From Casetext: Smarter Legal Research

People v. Perkins

Court of Appeals of California, Fourth Appellate District, Division One.
Nov 19, 2003
D040911 (Cal. Ct. App. Nov. 19, 2003)

Opinion

D040911.

11-19-2003

THE PEOPLE, Plaintiff and Respondent, v. LONNIE DONELL PERKINS, Defendant and Appellant.


After Perkins waived his right to a jury, the court convicted him of possessing a weapon in prison (Pen. Code, § 4502, subd. (a)) and found true two prior serious and violent felony convictions under the "Three Strikes" law. (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d).) The court applied the Three Strikes law and sentenced Perkins to a 25-years-to-life term in state prison to be served consecutively to any sentence Perkins was currently serving. Perkins appeals, contending the court abused its discretion by denying his motion to strike a strike; and (2) his sentence violates the California and federal constitutional prohibition against cruel and unusual punishment. We affirm.

STATEMENT OF FACTS

On August 22, 2001, while Perkins was an inmate at the Imperial County jail, he was searched by two deputy sheriffs, who found a shank concealed in Perkinss boxer shorts.

Perkins testified that when he arrived at the jail, an Hispanic inmate told him that authorities do not usually place African-Americans with Hispanics. Perkins was concerned for his safety because (1) he had had prior encounters with Hispanics and with the Mexican Mafia while in jail; (2) inmates in that housing unit had been accused of stabbing someone 200 times; and (3) he observed inmates rigging doors. Perkins found the metal portion of the shank on the recreation yard and constructed the handle, which symbolized his gang, out of materials sent to him by the gang. Perkins did not use nor did he intend to use the shank offensively but had it for protection only.

During the sentencing hearing, Perkins moved to strike the strikes under People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529-530 (Romero). The court found Perkins fear for his safety did not rise to the level of a mitigating circumstance. The court remarked that while Perkins acted courteously and in a dignified manner at court, he might not behave that way in prison. The court then recognized its discretion to strike the strikes but declined to do so.

DISCUSSION

I. Strike Priors

Perkins contends the court abused its discretion when it denied his motion to strike his prior serious and/or violent felony convictions. We review the courts decision not to strike a prior for abuse of discretion. (People v. Williams (1998) 17 Cal.4th 148, 162.) A court abuses its discretion when its ruling " falls outside the bounds of reason under the applicable law and the relevant facts." (Ibid.) "[I]n ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law, on its own motion, in furtherance of justice pursuant to Penal Code section 1385(a), or in reviewing such a ruling, the court in question 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 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 and/or violent felonies." (People v. Williams, supra, 17 Cal.4th at p. 161.)

Applying these principles, we conclude Perkins is the type of career criminal to whom the Three Strikes law is addressed. In the 21 years prior to this offense, Perkins was convicted of nine felonies and served five prison terms. In addition to his prior serious and violent felony convictions for armed robbery, Perkins was convicted of possessing of a weapon in prison (§ 4502); and two charges of assault with a deadly weapon were handled administratively by the Department of Corrections. At the time of this search, Perkins was awaiting trial for stabbing to death an unarmed inmate and was subsequently convicted of first-degree murder. (§§ 187, subd. (a), 189.) Given Perkinss violent behavior in prison, as well as his history of felony convictions outside prison, the court properly declined to strike either of his serious and/or violent prior convictions.

II. Cruel and Unusual Punishment

Perkins contends his sentence constitutes cruel and unusual punishment under the California and the United States constitutions. The California constitution prohibits punishment "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.) The In re Lynch court formulated a three-pronged analysis to determine whether a sentence is unconstitutional. First, we examine the nature of the offense and the offender by (1) considering the "totality of the circumstances" of the specific crime as the offender committed it; and (2) focusing on "the defendants individual culpability as shown by such factors as his age, prior criminality, personal characteristics, and state of mind." (Id. at p. 425; People v. Dillon (1983) 34 Cal.3d 441, 479.) Second, we compare the punishment with the penalty for more serious crimes committed in California. (In re Lynch, supra, 8 Cal.3d at p. 426.) Finally, we compare the punishment imposed to the penalty for the same offense in different jurisdictions. (Id. at p. 427.)

Perkins contends his nonviolent crime was less serious because there was no evidence he intended to use the shank offensively. We disagree because Perkinss prior record shows the seriousness of his having a weapon in prison. As discussed above, Perkinss history includes unlawful possession of a weapon while in prison, two charges of assault with a deadly weapon, and the murder of an unarmed inmate. Given his prior history of violence in prison, Perkinss possession of a shank cannot be viewed as a less serious offense.

We next look at the nature of the offender. Perkins is an admitted gang member with a lengthy, violent record that began in 1980. He was convicted of two felonies as a juvenile, including one conviction for attempted robbery and battery. As an adult, he was convicted of seven felonies and was sentenced to prison four times. It is of no help to Perkins that one of his strikes was committed in 1983 because Perkins continued to offend — even while in prison — since that time. "When faced with recidivist defendants such as [Perkins], California appellate courts have consistently found the three strikes law is not cruel and unusual punishment." (People v. Mantanez (2002) 98 Cal.App.4th 354, 359.)

When we compare Perkinss sentence to other sentences in California, we find no disproportion rising to constitutional dimensions. Although Perkinss sentence is comparable to the sentence for first-degree murder, " this step is inapposite to three strikes sentencing because it is a defendants "recidivism in combination with current crimes that places him under the three strikes law. Because the Legislature may constitutionally enact statutes imposing more serious punishment for habitual criminals, it is illogical to compare [defendants] punishment for his offense, which includes his recidivist behavior, to the punishment of others who have committed more serious crimes but have not qualified as repeat felons." " (People v. Romero (2002) 99 Cal.App.4th 1418, 1433.)

When comparing this sentence to sentences in other states, Perkins contends his sentence is unconstitutional because the Three Strikes law is among the most severe in the nation. We disagree: "That Californias punishment scheme is among the most extreme does not compel the conclusion that it is unconstitutionally cruel or unusual. This state constitutional consideration does not require California to march in lockstep with other states in fashioning a penal code. It does not require conforming our Penal Code to the majority rule or the least common denominator of penalties nationwide. " (People v. Martinez (1999) 71 Cal.App.4th 1502, 1516.) Perkinss sentence does not constitute cruel and unusual punishment under the California constitution.

Perkins also contends his sentence violates the Eighth Amendment prohibition on cruel and unusual punishment. In recent companion cases, the United States Supreme Court determined that indeterminate sentences imposed under Californias Three Strikes law did not violate the Eight Amendment. (Ewing v. California ( 2003) 538 U.S. 11 ; Lockyer v. Andrade ( 2003) 538 U.S. 63.) In Ewing, the court upheld a judgment imposing a of 25-years-to-life-sentence under the Three Strikes law on a defendant who stole three golf clubs and was convicted of a wobbler theft offense. (Ewing, supra, 538 U.S. 11 at pp. ___-___ [123 S.Ct. at pp. 1185-1190].) Justice OConnors plurality opinion stated: "In weighing the gravity of Ewings offense, we must place on the scales not only his current offense, but also his long history of felony recidivism." (Ewing, supra, 538 U.S. 11 at pp. ___-___ [123 S.Ct. at pp. 1189-1190].) In separate concurring opinions, Justices Scalia and Thomas agreed with the plurality opinions conclusion that Ewings sentence under the Three Strikes law did not violate the Eighth Amendments prohibition against cruel and unusual punishment. (Ewing, supra, 538 U.S. 11 at pp. ___-___ [123 S.Ct. at pp. 1190-1191].) Applying Ewings reasoning to this case, which involves a long history of recidivism and includes violent acts in prison, we conclude Perkinss 25-years-to-life sentence does not violate the Eight Amendments prohibition of cruel and unusual punishment.

DISPOSITION

The judgment is affirmed.

WE CONCUR, McCONNELL, P. J., BENKE, J.


Summaries of

People v. Perkins

Court of Appeals of California, Fourth Appellate District, Division One.
Nov 19, 2003
D040911 (Cal. Ct. App. Nov. 19, 2003)
Case details for

People v. Perkins

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. LONNIE DONELL PERKINS, Defendant…

Court:Court of Appeals of California, Fourth Appellate District, Division One.

Date published: Nov 19, 2003

Citations

D040911 (Cal. Ct. App. Nov. 19, 2003)