Opinion
E031886.
7-7-2003
THE PEOPLE, Plaintiff and Respondent, v. GEORGE LEWIS THORNTON, Defendant and Appellant.
J. Michael Roake, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Pamela A. Ratner Sobeck, Supervising Deputy Attorney General, and David Delgado-Rucci, Deputy Attorney General, for Plaintiff and Respondent.
This is the fifth appeal of the sentence imposed for George Lewis Thorntons conviction of second degree robbery, accompanied by true findings that he suffered three strike priors and two serious felony priors. In the fourth appeal, we determined that the trial court had abused its discretion in granting his motion to dismiss two of the strike priors because (1) the factual findings concerning the stricken priors, which were critical to the trial courts decision, were not supported by the record; (2) the trial courts conclusion that Thorntons background, character and prospects were not sufficiently negative to justify a 25-year-to-life term was an inversion of the appropriate analysis; and (3) the trial courts conclusion that most of Thorntons prior record was nonviolent was factually incorrect, and even if correct should not have been an overriding consideration in ruling upon his motion to dismiss. (See People v. Thornton (Nov. 8, 2001, E029091 [nonpub. opn.].)
Subsequent to this last opinion, Thornton reasserted his motion to dismiss, which the trial court denied, saying, "Still[,] today . . ., the trial court . . . is of the opinion that . . . Thornton does not fit within the spirit of the Three Strikes Law, and that if free to exercise my discretion, I would exercise it by striking two of the strikes for all of the reasons that I have previously stated. [P] However, there are commands that I not do that, and I will not do that, because of the instructions from the Court of Appeal." The trial court sentenced Thornton to 25 years to life, plus 10 years. During a subsequent hearing in which the trial court determined not to recall Thorntons sentence due to his then current medical condition, the court said, ". . . [Penal Code section] 1385 does not permit a trial court to [dismiss] a strike as a simple matter of compassion to an individual with a terminal illness . . . . If I am wrong, then I would use that basis to [dismiss] a strike."
Thornton has HIV and hepatitis C.
In his opening brief, Thornton states that the trial court "suggested that the evidence [of his medical condition] did not assist in evaluating [his] prospects [for committing future crimes]." In fact, the trial court concluded, "The current state of medical science is they dont know with any degree of certainty . . . [P] . . . on the subject of . . . Thorntons prospects . . ., particularly his dangerousness . . . if he were to be released after a determinate sentence. . . . [P] . . . Either [the] HIV virus succeeds in killing [him] or he will be alive and able to move about and function as a member of society, perhaps breaking the law, perhaps not . . . ." Despite this, and without support from the record, Thornton asserts that he "will enjoy a short lifespan . . ." and "the information [about his medical condition] is important as the majority opinion in Ewing [v. California (2003) ___ U.S. ___ ] addresses recidivism and rehabilitation . . . ." However, Thornton points to no error the trial court made in concluding that information about his medical condition was unhelpful in determining whether he would be physically capable of reoffending once he served a determinate term, should his motion to dismiss be granted.V
Thornton appeals the trial courts denial of his motion to dismiss his strike priors, contending that the trial court misunderstood this courts directive and the scope of its discretion. It did not. He also asserts that his sentence is cruel and unusual. We disagree.
As we stated in the opinion emanating from Thorntons third appeal, "The trial court . . . erred in its second denial of Thorntons motion to dismiss by concluding that we held, or even suggested, in the . . . opinion [emanating from the] . . . second [appeal] . . . that it lacked the discretion to dismiss any of the strike priors. Of course, the trial court has this power, but, as we said in that . . . opinion, the exercise of that power must be supported by a statement that contains the elements listed in [People v.]Williams [(1998) 17 Cal.4th 148]." (People v. Thornton (Aug. 23, 2000, E026335) [nonpub. opn.], p. 6.) What the trial court said during this, its fifth consideration of Thorntons motion to dismiss, was that this court would not permit it to grant the motion "for all of the reasons that [the trial court has] previously stated." (Italics added.) In this conclusion, the trial court is entirely correct. We cannot allow it to use reasons it has previously used, which we have already concluded are either factually insupportable or legally untenable, as a basis for granting Thorntons motion. As before, we do not doubt the trial courts discretion to dismiss strikes. Our job is to determine if the reasons given for the exercise of that discretion are factually and legally sound. (See People v. Strong (2001) 87 Cal.App.4th 328, 336.) Many of those previously relied upon by the trial court to grant Thorntons motions have not been. If, after five separate considerations of the matter, the trial court cannot find other reasons, which is what it appears to have been saying during its current denial of the motion, then that denial is entirely proper.
This leaves only Thorntons contention that his sentence is cruel and unusual because his two burglary strikes are not violent and are, as he puts it, "factually minimal." However, we previously concluded as to them, ". . . Thornton is a very lucky man in that the victims he chose . . . were non-resistant. . . . The one time a victim did resist, however, Thornton met that resistance with violence and was convicted of another robbery. We also point out that the gravamen of the offense of burglary is the danger it poses to the victims and to the perpetrators, due to the fact that it involves the invasion of the victims home. [Fn. omitted.] It is factually and legally a dangerous crime. Thornton did not know either of his [burglary] victims . . . ." (People v. Thornton , supra, E029091, p. 18.)
Thorntons assertions that his previously vacated sentence of 16 years is appropriate and his due process rights were violated by prior actions of this court are not properly before this court at this time. As to the latter, our only additional comment is that we are astonished that Thornton can fathom only some fault on the part of this court as the reason why this case is before us for the fifth time.
As Thornton recognizes, any assertion that the three strikes law violates the prohibition on cruel and unusual sentences is no longer viable. (See Lockyer v. Andrade (2003) 155 L. Ed. 2d 144, 538 U.S. ___ ; Ewing v. California (2003) 155 L. Ed. 2d 108, 538 U.S. ___ .)
Given all the factors previously discussed by this court in its prior opinions, we conclude that this is not one of those exquisitely rare cases in which the sentence shocks the conscience and offends fundamental notions of human dignity. (In re Lynch (1972) 8 Cal.3d 410, 424, 105 Cal. Rptr. 217, 503 P.2d 921; People v. Weddle (1991) 1 Cal.App.4th 1190, 1196.)
DISPOSITION
The judgment is affirmed.
We concur: HOLLENHORST, J., and RICHLI, J.