Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 02NF0938 Ronald P. Kreber, Judge.
Tony Rackauckas, District Attorney and Matthew Lockhart, Deputy District Attorney for Plaintiff and Appellant.
Leonard J. Klaif, under appointment by the Court of Appeal, for Defendant and Respondent.
OPINION
MOORE, J.
On remand after a prior appeal, the People appeal the trial court’s ruling that sentencing defendant to life imprisonment with the possibility of parole would violate the California Constitution. Based on the totality of the circumstances, our independent review of the facts of the case requires a different conclusion. The judgment is therefore reversed with regard to the sentence, affirmed in all other respects, and the matter is remanded for resentencing.
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We restate the facts, in part, from our prior unpublished opinion in this case.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, supra, G034302.)
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, Segura filed a motion for alternative sentencing pursuant to People v. Dillon (1983) 34 Cal.3d 441 (Dillon). The court granted the motion and converted the aggravated kidnapping to simple kidnapping, imposing a prison sentence of five years on count two, plus a consecutive term of eight months on count three. Segura pled guilty to count one, and the sentence on that count was stayed pursuant to section 654. The People filed a timely appeal.
II
DISCUSSION
We review the trial court’s ruling that the punishment mandated by the legislature violates 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.” (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. Segura’s motion argued that as applied to her in this case, such a sentence would violate the California 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, fns. 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 respect to the nature of the crime, it was unquestionably serious and committed in a calculated and deliberate manner. The motive, unquestionably, was money. But rather than undertaking a simple robbery, Segura and her codefendant lured the victim into a situation in which he would be terrorized for a substantial period of time.
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.) While the victim here escaped unharmed, the potential for serious injury or death was substantial. Segura’s culpability for kidnapping is no less simple because she did not ultimately commit an even more serious crime.
Contrary to her suggestions otherwise, Segura’s participation in the crime itself was significant. She was responsible for luring the victim to the motel, and nothing about the facts suggest anything other than completely voluntary participation on her part. Indeed, it is unlikely the crime could have been committed without her participation. Unlike the defendant in Dillon, Segura was not an “unusually immature youth . . . [who had] no prior trouble with the law.” (Dillon, supra, 34 Cal.3d at p. 488.) Unlike the defendant in Dillon, Segura also was or should have been able to realize the risk that she was creating.
With respect to the nature of the offender, Segura has a significant criminal history, albeit juvenile. Between 1998 and 2000, she had sustained juvenile petitions for crimes including second degree burglary, drug possession, and giving a false name to a police officer. She later violated probation and escaped from a juvenile facility. While acknowledging drug addiction, she has not taken advantage of opportunities to address her drug habit, and the probation report indicates that she deflects blame and fails to accept responsibility for her actions. Given the totality of the facts, we cannot conclude that the sentence of life imprisonment is grossly disproportionate to the facts of the crime or Segura’s personal culpability.
In reaching the conclusion that the sentence was unconstitutional, the court also considered another recognized method for determining whether a punishment is cruel or unusual. The court compared the potential punishment in this case with more serious crimes in the same jurisdiction and to the same crime in other jurisdictions.
(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 ultimately unhelpful. (See Weddle, supra, 1 Cal.App.4th at p. 1198, fn.8.)
Our independent review therefore leads us to the conclusion that a sentence of life in prison with the possibility of parole is not cruel or unusual as applied to the facts of this case. As such, we remand for resentencing while affirming the judgment in all other respects.
The People have requested, pursuant to Code of Civil Procedure section 170.1, subdivision (c), that on remand this case be assigned to a different judge. We do not find the interests of justice require reassignment from the jurist who is most familiar with this case’s history.
III
DISPOSITION
The sentence is reversed, and the case is remanded for resentencing. The trial court shall amend the abstract of judgment and forward a copy of the amended abstract of judgment to the Department of Corrections. In all other respects, the judgment is affirmed.
WE CONCUR: O’LEARY, ACTING P. J. IKOLA, J.