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finding sufficient evidence of "force or fear" because one of the reasonable inferences the jury could have made was "that [the victim] was concerned for the fate of his vehicle"
Summary of this case from United States v. BaldonOpinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Fresno County Super Ct. No. F07901850. Ralph Nunez, Judge.
Retired judge of the Fresno Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
John Hardesty, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Lloyd G. Carter, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
DAWSON, J.
PROCEDURAL HISTORY
On May 3, 2007, the Fresno County District Attorney filed an information in superior court. As subsequently amended by interlineation, the information charged appellant as follows:
Count 1—carjacking (Pen. Code, § 215, subd. (a));
Further statutory references are to the Penal Code unless indicated.
Count 2—kidnapping (§ 207, subd. (a)), with personal use of a firearm (§§ 12022.53, subd. (b), 12022.5, subd. (a));
Counts 3 and 4—possession of a firearm by a felon (§ 12021, subd. (a));
Counts 5 and 6—possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a));
Count 7—dissuading a witness from prosecuting a crime (§ 136.1, subd. (b)(1)); and
Count 8—resisting a peace officer (§ 148, subd. (a)(1)).
The district attorney specially alleged appellant had sustained three strike priors (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)).
On May 7, 2007, appellant was arraigned, pleaded not guilty to the substantive counts, and denied the special allegations.
On August 23, 2007, jury trial commenced.
On August 29, 2007, the fifth day of trial, the court denied appellant’s motion for acquittal (§ 1118.1).
On August 30, 2007, both sides rested.
On August 31, 2007, the jury returned verdicts finding appellant guilty of the substantive counts and finding the special allegation relating to count 2 to be true. That same day, the court conducted a bifurcated hearing and found the strike prior allegations to be true.
On October 1, 2007, the court conducted a sentencing hearing, denied appellant probation, and sentenced him to a total term of 112 years to life in state prison computed as follows:
Count 2—25 years to life with a consecutive term for the section 12022.53, subdivision (b) enhancement;
Count 1—the tripled nine-year upper term of 27 years to life to run consecutive to count 2;
Count 3—the term of 25 years to life to run concurrent to count 2;
Count 4—the term of 25 years to life to run consecutive to count 2;
Count 5—the term of 25 years to life to run concurrent to count 2;
Count 6—the term of 25 years to life to run concurrent to count 2; and
Count 7—the term of 25 years to life to run consecutive to count 2. The court stayed a 10-year term for the section 12022.5, subdivision (a) enhancement attached to count 2.
On the same date, appellant filed a timely notice of appeal.
Appellant contends on appeal (1) that the conviction on count 1, for carjacking, is not supported by substantial evidence, and (2) that his sentence is cruel and unusual punishment. We disagree with both contentions and will affirm.
FACTS
On February 23, 2007, off-duty Fresno County Deputy Sheriff Robert Marean was returning home after testifying in a court case. He was dressed in civilian clothing but driving a marked patrol car. At approximately 9:20 a.m., Marean heard a dispatch for the Tarpey Village area of Clovis. The dispatcher indicated there was an unfamiliar vehicle in Tarpey Village, a neighborhood that Marean regularly patrolled. Marean had his badge and his department-issued weapon attached to his belt. Marean also had his bulletproof vest in his car.
Marean called dispatch, went to the corner of Argyle Avenue and Hampton Way, and saw a blue BMW vehicle parked at the location. Appellant and a woman were inside the vehicle. Deputy Marean pulled up behind the BMW and appellant and the female alighted from the vehicle and walked into a residence on North Argyle Avenue. Marean ran a registration check on the BMW and discovered it had an expired registration but a valid sticker on the license plate. He then walked to the passenger side of his car, put on his bulletproof vest and put on a raid vest bearing the word “Sheriff” on the back.
The female walked out of the house on Argyle and Marean asked her about appellant’s identity. She initially declined to answer but then identified appellant as “Chen.” Marean detained the female in the back of his patrol car. When no one else walked out of the house, he went to the door and knocked. As Marean knocked, he saw a shadow go across the glass and heard someone inside yell, “‘He’s going out the back.’” Marean then circled the house to reach the backyard. When Marean got to the backyard, he saw appellant climbing out of a window. Marean yelled for appellant to stop. Appellant then got out of the window frame and went back through the house. Marean opened a sliding glass door and pursued him through the house. Someone inside yelled, “‘He went out the front. He went out the front.’” When Marean got to the front door, he saw appellant fleeing in the BMW. Marean went to his patrol car, instructed the woman to alight from the vehicle, and then pursued appellant. Marean pursued the BMW through Tarpey Village and was preparing to make a stop on Siverly Lane when the BMW crashed into a palm tree. Appellant got out of the BMW and ran away.
Brenda Hayworth May, who resided on North Argyle, testified her daughter had dated appellant, whom she knew as “Chendo.” The couple had broken up and, on February 23, appellant was picking up some of his things from May’s house and returning some items that belonged to her daughter. May said appellant and her other daughter were sitting in his car outside the May residence when Deputy Marean pulled up. Appellant then ran into her house, and she heard him say that he did not want to be arrested. May did not see appellant with a weapon but she did see a weapon in the hand of a deputy outside her house. The deputy ran to her sliding glass door and yelled, “‘Where’s he at? Where’s he at?’” May indicated that appellant was at the front door. Deputy Marean eventually entered the house and asked May about appellant’s location. She said, “I don’t know. The hall, that way.” Her son-in-law advised Marean that appellant had gone out the front door. May saw appellant drive off in his car and Marean follow him in a squad car.
When appellant crashed into the palm tree, Marean stopped his patrol car, blocked the BMW, and left the driver’s door of the patrol car open and the engine idling. He pursued appellant on foot and saw him slip and fall on the wet grass of a residential backyard. At that moment, Marean saw a “chrome flash” at the midsection of appellant’s body and thought it “could possibly be a gun.” Marean based his conclusion on previous experiences where he had seen “numerous chrome-plated handguns which would resemble the flash that I saw.” Marean said, “[T]here’s some element of … fear in the job I do, and that raised that element of fear a little bit. It would make me be more cautious in dealing with somebody that had a weapon.” Marean said appellant got up after he fell down and ran to the other side of the yard. He crashed through a fence by lowering his shoulder. Marean “saw the chrome flash again. I wasn’t able to determine if it was a gun, but I believe[d] it could possibly be.”
At this point, Marean had his gun out of the holster. He saw appellant run for the idling patrol vehicle. Marean was concerned because he knew the patrol vehicle contained a loaded shotgun, a loaded rifle, and a hand-held radio. When Marean was between five and 10 feet away from the patrol car, appellant entered it and locked all four doors. Marean approached the vehicle, grabbed a door handle, and looked inside to see if there was a weapon of any kind. Marean could see something “dark, black” between appellant’s legs but could not determine whether it was a gun. At that moment, appellant accelerated and the car drove away with the overhead lights flashing. Marean was afraid for his safety and let go of the door handle.
Rebecca Zagorski, a resident of Siverly Lane, awoke and went outside on the morning of February 23, 2007, where she saw a car drive into her driveway and strike a tree. Two men, one of whom was bearing a weapon, approached her and yelled at her to get out of the way. She went to the side of her house and did not see anything else. She could not recall what the two men looked like. However, she thought the first man who went through the gate had a shaved head or was bald. She also said he was carrying a gun but holding it down while he was running.
On the morning of February 23, Jerry Wadkins was planning to sell two used lawnmowers at his rural home on Armstrong Avenue east of Fresno. Wadkins was chaining the mowers to a power pole when he saw a law enforcement vehicle slide sideways out of control at him. Wadkins got out of the way and the squad car went through a flower bed and “wiped out” the two mowers. Wadkins noticed the driver could not open the door of the squad car. He saw the driver break the driver’s window with a pistol, climb out, and then place the pistol in his sweatshirt pocket. Wadkins saw this from a distance of 30 to 35 feet and described the weapon as a snub-nosed, nickel-plated .38-caliber weapon.
Wadkins said appellant claimed to be an undercover officer chasing a murder suspect and asked to borrow Wadkins’s car. Wadkins believed that to be a lie because no other cars had passed his house in the past few minutes and because it did not make sense for an undercover officer to be driving a marked squad car with lights and siren. Wadkins refused to give up his car. Appellant began running, stood in the middle of the roadway, and unsuccessfully attempted to stop one vehicle. A maroon pickup truck stopped and appellant—who was holding both hands in the air—got into the vehicle. Another person got out of the truck and the vehicle departed. Wadkins identified appellant as the man who got out of the squad car, and the defense stipulated that appellant was the individual. Wadkins saw the man who got out of the pickup truck and said he was “shaking real bad.”
House painter Juan Lopez was driving his pickup truck with coworker Michael Ward on the morning of February 23. Lopez saw a patrol car in a lot and appellant holding a gun and standing in the way. Lopez stopped because he and Ward believed appellant to be an officer in need of assistance. Lopez said appellant came to the driver’s window and then got into the passenger side as Ward got out of the cab. Lopez testified appellant held a gun in his hand and told him to take appellant out of Fresno. Appellant appeared desperate, waved the gun up and down in the air, and said, “‘Go, go. They want to catch me.’” Lopez said the gun was chrome with black tape on the handle. Lopez thought appellant would hit him with the gun or shoot him if he did not comply. Lopez said appellant did not point the gun at him except for sticking it into his ribs when he got into the truck. Appellant kept the gun between his legs during their 15-minute pickup truck ride.
Ward testified he saw a crashed police car and a man running toward the truck with his “arms wide open.” Ward said the man came to his window and said, “‘I’m an undercover officer. I’m an undercover officer. Get out of the vehicle.’” Ward complied and the man got into the truck cab. Ward did not see a gun but did see the man holding his hand inside his sweatshirt, as if he were concealing a gun there. After getting out of the cab, Ward called police on his cell phone. Ward said he was concerned for Lopez because the man did not seem to be an undercover officer because of his panicked demeanor. Ward was afraid that he would be shot.
Appellant urged Lopez to drive the truck faster but Lopez proceeded at 55 miles per hour and obeyed stop signs. Lopez said appellant acted “desperate” and hit the window with his gun on a few occasions. Appellant gave Lopez directions and they traveled approximately 7.3 miles. Appellant finally instructed Lopez to stop and let him out in an alley. Appellant thanked Lopez for the ride and offered him $1,000 to drive him out of Fresno. When Lopez declined, appellant gave him a ring. Lopez testified he did not drive appellant for money but because he brandished the gun. Appellant told Lopez he would do something to him if he called the police. Lopez proceeded to his job but did not call police.
Fresno County Sheriff’s Detective Andrew Simonson testified he was a member of a team assigned to conduct surveillance of appellant’s girlfriend in Kerman. On March 3, 2007, the team was waiting for appellant at a McDonald’s Restaurant in Kerman. Appellant was lying in the backseat of a Chevrolet Cavalier driven by Brenda May’s daughter, Laura Damme. The car stopped on the side of a Me-N-Ed’s pizzeria. Simonson was dressed in plain clothes but wore a badge around his neck. He approached the Cavalier with his gun drawn, announced he was with the sheriff’s department, and instructed appellant to show his hands. Appellant did not comply and instead got out of the car, ducked his head, and extended his arms as if to tackle Simonson. Detective Simonson grabbed appellant by the shoulders, administered a knee strike, and then struck appellant in the head with his gun hand. Deputies searched appellant’s person and found an unloaded .38-caliber revolver in his front jacket pocket and elsewhere on his person found two bags of off-white powder and six hand-rolled cigarettes. Supervising Criminalist Michael Giberson analyzed the contraband. He testified one bag with off-white chunks weighed 4.821 grams and contained PCP. A white crystal material weighed 1.402 grams and contained methamphetamine. The hand-rolled cigarettes contained an unknown plant substance and PCP. Sheriff’s Technician Vicente Guerrero said appellant’s fingerprints were found on Juan Lopez’s truck.
Juan Lopez also testified that appellant communicated with him in the courtroom during a break in the trial. The jury was not present in the courtroom when this occurred. According to Lopez, appellant mouthed the Spanish-language words, “‘I’m going to kill you.’” Lopez said he responded, “‘Say it out loud.’” A courtroom bailiff observed appellant make a hand motion toward Lopez during that same break. Lopez was seated on the witness stand. The bailiff understood the motion to mean “I’m going to screw you or you’re screwed.” The bailiff thought Lopez looked upset at the time appellant made the gesture.
Deputy Sheriff Joshua Hamilton transported appellant to a hospital on the day he was arrested. Appellant spoke with Hamilton during the ride. Hamilton testified that appellant “wanted me to know that he was not picking on the Sheriff’s Department, said it was an opportunity of chance.” Appellant also told Hamilton he “wanted to ride in a patrol car with the lights and siren, but not in the back seat.”
Defense
Sheriff’s Detective David Barile spoke to Juan Lopez on the morning of the incident but Lopez never mentioned the ring or appellant’s offer of $1,000 to drive him out of Fresno. Detective Barile said Lopez never mentioned that appellant was carrying a concealed weapon or that appellant threatened him with harm when he dropped off appellant.
Sheriff’s Detective Sergio Toscano interviewed Juan Lopez and the latter said appellant had been armed with a .38-caliber revolver during their pickup ride. Juan Lopez said he was afraid that appellant would shoot him if he did not give appellant a ride. Detective Toscano said Lopez did not mention that appellant brandished a gun, placed it against his ribs, gave him a ring, and offered him $1,000 for a ride out of Fresno.
Appellant testified he pleaded guilty to aggravated assault on March 21, 1997, and to aggravated assault on November 12, 2003. Appellant said he was not guilty of carjacking Deputy Marean but only guilty of grand theft of the squad car. Appellant also said he was not guilty of kidnapping Juan Lopez because he gave him money and a ring in exchange for a ride to the outskirts of Fresno.
Appellant admitted he was guilty of the offenses charged in counts 3 through 6 but denied carjacking and kidnapping. Appellant said he commandeered the squad car and turned on the overhead lights because it was “[s]omething I always wanted to do.” Appellant also admitted that he carried a gun at the time. Appellant said he crashed the squad car because it was too fast for him to control.
Appellant also claimed he knew Juan Lopez before the carjacking. Appellant said Lopez was a casual acquaintance and that he had provided drugs to Lopez on previous occasions. Appellant said it was a lucky coincidence that Lopez was driving the pickup on February 23. Appellant testified, “It was my lucky—my lucky day, I guess I would say, because I got away thanks to him.” Appellant denied threatening Lopez and said he gave Lopez $700 in cash and a three-diamond ring at the time Lopez dropped him off in Sanger.
On cross-examination, appellant denied testifying that he had sold drugs to Juan Lopez.
Appellant testified the gun he carried did not work. He claimed he was a “rap star” who needed protection and carried the inoperable gun to scare people. Appellant said he did not intend to hurt anyone and denied threatening Juan Lopez in the courtroom.
Rebuttal
Michael Ward testified he asked Lopez to slow down and stop because he thought an officer might have been hurt in the squad car. In Ward’s view, Lopez did not seem to recognize appellant. Juan Lopez testified he had never seen appellant before February 23, 2007.
DISCUSSION
I. Does the Record Contain Substantial Evidence to Support the Force or Fear Element of Carjacking?
Appellant contends the record lacks substantial evidence to support the force or fear element of carjacking as charged in count 1.
He specifically argues:
“[T]he case law of robbery and carjacking reveals no case where the force requirement was satisfied not by application of force, directly or indirectly to a human being, but to a mechanical object that had no connection to and did not impinge upon or threaten a living human being…. [¶] … [¶]
“… Appellant’s entering an unlocked car, engine running with keys in the ignition, locking the doors, and moving the car completed the act of vehicle theft (Vehicle. Code, § 10851). If vehicle theft is to become a carjacking, the thief must resort to the use of fear to retain possession of the vehicle. Here, appellant did not resort to the use of fear to retain possession. Indeed, it was Marean who stood at the car window, yelling, yanking on the door handle, and holding a gun. As the trial court stated below, with appellant inside the patrol car with the gun in his lap, and Marean standing outside the car with a gun in his hand, ‘[a]t that point [Marean] knows [appellant] can’t possibly shoot him.’ [Citation.] Appellant simply drove off.
“The prosecutor attempted to portray Marean as exhibiting a fearful state of mind. This claim is belied by the evidence that Marean was armed, had on a bulletproof vest, and remained in hot pursuit without any hesitation. [Citation.] There is no evidence that Marean held back in his pursuit. Indeed, Marean’s pursuit was so intense that he arrived at the patrol car only five or ten feet behind appellant. [Citation.] There is simply no evidence that appellant accomplished the taking by use of fear.
“Moreover, as the trial court instructed the jury, the intent to steal the car and the use of fear must coincide. If the fear was applied before the intent to take the car was formed, there was no carjacking. [Citation.] Here, Marean first saw a chrome flash that made him think of a possible handgun when appellant slipped and fell on wet grass in the backyard. Marean pulled out his gun no later than at this moment. [Citation.] Reasonably, this is the moment of Marean’s fear, but there is no evidence that appellant intended to steal the patrol car as he fled through the backyard. As noted above, the trial court’s assessment that Marean reasonably would have no fear when he stood at the patrol car with appellant locked inside was correct. Hence, there is no evidence of record that appellant used fear to accomplish the taking of the patrol car.” (Fns. omitted.)
As charged in count 1, section 215, subdivision (a) states:
“‘Carjacking’ is the felonious taking of a motor vehicle in the possession of another, from his or her person or immediate presence, or from the person or immediate presence of a passenger of the motor vehicle, against his or her will and with the intent to either permanently or temporarily deprive the person in possession of the motor vehicle of his or her possession, accomplished by means of force or fear.”
The carjacking statute was designed to address a particularly serious crime that victimizes persons in vulnerable settings and, because of the nature of the taking, raises a serious potential for harm to the victim, the perpetrator, and the public at large. (People v. Coleman (2007) 146 Cal.App.4th 1363, 1365.) While a distinct crime from robbery, the elements and statutory language of carjacking are analogous to those of robbery and the “taking” language of the carjacking statute is framed in identical language to the robbery statute. We therefore presume the Legislature intended the carjacking statute to be given a like interpretation. (Keating v. Superior Court (1982) 31 Cal.3d 584, 598, disapproved on another point in Southland Corp. v. Keating (1984) 465 U.S. 1, 17.)
Robbery requires a taking from the person or immediate presence of the possessor (§ 211). By enacting section 215, the Legislature expanded the taking element to include a taking from the person or immediate presence of either the possessor or any passenger. By so extending the carjacking statute, the Legislature made the crime of carjacking more nearly a crime against the person than a crime against property. If a defendant uses force or fear, he or she is guilty of carjacking whether or not the victim was aware of that force or fear. (People v. Hill (2000) 23 Cal.4th 853, 860-861.) Section 215 does not require that the victim be inside or touching the vehicle at the time of the taking. Mere vehicle theft becomes carjacking if the perpetrator, having gained possession of the motor vehicle without use of force or fear, resorts to force or fear while driving off with the vehicle. (People v. O’Neil (1997) 56 Cal.App.4th 1126, 1131.)
For purposes of robbery under section 211, “fear” may be either (1) the fear of an unlawful injury to the person or property of the person robbed, or of any relative of his or member of his family or (2) the fear of an immediate and unlawful injury to the person or property of anyone in the company of the person robbed at the time of the robbery. (§ 212.) Where intimidation is relied upon, it can be established by proof of conduct, words, or circumstances reasonably calculated to produce fear. (People v. Brew (1991) 2 Cal.App.4th 99, 104.)
Deputy Marean testified he had concerns about appellant taking his squad car because the vehicle contained a loaded shotgun, loaded rifle, and hand-held radio. When appellant entered the squad car and closed the door, Marean was five to 10 feet away from the vehicle. Marean approached the vehicle with his gun drawn, grabbed the door handle in an attempt to open the door, and looked into the car for signs of weapons. The defense was willing to stipulate that Marean approached the vehicle with caution. Marean testified, “[A]ny time somebody’s armed, you’re going to be a little bit more cautious and be a little bit more observant and check for weapons to see if you can see any weapons.” Marean believed appellant had a weapon and was concerned “he might turn and use that weapon on me or use that weapon on somebody else and—in an attempt to get away.” Although Marean saw something “dark, black” between appellant’s legs, he could not identify the object. Marean lifted the door handle for several moments but could not successfully open the door. Marean was still trying to get into the locked door when the car drove away. Marean said he did not continue to hang on to the vehicle or attempt to gain entry because “[i]f I’m holding onto a moving vehicle it would most likely cause injury to myself.”
Fear may be inferred from the circumstances despite even superficially contrary testimony of the victim. (People v. Iniguez (1994) 7 Cal.4th 847, 857.) Here, the jury could reasonably infer that Deputy Marean was fearful because appellant possibly had a weapon and appellant could have used it against the deputy to effectuate his escape. Moreover, the jury could infer that Marean was fearful of being dragged down the street if he held onto the squad car door and appellant accelerated to make his escape from the scene. In addition, the jury could have reasonable inferred that Marean was concerned for the fate of his vehicle. Although Marean was armed and wearing a bulletproof vest at the time of the incident, on appeal all conflicts in the evidence and questions of credibility are resolved in favor of the verdict, and every reasonable inference the jury could draw from the evidence is indulged. (People v. Autry (1995) 37 Cal.App.4th 351, 358.)
The judgment of conviction of carjacking as charged in count 1 was supported by substantial evidence of fear.
II. Did Appellant’s Sentence of 112 Years to Life in State Prison Constitute Cruel and Unusual Punishment?
Appellant contends his 112-year state prison sentence violates the cruel and unusual punishment clauses of the United States and California Constitutions because it is impossible for any living human being to serve such a lengthy term.
A. Federal Claim
The Eighth Amendment to the United States Constitution provides that there “shall not be … cruel and unusual punishments inflicted.” The prohibition against cruel and unusual punishment applies to the states as incorporated in the due process clause of the Fourteenth Amendment. (Robinson v. California (1962) 370 U.S. 660, 675 (conc. opn. of Douglas, J.).)
The United States Supreme Court has repeatedly held that the imposition of a lengthy prison sentence on a repeat offender imposed under a recidivist statute does not constitute cruel and unusual punishment. (Harmelin v. Michigan (1991) 501 U.S. 957; Hutto v. Davis (1982) 454 U.S. 370; Rummel v. Estelle (1980) 445 U.S. 263 (Rummel).) In noncapital cases, the United States Supreme Court has consistently deferred to state Legislatures to determine the appropriate length of prison sentences. (Rummel, supra, at p. 274.) Severe sentences imposed on repeat offenders promote a legitimate state interest in safeguarding society from crime. (Id. at p. 284.)
In Rummel, the United States Supreme Court held it was not cruel and unusual to impose a life sentence under a Texas recidivist statute where the defendant was convicted of obtaining $120.75 by false pretenses. (Rummel, supra, 445 U.S. at p. 266.) The defendant had previously been convicted of passing a forged check in the amount of $28.36 and of fraudulently using a credit card to obtain $80 worth of goods or services . (Id. at pp. 265-266.) In Hutto, the United States Supreme Court rejected an Eighth Amendment challenge to a 40-year prison term and a $20,000 fine for possessing and distributing nine ounces of marijuana. (Hutto v. Davis, supra, 454 U.S. at p. 371-372.) In Harmelin, the United States Supreme Court upheld a sentence of life without possibility of parole for possessing 672 grams of cocaine. (Harmelin v. Michigan, supra, 501 U.S. at pp. 961, 996.)
More recently, in Ewing v. California (2003) 538 U.S. 11 (Ewing), the United States Supreme Court upheld a 25-year-to-life sentence under the California three strikes law for a defendant who shoplifted golf clubs worth about $1,200 with prior burglary and robbery convictions. The court confirmed that the cruel and unusual punishment clause of the federal Constitution contains a narrow proportionality principle that prohibits grossly disproportionate sentences but noted that successful challenges outside the context of capital punishment are exceedingly rare. (Ewing, supra, at pp. 20-21, citing Rummel, supra, 445 U.S. at pp. 271-272.) In a companion case, Lockyer v. Andrade (2003) 538 U.S. 63 (Andrade), the Supreme Court upheld two consecutive 25-year-to-life sentences under the three strikes law for a defendant who stole $150 worth of videotapes with three prior convictions for first degree burglary.
Appellant’s case is well within the parameters set by Ewing and Andrade. Appellant had prior strike convictions, an extensive criminal background, and numerous periods of incarceration in juvenile facilities, county jails, and state prison. (See Andrade, supra, 538 U.S. at pp. 66-67; Ewing, supra, 538 U.S. at pp. 17-20, 28.)
B. State Claim
Article I, section 17 of the California Constitution independently provides: “Cruel or unusual punishment may not be inflicted or excessive fines imposed.” Punishment is cruel and unusual if it is so disproportionate to the crime committed that it shocks the conscience and offends fundamental notions of human dignity. A tripartite test has been established to determine whether a penalty offends the constitutional prohibition against cruel or unusual punishment. First, courts examine the nature of the offense and the offender, with particular regard to the degree of danger both present to society. Second, a comparison is made of the challenged penalty with those imposed in the same jurisdiction for more serious crimes. Third, the challenged penalty is compared with those imposed for the same offense in other jurisdictions. In undertaking this three-part analysis, reviewing courts consider the totality of the circumstances surrounding the commission of the offense. (People v. Sullivan (2007) 151 Cal.App.4th 524, 569.)
Defining crime and determining punishment are matters uniquely legislative in nature. Courts will denounce a punishment as unusual only when the punishment is out of all proportion to the offense and is clearly an extraordinary penalty for a crime of ordinary gravity committed under ordinary circumstances. (People v. Lewis (1993) 21 Cal.App.4th 243, 251.) Whether a punishment is cruel or unusual is a question of law for the appellate court, and the underlying disputed facts must be viewed in the light most favorable to the judgment. (People v. Martinez (1999) 76 Cal.App.4th 489, 496.)
Appellant must overcome a “considerable burden” in challenging his penalty as cruel or unusual under the California Constitution. (People v. Wingo (1975) 14 Cal.3d 169, 174.) The selection of an appropriate penalty for a criminal offense is a “legislative skill involving an appraisal of the evils to be corrected, the weighing of practical alternatives, consideration of relevant policy factors, and responsiveness to the public will.” (In re Lynch (1972) 8 Cal.3d 410, 423 (Lynch).)
To measure the proportionality of appellant’s sentence, we must consider the nature of both the offense and the offender. (People v. Dillon (1983) 34 Cal.3d 441, 479 (Dillon).) Lynch requires courts to (1) examine the nature of the offender, (2) compare the punishment with the penalty for more serious crimes in the same jurisdiction, and (3) compare the punishment with the penalty for more serious crimes in other jurisdictions. (Lynch, supra, 8 Cal.3d at pp. 425-427.) Dillon interpreted the Lynch factors to require an examination of the entire circumstances of: the crime, including motive, method, results, and the extent of the defendant’s involvement; and of the criminal, including his or her age, prior criminality, personal characteristics, and state of mind. (Dillon, supra, at p. 479.)
The first Lynch factor does not support a finding of disproportionality. On February 23, 2007, appellant carjacked a law enforcement vehicle, kidnapped Juan Lopez at gunpoint, and possessed a firearm. On March 3, 2007, the date of apprehension, appellant possessed a firearm and several different controlled substances and resisted deputies as they attempted to detain and arrest him. During trial, appellant sought to dissuade victim/witness Juan Lopez. Appellant’s lengthy record began when he smoked marijuana at the age of nine, drank hard alcohol daily at the age of 10, and was “jumped” into a criminal street gang at the age of 11. At age 13 he stole a car, attacked a witness, and became a ward of the court. The following year, 1990, he stole another car and in 1991 he vandalized a car and committed a petty theft. In 1993, he was sent to the California Youth Authority for felony burglary. In 1996, while on parole from the youth authority, he was convicted of assault with a deadly weapon. While on bail for this crime, he was arrested for another assault after he struck a victim in the face with a set of brass knuckles. He received a five-year sentence for the first assault and a concurrent term for the second. In November 2002, appellant was paroled from the California Department of Corrections. Nine months later, he was arrested for another assault involving two young women. He received a three-year prison term and was paroled in November 2006. Three months later he committed the instant offenses. Neither the nature of appellant’s current offense nor the nature of his criminal history weighs in favor of finding cruel or unusual punishment. (See, e.g., Dillon, supra, 34 Cal.3d at pp. 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.) As the Supreme Court observed in Ewing, appellant’s sentence was fully “justified by the State’s public-safety interest in incapacitating and deterring recidivist felons, and amply supported by his own long, serious criminal record.” (Ewing, supra, 538 U.S. at pp. 29-30.)
As for the second Lynch factor, comparison of the penalty for more serious crimes in California, the fact a sentence exceeds a defendant’s life expectancy does not necessarily render the sentence constitutionally cruel or unusual. (People v. Byrd (2001) 89 Cal.App.4th 1373, 1382-1383; People v. Ayon (1996) 46 Cal.App.4th 385, 396-401 [finding 240-years-to-life sentence, which was the functional equivalent of a life sentence without the possibility of parole, did not constitute cruel or unusual punishment], disapproved on other grounds by People v. Deloza (1998) 18 Cal.4th 585, 600, fn. 10.) As the court in Byrd reasoned:
“[I]t is immaterial that defendant cannot serve his sentence during his lifetime. In practical effect, he is in no different position than a defendant who has received a sentence of life without possibility of parole: he will be in prison all his life. However, imposition of a sentence of life without possibility of parole in an appropriate case does not constitute cruel or unusual punishment under either our state Constitution [citation] or the federal Constitution.” (People v. Byrd, supra, 89 Cal.App.4th at p. 1383.)
With respect to the third Lynch factor, comparing sentences imposed in other jurisdictions for similar offenses, appellant has omitted any evidence to support this claim, and it is his ultimate burden to prove the disparity between California and other jurisdictions. (In re DeBeque (1989) 212 Cal.App.3d 241, 255.)
Although appellant’s sentence is lengthy, he has not demonstrated that it is “grossly disproportionate” to his crimes. (Harmelin v. Michigan, supra, 501 U.S. at p. 1001 [mandatory life term without possibility of parole for nonrecidivist who possessed 1.5 pounds of cocaine].) The application of the sentencing law to appellant did not result in that “exquisite rarity” where the sentence is so harsh as to shock the conscience or offend fundamental notions of human dignity. (People v. Weddle, supra, 1 Cal.App.4th at pp. 1196-1197; see People v. Alvarado (2001) 87 Cal.App.4th 178 [sentence of 15 years to life for rape during commission of burglary for nonrecidivist constitutionally permissible]; People v. Estrada (1997) 57 Cal.App.4th 1270 [25 years to life for rape during burglary for nonrecidivist constitutionally permissible]; People v. Bestelmeyer (1985) 166 Cal.App.3d 520 [129 years for sexual abuse of stepdaughter constitutionally permissible for nonrecidivist].)
Therefore, appellant’s sentence does not violate the prohibition against cruel or unusual punishment as set forth in the California Constitution. (See People v. Romero (2002) 99 Cal.App.4th 1418, 1431-1433.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: WISEMAN, Acting P.J., GOMES, J.