (In re Lynch (1972) 8 Cal.3d 410, 424; People v. Dillon (1983) 34 Cal.3d 441, 478.) Lynch requires a similar three-part analysis: “ ‘First, we examine the nature of the offense and/or the offender, with particular regard to the degree of danger both present to society. A look at the nature of the offense includes a look at the totality of the circumstances, including motive, the way the crime was committed, the extent of the defendant’s involvement, and the consequences of defendant’s acts. A look at the nature of the offender includes an inquiry into whether “the punishment is grossly disproportionate to the defendant’s individual culpability as shown by such factors as his age, prior criminality, personal characteristics, and state of mind.” [Citation.] Next, we compare the challenged punishment with the punishment prescribed for more serious crimes in the same jurisdiction. And finally, the challenged punishment is compared with punishment for the same offense in other jurisdictions.’ [Citation.]” (People v. Romero (2002) 99 Cal.App.4th 1418, 1431–1432.)

For the same reasons stated in our analysis of the offenses and the offender under federal law, we find nothing in the particular facts of this case that warrants a different conclusion under state law. Our examination of the nature of the offenses and the offender, “with particular regard to the degree of danger both present to society,” does not reveal any inference of disproportionality that would shock the conscience. (People v. Thongvilay (1998) 62 Cal.App.4th 71, 88.) Defendant has an extensive criminal history, has been sentenced to both state and federal prison previously, and has not been amenable to rehabilitation. Although state law allows for a greater consideration of the defendant’s individual situation, including age and personal characteristics (People v. Barrera (1999) 70 Cal.App.4th 541, 555), there is nothing in defendant’s individual situation that should alter the result.

Defendant relies on the late Justice Mosk’s dissenting opinion in People v. Hicks (1993) 6 Cal.4th 784, 797, and his concurring opinion in People v. Deloza (1998) 18 Cal.4th 585, 601–602, for the proposition that a sentence that cannot be completed within the defendant’s lifetime constitutes cruel and unusual punishment. Defendant is 37 years old. He argues it is unlikely he will survive a 45-year sentence, hence the sentence is cruel and unusual punishment.

As our colleagues in the Third District Court of Appeal stated when confronted with the same argument in People v. Byrd (2001) 89 Cal.App.4th 1373, 1383, “ ‘no opinion has value as a precedent on points as to which there is no agreement of a majority of the court. [Citations.]’ [Citations.] Because no other justice on our Supreme Court joined in Justice Mosk’s concurring opinion [in Deloza, supra, 18 Cal.4th 585], it has no precedential value.”

For all of the foregoing reasons we conclude that defendant’s sentence does not constitute cruel or unusual punishment under the state or federal constitutions.

III. Presentence Conduct Credits

Defendant claims the court failed to award the 48 days of presentence conduct credits that he had earned up to the date of his sentencing hearing. Because defendant’s current felonies are violent felonies listed in section 667.5, his presentence custody credits are limited under section 2933.1 to 15 percent of actual time. (See People v. Thomas (1999) 21 Cal.4th 1122, 1124–1125.) Here, the trial court awarded defendant 325 days of actual credit, entitling him to an additional 48 days of conduct credit. The Attorney General concedes the error, but claims defendant’s request is premature as the trial court has not been permitted to correct the error. In view of the Attorney General’s concession and in the interest of resolving this matter, we conclude that defendant is entitled to 48 days of conduct credit in addition to his actual custody credit.

DISPOSITION

The trial court is directed to amend the abstract of judgment to reflect 373 days of presentence custody credit, consisting of 325 days of actual custody credit and 48 days of conduct credit. The trial court shall forward a copy of the amended abstract of judgment to the Department of Corrections.

In all other respects, the judgment is affirmed.

We concur: Marchiano, P. J. Margulies, J.


Summaries of

People v. Kilman

California Court of Appeals, First District, First Division
Jul 28, 2008
No. A119002 (Cal. Ct. App. Jul. 28, 2008)
Case details for

People v. Kilman

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. KELLY MICHAEL KILMAN, Defendant…

Court:California Court of Appeals, First District, First Division

Date published: Jul 28, 2008

Citations

No. A119002 (Cal. Ct. App. Jul. 28, 2008)