Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 02NF0938. Ronald P. Kreber, Judge.
Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Ronald A. Jakob and David Delgado-Rucci, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MOORE, J.
On remand after a prior appeal, defendant appeals the trial court’s ruling sentencing defendant to life imprisonment with the possibility of parole. He argues this sentence violates the California Constitution’s prohibition against cruel or unusual punishment. We find this argument to be without merit and affirm.
I
FACTS
We restate the facts, in part, from our prior unpublished opinion in this case. (People v. Segura (Feb. 27, 2006, G034302) [nonpub. opn.].)
“One early morning in March 2002, Marco Guerrero was driving home on Lincoln Avenue in Anaheim when he noticed Segura walking on the side of the street. He pulled his car into a parking lot and asked Segura if she wanted a ride. Segura declined. Guerrero then asked Segura if she was working and she said, ‘Yes.’ Through the open car window, Guerrero and Segura negotiated a price of $30 for sexual services. Segura mentioned that she was staying at a nearby motel. Guerrero saw a police car and decided to drive into the motel parking lot. Segura told him she was staying in room 214 and that she would wait for him there. Guerrero parked his car, climbed a set of stairs, and entered room 214.
“Once inside, Segura directed Guerrero to have a seat on the bed. As soon as Guerrero sat down, he heard someone behind him. When Guerrero turned around, he saw Rials, who was wearing a black mask and carrying a knife. Rials said, ‘Don’t [expletive deleted] move. Don’t [expletive deleted] move because I’m going to kill you.’ Rials held the knife to Guerrero’s throat and said, ‘Okay, I don’t want to kill you. I just want your money.’
“Rials forced Guerrero to his feet. He handed the knife to Segura, who continued to hold it to Guerrero’s neck, and tied Guerrero’s hands behind his back. Rials searched Guerrero’s pants pockets and retrieved his wallet. Segura picked through the wallet looking for money. Rials asked if Guerrero had any family or if he was married and threatened to kill Guerrero if he did anything. Segura made a telephone call. Rials told Guerrero she was talking to a friend who would now have Guerrero’s name and address and would kill him if he talked to police.
“Rials decided to take Guerrero to an ATM machine to get some money. Again, he threatened to hurt Guerrero if he did ‘something stupid.’ Rials untied Guerrero’s hands and Segura led him out of the motel room. Rials took off his mask and followed them to Guerrero’s car. Guerrero drove to an ATM on the corner of Brookurst and Ball Road with Rials in the front passenger seat and Segura in the middle of the back seat. Rials threatened to shoot Guerrero if he moved. Once they arrived at the ATM, Rials and Guerrero exited the car and Rials handed a card to Guerrero. Guerrero approached the ATM only to discover that it was closed. A video surveillance camera recorded Guerrero’s aborted effort.
“Guerrero and Rials walked back to the car, and Rials and Segura decided to force Guerrero to drive to another ATM. Rials picked up the knife and directed Guerrero to an ATM at Harbor Boulevard and Lincoln. This time Segura approached the ATM with Guerrero, where he successfully withdrew $200. While Segura and Guerrero stood at the ATM, Rials searched the car’s console.
“Rials asked Guerrero to drive them back to the motel. Guerrero agreed to give them a ride and during the trip Segura said a friend was following them, which frightened Guerrero. Guerrero parked his car in the motel parking lot and let Segura and Rials get out. Rials thanked Guerrero for his cooperation and told him to go home and ‘forget about this happening. We know where you live. We have a lot of friends. And don’t try to do anything stupid.’ Rials took Guerrero’s cell phone, a tool kit, and some bank statements from Guerrero’s trunk before he and Segura walked back to their motel room. At this point, Guerrero was free to leave.
“On his way home, Guerrero flagged down a police officer and reported the incident. Several police officers went to the motel just as Rials and Segura walked out of room 214. Police officers found several people, including Rials and Segura, in room 222. A search of room 214 yielded Guerrero’s bank statements, a cell phone bill, a tool kit, and a white cord. The officers did not find a mask, cash, or a cell phone. An 18-inch knife with a seven- or eight-inch blade was found on the walkway between rooms 214 and 222. Guerrero identified Rials and Segura as the perpetrators at an in-field identification.”
Segura and Rials (defendants) were charged by first amended information with first degree robbery of a person using an automated teller machine (ATM) (Pen. Code, §§ 211, 212.5, subd. (b), 213, subd. (a)(1); count one), kidnapping for the purpose of committing a robbery (§ 209, subd. (a); count two), carjacking (§ 215, subd. (a); count three), and kidnapping during the commission of a carjacking (§ 209.5, subd. (a); count four). It was further alleged Rials used a knife in the commission of counts one through four.
All further statutory references are to the Penal Code unless otherwise stated.
The jury found defendants guilty on count two and the lesser included offense, vehicle theft, to count three. The jury also found the knife-use allegation true with respect to counts two and three. Defendants were found not guilty of count four, and the jury deadlocked on count one. The court declared a mistrial on count one and struck the knife-use finding on count three.
As we noted in the prior appeal: “At sentencing, the court modified the verdict on count two from kidnapping for robbery (§ 209) to the lesser included offense of simple kidnapping (§ 207), relying on section 1181, subdivision (6). Pursuant to an agreement with the court, defendants pleaded guilty to robbery as charged in count one of the first amended information and Rials admitted he used a knife in the commission of that crime. The court let stand the jury’s knife-use finding with respect to count two and the jury’s verdict on count three. Segura received a seven-year prison term. The court sentenced Rials to 11 years and 4 months. [Footnote omitted.] The People filed a timely notice of appeal.” (People v. Segura (Feb. 27, 2006, G034302) [nonpub. opn.].)
In the prior appeal, we agreed with the People that section 1181, subdivision (6) may not be used to avoid the mandatory indeterminate sentence of life with the possibility of parole, the prescribed sentence for a conviction of kidnapping for robbery. (§ 209, subd. (b)(1).) We reversed the court’s order modifying the verdict on count two, vacated several admissions and pleas, and remanded for a new hearing on defendants’ motions for alternative sentencing.
On remand, both Rials and Segura filed motions for alternative sentencing pursuant to People v. Dillon (1983) 34 Cal.3d 441 (Dillon). The court granted the motion as to Segura but denied it as to Rials and sentenced him to life imprisonment with the possibility of parole. Rials filed the instant appeal.
II
DISCUSSION
We review the trial court’s ruling that the punishment mandated by the legislature does not violate the California Constitution’s prohibition on cruel and unusual punishment de novo. “Whether a punishment is cruel or unusual is a question of law for the appellate court, but the underlying disputed facts must be viewed in the light most favorable to the judgment. [Citations.]” (People v. Martinez (1999) 76 Cal.App.4th 489, 496.) “Because it is the Legislature which determines the appropriate penalty for criminal offenses, defendant must overcome a ‘considerable burden’ in convincing us his sentence was disproportionate to his level of culpability. [Citation.]” (People v. Weddle (1991) 1 Cal.App.4th 1190, 1196-1197 (Weddle).)
Section 209, subdivision (a) requires a sentence of life with the possibility of parole in cases of kidnapping for robbery not resulting in death or bodily harm. Rials argues that as applied to him, this sentence violates the California Constitution as well as the Eighth Amendment of the United States Constitution. “Because choosing the appropriate penalty is a legislative weighing function involving the seriousness of the crime and policy factors, the courts should not intervene unless the prescribed punishment is out of proportion to the crime. [Citation.]” (People v. Felix (2003) 108 Cal.App.4th 994, 999-1000 (Felix).) Thus, a mandatory punishment may not be imposed 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.” (In re Lynch (1972) 8 Cal.3d 410, 424, fn. omitted; see Dillon, supra, 34 Cal.3d at p. 487, fn. 38.)
“Dillon, relying on Lynch, establishes a ‘two-prong’ analysis. First, the crime itself must be reviewed, both in the abstract and in view of the totality of the circumstances surrounding its commission, ‘including such factors as its motive, the way it was committed, the extent of defendant’s involvement, and the consequences of his acts . . .,’ to determine whether a particular punishment is grossly disproportionate to the crime for which it is inflicted. [Citations.] Secondly, the court must consider ‘the nature of the offender’ and inquire ‘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.’ [Citations.]” (Weddle, supra, 1 Cal.App.4th at pp. 1197-1198, fn. omitted.)
We review the facts independently in the light most favorable to the judgment. (People v. Martinez, supra, 76 Cal.App.4th at p. 496.) With regard to the Dillon factors, we begin with the nature of the offense, kidnapping for robbery. Kidnapping is an inherently dangerous crime that poses a significant threat of violence or death. (See People v. Dominguez (2007)39 Cal.4th 1141, 1158-1159 [noting that kidnapping is among the inherently dangerous crimes included in section 189]; People v. Watson (1981) 30 Cal.3d 290, 300.) The motive in this case was indisputably pecuniary, and it was committed in a manner that created undue and extended terror for the victim. He was repeatedly threatened with physical harm. Rials does not dispute that the crime was “serious and his conduct was reckless and dangerous to society.”
With respect to the nature of the offender, Rials suffered an abusive childhood, developmental problems, and was diagnosed with the neurological disorder Tourette’s syndrome at age 13. He had a severe and unaddressed substance abuse problem. Nonetheless, the facts do not support the contention that Rials was unable to distinguish right from wrong. Moreover, he failed to take advantage of any programs during his numerous periods on probation.
Rials admits he has a criminal record spanning 10 years. He argues, however, that his prior crimes do not suggest criminal sophistication. Perhaps, but this crime certainly does. It was not merely an impulsive robbery, but a kidnapping that demonstrated a degree of planning. At its conclusion, Rials took the victim’s driver’s license and implicitly threatened further violence if he went to the police.
Given the nature of the offense and the offender, we do not find that a sentence of life imprisonment with the possibility of parole is grossly disproportionate under the Dillon factors. This was a serious crime, and while it is fortunate that the victim was not physically harmed, it does not diminish the severity of the offense. “Reducing a sentence under Dillon ‘is a solemn power to be exercised sparingly only when, as a matter of law, the Constitution forbids what the sentencing law compels.’ [Citation.]” (Felix, supra, 108 Cal.App.4th at p. 1000.) Exercising that power is simply inappropriate here.
Rials further urges that his sentence is disproportionate when compared to other crimes in California and to kidnapping in other states. (In re Lynch, supra, 8 Cal.3dat pp. 426-427; People v. Zepeda (2001) 87 Cal.App.4th 1183, 1214.) While such comparisons can be instructive, they are not decisive. Because the Dillon factors here do not lead to the conclusion that the sentence was grossly disproportionate, we find such comparisons unhelpful in this case. (See Weddle, supra, 1 Cal.App.4th at p. 1198, fn.8.) Thus, we find that Rials’s claim under the California Constitution fails.
With respect to Rials’s federal claim, it is equally unmeritorious. Eighth Amendment challenges to sentences under federal law are limited to cases where the sentence is grossly disproportionate to the crime. (U.S. v. Bland (9th Cir. 1992) 961 F.2d 123, 129.) “The threshold determination in the eighth amendment proportionality analysis is whether [the defendant’s] sentence was one of ‘the rare cases in which a . . . comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality.’” (Ibid.) For the same reasons discussed above, this is not such a case. On its face, a sentence of life with the possibility of parole for kidnapping does not create an inference of disproportionality. Rials has no cognizable claim under the federal Constitution.
III
DISPOSITION
The judgment is affirmed.
WE CONCUR: O’LEARY, ACTING P. J., IKOLA, J.