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People v. Powell

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Jan 25, 2012
D057748 (Cal. Ct. App. Jan. 25, 2012)

Opinion

D057748 Super. Ct. No. RIF118306

01-25-2012

THE PEOPLE, Plaintiff and Respondent, v. DAMEON LAMONT POWELL, Defendant and Appellant.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

APPEAL from a judgment of the Superior Court of Riverside County, Bernard J. Schwartz, Judge. Affirmed.

I.


INTRODUCTION

Defendant Dameon Lamont Powell appeals from a judgment of conviction and sentence after a jury convicted him of a number of offenses related to two separate incidents in which he drove by a fellow gang member's home and discharged a firearm. The shootings were apparently done in retaliation for the fellow gang member having allegedly stolen cocaine from another gang member. Powell was also convicted for offenses relating to his violent conduct at his mother's apartment complex after the second shooting incident, and additional violent conduct while he was in custody.

On appeal, Powell contends (1) that the trial court erred under Penal Code section 654 in imposing consecutive sentences for his convictions for being a felon in possession of a firearm and for grossly negligent discharge of a firearm, since, he contends, he possessed the firearm only in order to discharge it on the two occasions during which he shot at his fellow gang member's residence; (2) that there is insufficient evidence to support both his conviction for actively participating in a criminal street gang under section 186.22, subdivision (a) and the gang enhancements under section 186.22, subdivision (b)(1) relating to the firearm offenses for which he was convicted related to the first shooting incident; and (3) that his sentence of 294 years to life violates the California and/or United States Constitutions' prohibitions against cruel and/or unusual punishment.

Further statutory references are to the Penal Code unless otherwise indicated.

The Eighth Amendment to the United States Constitution prohibits imposition of "cruel and unusual punishment." (Italics added.) Section 17 of article I of the California Constitution prohibits imposition of "[c]ruel or unusual punishment." (Italics added.) For the sake of simplicity, when we discuss the United States and California Constitutions' prohibitions together, we will refer to the prohibited acts as "cruel or unusual punishment."

We find Powell's contentions on appeal to be without merit. We therefore affirm the judgment of the trial court.

II.


FACTUAL AND PROCEDURAL BACKGROUND

A. Factual background

1. The July 4, 2004 incident (counts 1, 2 and 3)

Shortly after midnight on July 4, 2004, Riverside Police Officer Kevin Townsend was dispatched to a home on Beloit Avenue in the Casa Blanca neighborhood of Riverside after a 911 caller reported that shots had been fired. The home belonged to the parents of Charles Newton, who was a member of the 2800 Blocc Crips. Officer Townsend spoke with Charles, who told Townsend that he and his girlfriend, Joy Simmons, had been sitting in the garage of the house when they noticed a green car driving slowly toward the house. Charles told Townsend that he saw Powell, who was alone in a Toyota Corolla, point something out the car's window, after which there was a loud bang and flashes. Charles believed that Powell had shot a gun at him. A few hours before the shooting, Powell had accused Charles of stealing crack cocaine and had punched Charles in the face.

The Casa Blanca area is claimed by two gangs, one of which is the 2800 Blocc Crips.

We refer to members of the Newton family by their first names for purposes of clarity.

Charles recognized the car as belonging to Powell's sister.

Officer Townsend was unable to find shell casings or "strike marks" at the scene.

On July 29, 2004, Detective Richard Wheeler interviewed Charles as a follow-up to Officer Townsend's initial interview. Charles identified Powell as the shooter in a photographic lineup.

Charles's mother, Ludell Newton, heard the gunshots and called 911. Just after the incident, she told police that Charles had been accused of stealing something from someone named "Don Don Lucky." In the 911 call, Ludell identified Don Don Lucky and Powell as having been present at the shooting. However, at trial, Ludell testified that she was "cracked out" at the time of the shooting, and denied having seen the person who did the shooting. Ludell also maintained that she had just been "babbling" when she mentioned Don Don Lucky.

At trial, Charles claimed that he had been "pretty drunk" in the early morning hours of July 4, 2004, and said that he did not remember having seen Powell the previous night or in the early morning. Charles also disclaimed any memory of shots being fired, and denied having told the police that Powell was the person who drove up in Powell's sister's car and fired the shots. Charles denied that he was a member of the 2800 Blocc Crips gang, and he claimed no knowledge as to whether Powell was a member of that gang. Charles also denied having told police that a few hours before the shooting, Powell and Don Don Lucky had accused him of stealing something from Lucky's house, or that Powell had punched him. Charles also purported not to remember whether he had testified at the preliminary hearing, and declined to look at the transcript to refresh his memory.

Charles testified that he believed that it was not good to be a "rat," and that it was a bad idea to steal crack cocaine from a gang.

Charles's sister, Donita, testified that she was standing in the driveway with Charles and his girlfriend when a green car pulled to the curb. Donita identified Powell as the driver and sole occupant of the car, and said that she recognized the car as belonging to Powell's sister. As Donita walked down the driveway, she heard three gunshots coming from the street. Donita ran into the house and called 911, but her mother grabbed the telephone from her and spoke with the 911 operator.

2. The July 27, 2004 incidents (counts 4, 5, 6, 8, 9, 10, 11 and 15)

a. The shooting at the Beloit Avenue house

On the evening of July 27, approximately three weeks after the July 4 shooting, a number of members of the Newton family were outside the house on Beloit Avenue, talking. At around 9:55 p.m., Ludell, Donita, and Donald Newton, Sr., Charles's father, all saw Powell drive up to the house in a gray or white Chevrolet Caprice with its headlights turned off.

According to Ludell, Powell stopped the car, got out, and asked, "Where's Bubba and Charlie?" Powell also shouted the number "28." Ludell grabbed the children who were outside and ran into the house to call 911. Ludell told police that Don Don Lucky had accused Charles of stealing crack cocaine, and said that she was afraid that Charles and Powell were going to fight. Ludell heard gunshots that night, just as she had heard gunshots three weeks earlier. At trial, however, Ludell claimed that she did not remember seeing either a gray Caprice or a gun and testified that "[i]f I said it, I lied." Ludell understood Powell's reference to "28" to mean her area of the Casa Blanca neighborhood, but she denied that this was a reference to the gang.

Donita testified that she was on the front porch with her family and some friends when Powell drove by in a white Chevrolet Caprice. Powell pulled in front of the house, and she heard him yell, "2800 Blocc." Ludell told Donita to get the children and go inside the house. As Donita gathered the children, she heard two shots coming from Powell's car. Donita ran inside the house and called 911, but her mother again grabbed the telephone and spoke with the 911 operator.

Donald, Sr. testified that he saw Powell drive his white car up the street slowly, past the house. After Powell turned around and drove back down the street with the car's headlights off, Donald became concerned for his family's safety and told everyone to go into the house. Powell stopped the car in front of their house and yelled out "2800 Blocc." Powell then continued driving, and Donald heard a popping noise that sounded like a car backfiring. Just after the incident, Donald told police that he heard a gunshot and saw a muzzle flash. At trial, however, Donald testified that he had been smoking crack cocaine and drinking that day, so he was "out of it" and was unable to recall the details of what happened that night.

Family friend Dennis Cooley had been sitting on the porch with the Newton family on the evening of July 27, 2004. He saw Powell get out of a white car and approach the Newton house. Cooley, who had known Powell since Powell was a child, began walking in Powell's direction. Ludell warned Cooley that there had been "some trouble" between Powell and her sons, so Cooley ducked under a fence and sought cover. He then heard three gunshots.

b. Powell's conduct at the North Point Apartments

While police officers were interviewing witnesses at the Beloit Avenue house, they received a dispatch call about a man with a gun at the nearby North Point Apartments. When officers arrived at the apartment complex, they found Powell with a crowd of people around him, behaving in an agitated and confrontational manner. Officers drew their weapons and ordered Powell to get on the ground. Powell was verbally combative with the officers, but did lower himself to the ground. Powell repeatedly asked one officer to go "one-on-one" with him, which the officer understood as a suggestion that Powell and the officer fight.

It took three officers to handcuff Powell. As the officers attempted to escort Powell to a patrol car, he broke away from their hold. The officers then hobbled Powell's legs to prevent him from further attempting to escape.

Officers pieced together what had happened earlier that evening after interviewing witnesses at the scene. Powell's mother lived in the North Point Apartments. She had asked Powell to come and pick up his son, whom she had been babysitting. Powell arrived at his mother's apartment, and then went outside. Powell's mother found him outside engaged in an altercation with Anthony Cowser. Powell's mother pulled Powell back into her apartment. However, she and Powell then got into an argument and she locked him out. Once he was outside, Powell threw a barbeque grill through the front window of the apartment, causing broken glass to fall all over four-year-old Z.A., who was sitting on a couch under the window.

Powell then went to Cowser's apartment, where he became involved in a confrontation with Siteria Owens. He waved a gun, saying that he had "heat." Powell tossed furniture, broke a number of items in Cowser's apartment, and threw a vacuum through the front window.

At trial, Cowser did not want to testify and claimed that he did not recognize anyone in the courtroom as being the person who came into his apartment on July 27, 2004. Cowser denied having told police that Powell had thrown a vacuum through Cowser's front window, and did not recall Powell saying that he had "some heat." In response to the prosecutor playing a tape recording of his 911 telephone call, Cowser identified his voice, but said that he did not recall any of the events that he described during that call.

Rebecca Rivera told police that Powell kicked in the front door of her apartment and then waved a gun around. Rivera's apartment was upstairs from Cowser's apartment. Rivera was afraid that Powell was going to shoot her. Powell indicated that he was looking for Cowser. Rivera did not want to testify at trial, and claimed that she did not recall the events of that evening.

3. The June 24, 2006 assault on Clifford Walton (count 13)

On June 24, 2006, while at the Riverside jail, Powell hit another inmate, Clifford Walton, in the mouth with his fist. The punch knocked Walton off his feet, onto a table, and eventually onto the floor. Walton remained down for 20 to 30 seconds. When he regained consciousness, he was bleeding from his lip.

4. Gang testimony

Riverside Police Sergeant Gary Toussaint testified as a gang expert. He had 22 years of experience in the police department and had spent a number of years investigating criminal street gangs.

Toussaint explained how an individual becomes a member of a gang, and how gang members earn respect by committing acts of violence. According to Toussaint, "respect" in gang culture means fear. Gangs are territorial and use violence to instill fear in members of other gangs and in civilians in their gang's territory.

Toussaint testified that the 2800 Blocc Crips are an African-American gang whose territory is the Casa Blanca area of Riverside. The gang's primary activities in 2004 were selling drugs, committing robberies, and committing violent assaults, including murder, often using firearms.

Toussaint identified at least three members of the 2800 Blocc Crips who had been convicted of a variety of criminal offenses, including armed robbery and homicide. Toussaint was aware that Powell had been convicted of two robberies. When asked to respond to hypothetical questions that tracked the facts of this case, Toussaint expressed his opinion that the shooter was an active participant in a criminal street gang, and that his discharging a gun at a residence on both July 4 and July 27, 2004 would have been done in order to benefit the gang. Toussaint explained that the gang would benefit from actions that were intended to maintain respect, particularly in response to another gang member's act of disrespect in stealing the gang's cocaine. The failure of the gang to retaliate for the theft of the gang's cocaine would be perceived as weakness.

The parties stipulated that Powell had been convicted of a felony offense prior to July 4, 2004. B. Procedural background

On August 5, 2009, the district attorney for Riverside County filed a second amended information charging Powell with two counts of grossly negligent discharge of a firearm (§ 246.3; counts 1 & 4); two counts of being a felon in possession of a firearm (§ 12021, subd. (a)(1); counts 2 & 10); two counts of actively participating in a criminal street gang (§ 186.22, subd. (a); counts 3 & 11); two counts of burglary with a person other than an accomplice present (§§ 459, 667.5, subd. (c)(21); counts 5 & 8); two counts of making criminal threats (§ 422; counts 6 & 7); two counts of assault with force likely to cause great bodily injury (§ 245, subd. (a)(1); counts 9 & 12); one count of battery resulting in serious bodily injury (§ 243, subd. (d); count 13); misdemeanor battery (§ 242; count 14); and misdemeanor obstruction of a police officer (§ 148, subd. (a)(1); count 15). The information also alleged that Powell committed the offenses charged in counts 1, 2, 4, 5, 6, 7, 8, and 10 for the benefit of, or in association with, a criminal street gang (§ 186.22, subd. (b)), and that he personally used a firearm in committing the offenses charged in counts 1, 4, 5, 6, 7, and 8 (§§ 667/1192.7, subd. (c)(8), 12022.5/1192.7, subd. (c)(8)). The information also alleged that Powell had served a prior prison term (§ 667.5, subd. (b)), had been convicted of a serious felony (§ 667, subd. (a)), and had suffered two prior strikes (§ 667, subds. (e)-(i)).

A jury convicted Powell on counts 1 through 6, 8, 10, 11, 13 and 15, and also convicted him of a lesser included misdemeanor offense of simple assault on count 9. The jury acquitted Powell on counts 7 and 14, and was unable to reach a verdict on count 12. The trial court declared a mistrial as to count 12 and later dismissed that count.

With respect to the gang and personal use of a firearm enhancement allegations, the jury found the enhancements true, with the exception of those related to counts 5, 6 and 8.

Powell admitted that he had suffered a serious felony conviction and strike convictions, and that he had served a prior prison term.

On April 9, 2010, the trial court sentenced Powell to 10 consecutive three-strike terms of 25 years to life in state prison with respect to counts 1 through 6, 8, 10, 11 and 13, plus a determinate term of 44 years to life for the enhancements, comprising a total sentence of 294 years to life in state prison.

The trial court imposed concurrent county jail sentences for Powell's misdemeanor convictions on counts 9 and 15.

Powell filed a timely notice of appeal on April 13, 2010.

III.


DISCUSSION

A. The trial court did not err under section 654 in imposing separate punishments for Powell's convictions for negligently discharging a firearm and being a felon in possession of a firearm

Powell contends that the trial court erred in imposing separate punishments for his convictions for negligently discharging a firearm in counts 1 and 4 and for being a felon in possession of a firearm in counts 2 and 10. According to Powell, the July 4 shooting and his possession of the gun on that occasion involved a single intent to shoot at the Newton house, and therefore, section 654 prohibits separate sentences for those two convictions. He similarly argues that the July 27 shooting and his possession of a gun on that date involved a single intent to retaliate against Charles, and, therefore, section 654 prohibits imposition of separate sentences for the negligent discharge of a firearm and felon in possession of a firearm convictions stemming from the July 27 incident.

Section 654, subdivision (a), provides in pertinent part, "[a]n act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." Section 654 therefore " 'precludes multiple punishment for a single act or for a course of conduct comprising indivisible acts. "Whether a course of criminal conduct is divisible . . . depends on the intent and objective of the actor." [Citations.] "[I]f all the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once." [Citation.]' [Citation.]" (People v. Spirlin (2000) 81 Cal.App.4th 119, 129; see also People v. Latimer (1993) 5 Cal.4th 1203, 1207-1208.) However, if the defendant harbored "multiple or simultaneous objectives, independent of and not merely incidental to each other, the defendant may be punished for each violation committed in pursuit of each objective even though the violations share common acts or were parts of an otherwise indivisible course of conduct. [Citation.]" (People v. Cleveland (2001) 87 Cal.App.4th 263, 267-268.)

Whether section 654 applies in a given case is a question of fact for the trial court, which is vested with broad latitude in making its determination. (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312.) The trial court's findings will not be reversed on appeal if there is any substantial evidence to support them. (Id. at p. 1312.) We review the trial court's determination in the light most favorable to the respondent and presume the existence of every fact the trial court could reasonably deduce from the evidence. (Id. at pp. 1312-1313.))

In People v. Jones (2002) 103 Cal.App.4th 1139, 1145, the appellate court concluded "that section 654 is inapplicable when the evidence shows that the defendant arrived at the scene of his or her primary crime already in possession of the firearm." In Jones, the defendant and another man drove by the victim's house, and the defendant shot at the home. (Id. at p. 1142.) The Jones court upheld the trial court's imposition of separate punishment for the defendant's shooting at an inhabited dwelling (§ 246) and his offense of being a convicted felon in possession of a firearm (under former § 12021, subd. (a)(1)), reasoning that under the facts of that case, the "evidence was sufficient to allow the inference that Jones's possession of the firearm was antecedent to and separate from the primary offense of shooting at an inhabited dwelling. Any other interpretation would be patently absurd." (Jones, supra, at p. 1147.)

Similarly, here, the evidence was more than sufficient to demonstrate that Powell possessed the gun he used to commit the shootings on July 4 and July 27 before he arrived at the Newtons' residence. Thus, Powell's possession of the firearm was antecedent to and separate from his offense of negligently discharging a firearm. The trial court therefore did not err in imposing separate sentences for both his convictions for negligently discharging a firearm, as well as his convictions for being a felon in possession of a firearm. B. There is substantial evidence to support the jury's determination that Powell acted with the intent to promote, further or assist in the criminal activity of his criminal street gang when he committed the July 4, 2004 shooting

Powell contends that there is insufficient evidence to support his conviction for actively participating in a criminal street gang (§ 186.22, subd. (a)) in count 3, as well as the gang enhancements (§ 186.22, subd. (b)) charged in connection with counts 1 and 2 (grossly negligent discharge of a firearm and being a felon in possession of a firearm) related to his conduct on July 4, 2004. Powell asserts that there was no evidence from which the jury could conclude that he acted for the benefit of the 2800 Blocc Crips gang, as opposed to acting simply for his own personal benefit, when he drove by the Newton house on July 4 and discharged a firearm. We disagree.

Powell does not challenge his conviction for actively participating in a criminal street gang (§ 186.22, subd. (a)) in count 11, or the jury's true findings with respect to the gang enhancements (§ 186.22, subd. (b)) charged in connection with counts 4 and 10 (grossly negligent discharge of a firearm and being a felon in possession of a firearm) related to his conduct on July 27, 2004.

1. Legal standards

Powell was convicted of violating section 186.22, subdivision (a), which provides: "Any person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang, shall be punished . . . ." The jury also found that Powell violated section 186.22, subdivision (b)(1), which provides: "[A]ny person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished . . . ."

When an appellate court is asked to determine whether the evidence is sufficient to support a conviction for active participation in a criminal street gang under section 186.22, subdivision (a) or a true finding on a gang enhancement under section 186.22, subdivision (b), "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Jackson v. Virginia (1979) 443 U.S. 307, 319; see also People v. Wilson (2008) 44 Cal.4th 758, 806 (Wilson) [same standard applies to questions of sufficiency of evidence to support enhancement].) The reviewing court presumes every fact in support of the judgment that the trier of fact could have reasonably deduced from the evidence. (Wilson, supra, at p. 806.) If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. (People v. Lindberg (2008) 45 Cal.4th 1, 27.) "A reviewing court neither reweighs evidence nor reevaluates a witness's credibility." (Ibid.)

2. The sufficiency of the evidence to support the jury's true findings on the enhancements under section 186.22, subdivision (b)(1) associated with counts 1 and 2

Powell contends that there is insufficient evidence that he discharged the firearm and/or possessed the firearm on July 4, 2004 with the "specific intent to promote, further, or assist in any criminal conduct by" his fellow 2800 Blocc Crips gang members, and that the jury's findings as to the enhancements on those two counts must be reversed. Powell thus challenges the sufficiency of the evidence with respect to the second prong of the section 186.22, subdivision (b)(1).

In making this argument, Powell concedes that in People v. Albillar (2010) 51 Cal.4th 47, 64-67, the California Supreme Court interpreted section 186.22, subdivision (b)(1) as requiring a showing only that the defendant had the specific intent to promote, further, or assist "any criminal conduct [by gang members], without a further requirement that the conduct be 'apart from' the criminal conduct underlying the offense of conviction sought to be enhanced." Powell further acknowledges that "the specific intent element is satisfied if there is substantial evidence that the defendant acted with the specific intent to commit the charged offense for the benefit of his gang."

Powell nevertheless asserts that there is insufficient evidence that he acted with the specific intent to benefit his gang through his conduct on July 4. According to Powell, the gang expert's testimony "did not address how appellant's act of driving by the house of someone in his very own gang and shooting at the house of that person because the person stole appellant's drugs was done for a gang and not for appellant's personal benefit." Powell points out that he "did not yell out gang phrases on July 4, nor did he display gang signs or wear gang clothes." He also notes that he was the sole shooter and occupant of the car. From this, Powell contends, it "is fair to infer that appellant's act of shooting at the Newton house was because he, personally, was angry at Charles for stealing the drugs." However, the question is not whether the evidence is such that the jury could have reasonably determined that Powell acted with the intent to avenge a personal grudge, but, rather, whether there is substantial evidence from which the jury could have determined that he acted with the intent to benefit his gang, and not simply himself. We conclude that there is abundant evidence from which the jury could have concluded that Powell committed the July 4 offenses for the benefit of his gang.

First, the testimony of the gang expert provided substantial evidence from which the jury could conclude that Powell was acting to benefit his gang when he possessed a firearm and shot at the Newton home on July 4. The gang expert explained that gangs rely on violence and fear, and that they use fear to keep nongang members in their territory from cooperating with law enforcement or reporting crimes and testifying at trial. He testified that the goal of a criminal street gang is to instill fear in the surrounding community in order to empower the gang members to commit more crimes. The expert expressed his opinion that Powell was an active member of the 2800 Blocc Crips gang, noting that Powell had a gang moniker, gang tattoos, friends who were also in the gang, and described himself as being a part of the gang.

When provided with a hypothetical based on the facts of the July 4 shooting, the gang expert testified that it was his opinion that the shooting was committed for the benefit of, and possibly at the direction of, the 2800 Blocc Crips. He based this opinion on the fact that the shooting was committed in the gang's territory, and appears to have been done for the purpose of perpetuating the fear that empowers gang members to continue to commit crimes without worrying about being caught.

The evidence of Powell's virtually identical conduct on July 27, when he expressly called out his gang affiliation, provides further support for the jury's true finding on the gang enhancement related to the July 4 offenses. Powell essentially concedes that the evidence is sufficient to support the jury's conclusions that he committed the July 27th shooting with the intent to benefit the gang, at least in part due to the fact that he made a gang-related statement at that time. The jury could have inferred that Powell entertained similar intents during the two incidents, given that the incidents were essentially identical. In other words, the fact that Powell called out his gang affiliation during one of the shootings is circumstantial evidence that in committing the other shooting, he intended to benefit the gang. We conclude that the evidence related to the July 27 shooting, in addition to the evidence supplied by the gang expert with respect to the July 4 shooting, constituted substantial evidence to support the jury's true finding on the gang enhancement with respect to Powell's two July 4 offenses.

3. The sufficiency of the evidence to support the conviction for actively participating in a criminal street gang as charged in count 3

Powell argues that "[t]he same analysis is equally true of the substantive gang offense in count 3 [as the gang enhancements related to counts 1 and 2.]" Specifically, Powell contends that "[t]he evidence in this case provided no basis upon which the jury could decide if appellant was acting for his own benefit or in conjunction with his gang," and, therefore, "cou[n]t 3 suffers from the same evidentiary deficiency as the gang enhancements on counts 1 and 2."

For the same reasons we conclude that there is substantial evidence to support the jury's true findings on the gang enhancements related to counts 1 and 2, we conclude that there is substantial evidence to support Powell's conviction for actively participating in a street gang related to his July 4 conduct, as charged in count 3. C. Powell's sentence does not constitute cruel or unusual punishment under either the federal or state constitutions

Powell contends that his sentence of 294 years to life in prison violates the federal and state Constitutions' prohibitions against cruel or unusual punishment. We find this argument to be without merit.

1. Powell's sentence does not violate the California Constitution

A sentence may violate the state constitutional ban on cruel or unusual punishment " 'if . . . it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.' " (People v. Dillon (1983) 34 Cal.3d 441, 478 (Dillon).) In People v. Romero (2002) 99 Cal.App.4th 1418, 1431-1432, the court outlined the well-established framework for considering claims of cruel or unusual punishment under the state Constitution:

" 'In order to determine whether a particular punishment is disproportionate to the offense for which it is imposed, we conduct a three-pronged analysis. [Citations.] 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.]" (Ibid.)

A defendant must overcome a considerable burden in order to establish that the sentence is "disproportionate to his level of culpability," and successful challenges to proportionality are an "exquisite rarity." (People v. Weddle (1991) 1 Cal.App.4th 1190, 1196-1197.)

Powell concedes that his current offenses "were numerous." Nevertheless, he asserts that the jury "did not fully accept the prosecution's characterization of [him]." He further notes that although his "conduct must have been frightening to the people involved, . . . appellant's conduct occurred within the context of a gang culture." Powell then notes that some of the victims were, themselves, gang members, and that some of them were using crack cocaine at the time of the shootings. However, none of this discounts the fact that Powell's current offenses were virtually all violent in nature and that they were quite serious. In addition, Powell committed all of the offenses alone, and thus bears all of the responsibility for what occurred.

Powell next contends that his 294-year sentence "leaves no room for rehabilitation." He also asserts that his criminal history consists of two strike offenses, involving robbery convictions, and that there is nothing in the record indicating that these offenses involved physical violence. However, "recidivism is a legitimate factor to consider when imposing a greater sentence than for a first time offense." (People v. Cuevas (2001) 89 Cal.App.4th 689, 704-705; see also People v. Martinez (1999) 71 Cal.App.4th 1502, 1512.) "[S]ociety is warranted in imposing increasingly severe penalties on those who repeatedly commit felonies. If increased penalties do not deter the repeat offender, then society is warranted in segregating that person for an extended period of time." (People v. Martinez, supra, at p. 1512; see also People v. Cooper (1996) 43 Cal.App.4th 815, 823-824 (Cooper) ["Under the Three Strikes law, defendants are punished not just for their current offense but for their recidivism. Recidivism in the commission of multiple felonies poses a danger to society justifying the imposition of longer sentences for subsequent offenses. [Citation.]"].)

Further, contrary to Powell's suggestion that there is nothing in the record indicating that his prior strikes involved physical violence, Powell's probation report demonstrates that at least one of Powell's robberies involved significant violence, in that the victim suffered multiple gunshot wounds (including a gunshot wound to the face) after he was confronted by Powell and another individual, both of whom were wearing ski masks, inside the victim's home. Approximately a week after this event, Powell and two others accosted two victims who were sitting on a bench at a bus stop and demanded money and other items. Moreover, Powell has a lengthy juvenile criminal history, and the conduct for which he was convicted in this case began only three months after Powell was released from prison on parole in April 2004, after his robbery convictions as an adult.

In addition, we note that robbery is inherently a violent crime. (See, e.g., People v. Brito (1991) 232 Cal.App.3d 316, 321 [robbery is an inherently dangerous felony].)

In fact, Powell's repeated criminal behavior is precisely what the three strikes law is intended to address:

"The primary goals of recidivist statutes are: '. . . to deter repeat offenders and, at some point in the life of one who repeatedly commits criminal offenses serious enough to be punished as felonies, to segregate that person from the rest of society for an extended period of time. This segregation and its duration are based not merely on that person's most recent offense but also on the propensities he has demonstrated over a period of time during which he has been convicted of and sentenced for other crimes. Like the line dividing felony theft from petty larceny, the point at which a recidivist will be deemed to have demonstrated the necessary propensities and the amount of time that the recidivist will be isolated from society are matters largely within the discretion of the punishing jurisdiction.' " (Cooper, supra, 43 Cal.App.4th at p. 824, quoting Rummel v. Estelle (1980) 445 U.S. 263, 284-285.)

Powell next compares his punishment with punishments that are prescribed for more serious crimes in California. He asserts that "California punishes far more serious and violent crime less severely than the sentence imposed upon appellant." Powell notes, for example, that his sentence "far exceeds" the sentences imposed "for the most violent and serious felonies in California"—offenses such as second degree murder, voluntary manslaughter, sexual assault on a minor, mayhem, kidnapping, and first degree robbery. We reject Powell's attempt to compare his sentence under the three strikes law to the sentences imposed for serious or violent crimes in the absence of prior strikes. (See, e.g., Romero, supra, 99 Cal.App.4th at p. 1433 [" ' "Because the Legislature may constitutionally enact statutes imposing more severe punishment for habitual criminals, it is illogical to compare [defendant's] 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." [Citation.]' [Citation.]"].)

Powell also compares his sentence to punishments for "worse crimes" in other jurisdictions, asserting that his sentence "exceeds the most stringent punishment in the nation, aside from death." For instance, Powell compares his sentence with the sentences for murder in other states. He also argues that the only other state in which he would have been subject to that state's recidivist statutes would be Mississippi, because other states require that the third conviction be a violent felony involving physical harm or they have a "washout period that would have applied to appellant." However, the fact " '[t]hat California's 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." [Citation.] Otherwise, California could never take the toughest stance against repeat offenders or any other type of criminal conduct.' " (Romero, supra, 99 Cal.App.4th at p. 1433, quoting People v. Martinez, supra, 71 Cal.App.4th at p. 1516.)

In sum, we disagree with Powell's claim that the nature of his offense and the totality of the circumstances render his sentence so grossly disproportionate to his crime that it "shocks the conscience and offends fundamental notions of human dignity." (In re Lynch (1972) 8 Cal.3d 410, 424, fn. omitted.)

2. Powell's sentence does not violate the federal Constitution

Powell contends that his sentence violates the Eighth Amendment's prohibition against cruel and unusual punishment. The Eighth Amendment "contains a 'narrow proportionality principle' that 'applies to noncapital sentences.' " (Ewing v. California (2003) 538 U.S. 11, 20 (Ewing) (plur. opn. of O'Connor, J.), quoting Harmelin v. Michigan (1991) 501 U.S. 957, 996-997.)

Chief Justice Rehnquist and Justice Kennedy joined the plurality opinion, while Justices Scalia and Thomas filed opinions concurring in the judgment, concluding that the Eighth Amendment contains no proportionality principle. (Ewing, supra, 538 U.S. at pp. 31-32 (conc. opns. of Scalia & Thomas, Js.).)
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In Ewing, the United States Supreme Court considered whether a sentence of 25 years to life under California's three strikes law violated the Eighth Amendment. Ewing was convicted of grand theft for shoplifting three golf clubs valued at $1,200. He had previously been convicted of four serious felonies, including a robbery and three burglaries stemming from a single case. (Ewing, supra, 538 U.S. at pp. 17-18, 20, 28.) In addition to the serious felony convictions, Ewing's criminal record included numerous theft-related convictions, and convictions for drug possession, battery, burglary, unlawful possession of a firearm, and trespassing. (Id. at p. 18.)

The United States Supreme Court concluded that Ewing's sentence did not violate the Eighth Amendment, reasoning that "Ewing's sentence is 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.) The court noted that although Ewing's sentence was a long one, "it reflect[ed] a rational legislative judgment, entitled to deference, that offenders who have committed serious or violent felonies and who continue to commit felonies must be incapacitated." (Id. at p. 30.)

We conclude that this same reasoning applies to the sentence imposed in Powell's case. Like Ewing, Powell has been convicted of multiple felony offenses in the past, and he was convicted of a number of violent felony offenses, committed at different times, in the current case. Given Powell's criminal record, and the severity of his current offenses, we cannot conclude that Powell's sentence constitutes cruel and unusual punishment under the United States Constitution.

IV.


DISPOSITION

The judgment of the trial court is affirmed.

_________________________

AARON, J.

WE CONCUR:

_________________________

NARES, Acting P. J.

_________________________

McDONALD, J.


Summaries of

People v. Powell

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Jan 25, 2012
D057748 (Cal. Ct. App. Jan. 25, 2012)
Case details for

People v. Powell

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. DAMEON LAMONT POWELL, Defendant…

Court:COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

Date published: Jan 25, 2012

Citations

D057748 (Cal. Ct. App. Jan. 25, 2012)