Opinion
B160993.
11-3-2003
THE PEOPLE, Plaintiff and Respondent, v. LEVERNE ENOCH WALTMAN, Defendant and Appellant.
Daniel G. Koryn, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, and Kyle S. Brodie, Deputy Attorney General, for Plaintiff and Respondent.
Appellant Leverne Enoch Waltman challenges his kidnapping, lewd act, forcible lewd act, and sexual assault convictions on the grounds the trial court erred by denying his motions to represent himself, by admitting evidence of his prior sexual offenses against a minor, and by instructing with CALJIC No. 2.50.01. He also contends prosecution under Penal Code section 288 was preempted by charges under Penal Code section 269 and that his sentence is disproportionately long.
We conclude the trial court properly denied appellants motions to represent himself, which were made on the day trial was to commence and the following day, when trial actually commenced. The trial court did not abuse its discretion in admitting evidence of appellants prior sexual offenses. CALJIC No. 2.50.01 is a proper instruction and does not reduce the prosecutions burden of proof. Because Penal Code section 288 does not provide for a greater sentence than Penal Code section 269, prosecution under section 288 was not preempted. Finally, appellants proportionality claims have no merit in light of the gravity of the crimes in the present case and his extensive recidivism.
BACKGROUND AND PROCEDURAL HISTORY
Appellant asked the 12-year-old daughter of his friend to go shopping with him. She agreed and they went shopping. He then drove her to a secluded mountain road, where he parked and told her they were going to play a game of show and tell. He asked her if she had pubic hair and demanded that she remove her pants. She complied because he threatened to "get physical" if she did not. He reclined her seat in the car and told her to spread her legs. He licked her genitals, placed cream on his finger, and inserted it in her vagina. He then put on a condom and tried to place his penis inside her. He succeeded partially, but she was squirming and asking him to stop. He backed off, then tried again, unsuccessfully. He complained that she was not cooperating and got off her. He allowed her to dress, but threatened to drive the car off a cliff. She begged him not to do so, and he drove her back to her cousins house, where he had picked her up. He told her not to tell anyone what happened, but she immediately told her cousin what he had done.
A jury convicted appellant of kidnapping for the purpose of molesting a child, three counts of committing a lewd act on a child under the age of fourteen, three counts of committing a forcible lewd act on a child under the age of fourteen, and three counts of aggravated sexual assault on a child under the age of fourteen. With respect to the three counts of committing a forcible lewd act on a child under the age of fourteen, the jury also found that appellant kidnapped the victim, and that this substantially increased the risk of harm to her. In a bifurcated trial on the prior conviction allegations, the court found appellant had a prior serious felony conviction within the meaning of the Three Strikes law and Penal Code section 667, subdivision (a)(1). The court denied appellants motion to vacate the prior conviction finding and sentenced him to 117 years to life in prison.
DISCUSSION
1. The trial court did not abuse its discretion by denying appellants Faretta motions.
Appellant contends the court violated his constitutional rights by denying two motions for self-representation made just as trial was about to begin.
An accuseds right to counsel encompasses the right of self-representation. (Faretta v. California (1975) 422 U.S. 806, 821.) In order to invoke the constitutional right of self-representation, a defendant must unequivocally assert the right within a reasonable time before trial. (People v. Windham (1977) 19 Cal.3d 121, 127-128.) A motion made after that time is left to the trial courts discretion. (People v. Mayfield (1997) 14 Cal.4th 668, 809.) In ruling upon the motion, the trial court should consider the quality of counsels representation, the defendants prior efforts to substitute counsel, the reasons for the request, the length and stage of the proceedings, and the disruption or delay reasonably likely to result from granting the motion. (People v. Mayfield, supra, 14 Cal.4th at p. 810, quoting People v. Windham, supra, 19 Cal.3d at p. 128.) If the trial court abuses its discretion, the error is reviewed under the harmless error test of People v. Watson (1956 46 Cal.2d 818, 836.) (People v. Rogers (1995) 37 Cal.App.4th 1053, 1058.)
a. Appellants first Faretta motion
On July 15, 2002, appellants case was assigned to Judge Mark Grant Nelson for trial. Appellant immediately informed the court he wanted "a Marsden hearing." Defense counsel advised the court that appellant actually desired to represent himself, not to secure the appointment of new counsel. The court asked appellant if he would be prepared to proceed to trial that day. Appellant stated he would not. He clarified he first wanted a Marsden hearing, and afterward a Faretta hearing. Accordingly, the court excused the prosecutor and conducted a Marsden hearing.
Unless otherwise noted, all dates refer to 2002.
In People v. Marsden (1970) 2 Cal.3d 118, the court held when a defendant claims his appointed counsel is inadequately representing him and asks the court to appoint another attorney, the court must allow the defendant to explain the basis of his request and state specific instances of allegedly poor representation. (Id. at p. 124.)
Appellant complained his attorney had previously instructed him to "go incompetent," had not investigated the case or interviewed witnesses whose names appellant provided, had not made any motions, had not followed appellants instructions to make a formal discovery motion and provide appellant with the information produced as a result of the discovery motion, and had not "reviewed the crime scene, if there is one" or arranged for independent testing of physical evidence. Appellant said he could not trust his attorney and therefore wanted to represent himself. He requested a 120-day continuance to familiarize himself with the case, prepare and file motions, arrange to have an investigator interview witnesses, and prepare for trial. After defense counsel responded to each of appellants complaints, the court found that counsel had adequately prepared for trial and found that no breakdown in the attorney-client relationship had occurred. Accordingly, the Marsden motion was denied.
The trial court then discussed self-representation with appellant, who re-affirmed his lack of readiness to proceed to trial that day. The court denied the motion for self-representation, stating that appellants request for a 120-day continuance was unacceptable, noting he could have made the motion at an earlier date. The court told appellant he could represent himself only if he was prepared to start trial that day. Appellant said, "Theres no way I can do that."
Defense counsel requested that the trial court postpone jury selection until the next morning because appellant "very strongly does not want to commence jury selection today." The court declined the request. Appellant stated he was "going to go berserk in here" to force the court to remove him from the courtroom. He threatened to "flip tables" and "talk shit to the people that are in the jury box. Im going to make them feel threatened." He repeatedly accused the court of being prejudiced against him and threatened to "be very belligerent." He vowed he would not come into the courtroom the next day and said, "We are going to fight before the jury gets here. Me and the police are going to fight, believe that." The court adjourned for the day without beginning jury selection.
At start of proceedings the next morning, the trial court elaborated upon its reasons for denying appellants Faretta motion, stating it found defense counsels representation competent, counsel had preformed the work reasonably necessary to prepare for trial, appellants request for a 120-day continuance was unacceptable, the case was nearly a year old, trial was ready to commence, and granting the motion would result in considerable delay. The court also observed there was "certainly the prospect of disruption based upon what occurred in court yesterday." The court commented it considered the lack of any prior requests for substitution of counsel, but concluded, "on balance, the weight is greatly in favor of ... proceeding with counsel."
Because appellants motion was made just as the trial was about to commence, rather than a reasonable time before trial, the ruling was left to the trial courts discretion. The court conducted an extensive inquiry and carefully considered the Windham factors. During the Marsden portion of the hearing, the court examined the nature and merits of appellants complaints about defense counsel and inquired about counsels trial preparation. The court stated that it found counsels representation and trial preparation adequate. It implicitly found groundless appellants complaints against counsel, which constituted the basis for his Marsden and Faretta motions. The court expressly considered the length and stage of the proceedings, and the delay that would ensue if appellants request for a 120-day continuance were granted. The court later stated it considered the absence of prior requests to substitute counsel, but found that other factors outweighed it. The court also considered whether appellant could have made his motion for self-representation at an earlier time.
A review of the record establishes that although many months were spent awaiting the resolution of the issue of appellants competence, he was in court on May 20, when he was found competent to stand trial, and made three additional court appearances between May 20 and the July 15 trial date. He could have made his motion for self-representation at any of the three appearances, but failed to do so until the case was transferred to a courtroom for the purpose of beginning trial. We find the court considered all relevant factors—and more—and did not abuse its discretion by denying appellants first Faretta motion.
b. Appellants second Faretta motion
On July 16, after the trial court elaborated upon its reasons for denying appellants first Faretta motion, appellant informed the court he still wanted to represent himself and was seeking a continuance of only three or four days. In response to the courts statement that "we are ready to go today is the problem," appellant said if he had "to be ready today, then, Im ready today." The court asked whether appellant was saying he was ready to proceed, and he replied, "Well, as of right now, I guess I have to be." The court inquired whether appellant understood what jury instructions were, and he said he did not. The court asked appellant whether he realized the serious risks inherent in self-representation, that he would be held to the same standards as an attorney, he would face an experienced prosecutor who would not "cut [him] any slack," and he would not receive any special privileges of any kind from the court. Appellant said he understood all of these points. Appellant added he was asking the court "for at least two days to prepare for this trial, access to the law library to file a few motions, whatever it takes."
Judge Nelson contacted the master calendar department to determine whether it wanted to hear appellants motion for continuance, and reported the calendar court would not grant a continuance were it to hear the motion. Judge Nelson told appellant the case was ready to proceed to trial and defense counsel was ready. Appellant said, "Okay. Im ready." The court denied appellants motion for self-representation, citing appellants "lack of preparedness," his disruptive courtroom conduct the previous day, and his statement that morning that he intended to speak his mind during trial.
A trial court has discretion to deny a Faretta motion when appellants prior conduct provides reason to believe that he "is and will remain so disruptive, obstreperous, disobedient, disrespectful or obstructionist in his or her actions or words as to preclude the exercise of the right to self-representation." (People v. Welch (1999) 20 Cal.4th 701, 734-735.) A reviewing court must bear in mind that the record may not fully reveal the extent of an appellants disruptive behavior, and the trial court is in a superior position to assess the appellants demeanor. (Id. at p. 735.)
In denying appellants second Faretta motion, the trial court properly considered appellants disrespectful, obstreperous behavior and express threats to disrupt the proceedings. Appellant did not apologize for his behavior or renounce his threats, although his attorney apologized on his behalf. Instead, appellant announced his intent to "say whats on my mind." In addition, the courts decision was necessarily based on the grounds stated with respect to the first motion. Although appellant stated he was ready to proceed with the trial, his assertion was belied by his request for a two- to four-day continuance to prepare motions and prepare for trial. The trial court could reasonably conclude from these requests that appellants claim he was ready and willing to proceed immediately to trial was false, and delay would inevitably ensue as appellant struggled to select a jury, make an opening statement, and question witnesses. From appellants statements and conduct, the court also could reasonably conclude that at some point during the trial appellant would disrupt proceedings. If he were representing himself, the court could not simply remove him from the courtroom to prevent further disruption. For these reasons, the court did not abuse its discretion in denying appellants second Faretta motion.
2. The trial court did not abuse its discretion by admitting evidence of appellants prior sexual offense against a minor.
Before trial, the prosecutor moved to introduce evidence of two prior incidents of appellants sexual misconduct with a minor, one of which resulted in misdemeanor child molestation convictions under Penal Code section 647.6. Over appellants opposition, the evidence was found admissible under Evidence Code sections 1108 and 352.
Following the trial courts ruling, Adrienne R. testified that in 1993, when she was 15, appellant was her mothers boyfriend. Two incidents involving sexual misconduct occurred when her mother was at work. In one incident, appellant trapped her inside her bedroom, repeatedly touched her, and told her to take off her clothing. He tried to place his hand inside her pants. She broke loose and ran away. In the other incident, he trapped her in the bathroom and told her to take off her clothing. She asked him to stop, but he continued to order her to remove her clothing, saying he would take her clothes off for her if she did not comply. She finally removed her clothing. Appellant hugged her, told her "it wasnt that bad," and instructed her to put her clothes back on. Before and after these incidents, appellant asked her if she had ever had sex "and stuff like that." When asked on cross-examination whether she had any problems with appellant since the 1993 incidents, Adrienne testified that when she was eighteen, and while her mother was away in Alabama, appellant turned off the lights and tried to lie down in bed with her. Adrienne indicated she was aware that appellant pled guilty to "a lesser charge" based upon his conduct toward her.
Appellant contends the trial court should have excluded the evidence of his misconduct with Adrienne under Evidence Code section 352. He argues it had no probative value, and was cumulative, highly inflammatory, and probably confused the jury. He also argues admission of the evidence violated due process.
Generally, we review any ruling on the admissibility of evidence for abuse of discretion. (See, e.g., People v. Alvarez (1996) 14 Cal.4th 155, 201.) This standard also applies to the trial courts determination under Evidence Code section 352 of whether the prejudicial effect of the evidence substantially outweighs its probative value. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.)
Evidence Code section 1101 prohibits the admission of evidence of other offenses or misconduct to prove criminal propensity, but permits admission of evidence to prove matters such as motive, intent, identity, or a common design or plan. (Evid. Code, § 1101, subd. (a), (b).) Evidence Code section 1108 establishes an exception to section 1101, authorizing the admission of evidence of the defendants commission of another sexual offense or offenses "[i]n a criminal action in which the defendant is accused of a sexual offense," provided the evidence is admissible under Evidence Code section 352.
Given the enactment of Evidence Code section 1108, a trial court may no longer deem evidence of prior sexual offenses unduly prejudicial per se. (People v. Falsetta (1999) 21 Cal.4th 903, 916-917.) Instead, the court must engage in a careful weighing process under Evidence Code section 352. In doing so, it must consider factors such as the nature, relevance, and remoteness of the prior offense; the degree of certainty of its commission; the likelihood of confusing, misleading, or distracting the jurors from their main inquiry; the similarity of the prior offense to the charged offense; the likely prejudicial impact on the jurors; the burden on the defendant in defending against the uncharged offense; and the availability of less prejudicial alternatives to outright admission of the prior offense, such as admitting some but not all of the prior sex offenses, or excluding irrelevant though inflammatory details surrounding the offenses. (Id. at p. 917.)
Adriennes testimony was relevant circumstantial evidence that appellant committed the offenses charged in this case. (People v. Falsetta , supra, 21 Cal.4th at p. 920.) Despite minor differences, such as the absence of kidnapping in the prior incidents, the present case and the incidents involving Adrienne are similar. Adrienne and the victim in this case were 15 and 12, respectively, at the time appellant attacked them. They were therefore very close to the same age. Appellant knew each victim through his relationship with her mother. Although he appeared to have had a closer relationship with Adrienne than with the victim in this case, in each case he used a position of familiarity with the victim and her family to get close enough to the victim to commit the crimes. With Adrienne he waited until her mother was away and then trapped her in a confined space. In this case, he lured the victim away from her family, drove her to an isolated location, and committed his crimes in the cramped confines of a car. In each case, he asked the victim about her sexual development and demanded she remove her clothing and, after completing his misconduct, instructed her to dress. Although appellants crimes against the victim in this case were more serious than his crimes against Adrienne, in each case he sought sexual contact with a young woman.
Prior crimes or misconduct need not share an unusually high degree of similarity for admissibility under Evidence Code section 1108. The Legislature deliberately chose not to add a similarity requirement to section 1108. Doing so would tend to make section 1108 as restrictive as section 1101, thereby defeating the purpose of its enactment and preventing the admission and consideration of evidence of other sexual offenses in circumstances where it is rationally probative. (People v. Soto (1998) 64 Cal.App.4th 966, 984.) Appellants sexual offenses against Adrienne showed a propensity for engaging in sexual contact with young women who were daughters of his friends. It was therefore sufficiently similar and probative of his propensity to engage in such crimes to be admissible under Evidence Code section 1108.
Appellants crimes against Adrienne were not, as appellant argues, too remote in time. Adrienne testified the incidents occurred in 1993, whereas appellants sexual assault on the victim in this case occurred in 2001. Therefore, the crimes occurred about eight years apart. This time span is certainly not too remote for admission under Evidence Code section 1108. As far as the record reveals, no doubt exists that appellant committed the offenses against Adrienne. He pled guilty to misdemeanor charges based upon the incidents to which she testified and did not dispute Adriennes testimony at trial. The record also fails to reveal any reason appellant would find it unduly burdensome to defend against the offenses against Adrienne. The only plausible difficulty he faced in defending against the uncharged offenses was the lack of any viable defense. Additionally, Adriennes testimony was extremely brief and it was clear she was describing events that occurred in 1993. Her testimony therefore did not unduly consume time or create any likelihood of confusing, misleading or distracting the jurors from their main inquiry.
With respect to the likely prejudicial impact on the jurors, the enactment of section 1108 reflects a policy decision by the Legislature that, notwithstanding the prejudice that may result from the admission of prior sex crimes, the probative value of that evidence substantially outweighs the risk of undue prejudice. (People v. Falsetta, supra, 21 Cal.4th at pp. 916-917.) Moreover, the type of prejudice Evidence Code section 352 seeks to avoid is not the damage to a defense that naturally results from relevant evidence, but the tendency to prejudge a person or cause on the basis of extraneous factors. (People v. Zapien (1993) 4 Cal.4th 929, 958.) The evidence of the prior offenses against Adrienne was no more inflammatory than the evidence of appellants conduct toward the victim in this case. Indeed, his conduct in this case was far more serious than his conduct toward Adrienne, because it progressed to a complete sexual assault on a slightly younger girl. Because the jury learned that appellant pled guilty to a crime in relation to his offenses against Adrienne, there is little likelihood they concluded he had not been punished for those incidents and sought to convict him in this case to remedy a past situation. Although it is possible the jury would conclude appellant had been inadequately punished for his offenses against Adrienne, this was simply one factor to consider in the entire balancing process under section 352. Based upon the totality of the circumstances, we conclude the trial court did not abuse its discretion in determining that the probative value of appellants prior offenses outweighed any potential prejudicial impact, consumption of time, or risk of confusing the jury. We further conclude the evidence did not violate due process. (People v. Falsetta, supra, 21 Cal.4th 903, 919-920.)
3. The trial court properly instructed with CALJIC No. 2.50.01.
Because it admitted the evidence of appellants prior sexual offenses against Adrienne, the trial court instructed the jury with CALJIC No. 2.50.01, which provided as follows:
"Evidence has been introduced for the purpose of showing that the defendant engaged in a sexual offense on one or more occasions other than that charged in the case."
`Sexual offense means a crime under the laws of a state or of the United States that involves any of the following: Any conduct made criminal by Penal Code Section 647.6. The elements of this crime are set forth elsewhere in these instructions.
"If you find that the defendant committed a prior sexual offense, you may, but are not required to, infer that the defendant had a disposition to commit sexual offenses. If you find that the defendant had this disposition, you may, but are not required to, infer that he was likely to commit and did commit the crime or crimes of which he is accused.
"However, if you find by a preponderance of the evidence that the defendant committed prior sexual offenses, that is not sufficient by itself to prove beyond a reasonable doubt that he committed the charged crimes. The weight and significance of the evidence, in any, are for you to decide.
"You must not consider this evidence for any other purpose."
Appellant contends this instruction violated due process and his constitutional right to a jury trial because it permitted the jury to convict him of the current charges solely on the basis of proof by a preponderance of the evidence that he committed prior sexual offenses. Therefore, appellant argues, the prosecution was relieved from proving the elements of the current charges beyond a reasonable doubt.
In People v. Reliford (2003) 29 Cal.4th 1007 (Reliford), the California Supreme Court rejected the same contentions with respect to the 1999 version of CALJIC No. 2.50.01. The court held that, in conjunction with instructions to consider all of the instructions as a whole, on the elements of each charged offense and the necessity of proof of each element, on the requirement of a union or joint operation of act and conduct and the requisite intent, and on the prosecutions burden of proof beyond a reasonable doubt, jurors could not read CALJIC No. 2.50.01 to authorize a conviction of any charged offense without proof of each element of the offense beyond a reasonable doubt. (Id. at pp. 1013-1016.)
The 1999 version of CALJIC No. 2.50.01 considered in Reliford differed from the 2001 version of the instruction given in this case only in the use of plurals and the courts selection of the definition of "sexual offense" from among the various alternatives provided in CALJIC No. 2.50.01. Therefore, no material difference exists between the instruction approved inReliford and that given in appellants trial. As in Reliford, the jury was instructed it must consider the instructions as a whole and each in light of all the others (CALJIC No. 1.01), the crimes charged in counts eight through ten required a union or joint operation of act or conduct and general criminal intent (CALJIC No. 3.30), the crimes charged in counts one through seven required a union or joint operation of act or conduct and a particular specific intent (CALJIC No. 3.31), and the prosecution had the burden of proving appellant guilty beyond a reasonable doubt. (CALJIC Nos. 2.61 and 2.90) In addition, the court instructed the jury on the elements of each of the charges, and each of these instructions informed the jury that in order to prove that crime, each of the specified elements must be proved. (CALJIC Nos. 9.51, 10.41, 10.42, 10.55, 10.00, 10.30, 10.10.) Accordingly, as in Reliford, there was no reasonable possibility jurors read CALJIC No. 2.50.01 as authorizing a conviction of any charged offense without proof of each element of that offense beyond a reasonable doubt.
The instruction in Reliford referred, in the second to last paragraph, to "the crime of which he is accused," whereas the instruction here used "the crime or crimes of which he is accused." In the next to last paragraph, the instruction in Reliford referred to "a prior sexual offense," whereas the instruction given here used the phrase "prior sexual offenses."
4. Prosecution under Penal Code section 288 was not preempted by the Penal Code section 269 charges.
Appellant contends he was improperly prosecuted under Penal Code section 288, subdivisions (a) and (b), in counts two through seven because the charges were preempted by the charges under Penal Code section 269, subdivision (a), in counts eight through ten.
"The preemption doctrine provides that a prosecution under a general criminal statute with a greater punishment is prohibited if the Legislature enacted a specific statute covering the same conduct and intended that the specific statute would apply exclusively to the charged conduct." (People v. Jones (2003) 108 Cal.App.4th 455, 463.) Two alternative tests are available to determine whether the specific statute preempts prosecution under the general statute: " (1) `each element of the general statute corresponds to an element on the face of the [specific] statute[,] or (2) `it appears from the statutory context that a violation of the [specific] statute will necessarily or commonly result in a violation of the general statute." (Ibid , citation.)
The doctrine is inapplicable because the "general" statute, Penal code section 288, subdivisions (a) and (b), does not carry "a greater punishment" than the "specific statute covering the same conduct," Penal Code section 269. (People v. Jones, supra, 108 Cal.App.4th at p. 463.) Section 288, subdivisions (a) and (b), provides for a sentence of three, six or eight years, while section 269 provides for a sentence of 15 years to life. Accordingly, appellants preemption claim fails because the section that he asserts is the general, preempted statute, does not provide for the greater punishment.
5. Appellants convictions for violating Penal code section 288, subdivision (a), are lesser included offenses of his convictions of Penal Code section 288, subdivision (b).
Respondent independently notes that the convictions of violating Penal Code section 288, subdivision (a), in counts two through four must be reversed because they are lesser included offenses of the convictions of violating Penal Code section 288, subdivision (b), in counts five through seven. Counts two, three and four were each based upon the same acts as count five, six and seven, respectively. The difference was that the convictions under Penal Code section 288, subdivision (b), required the use of force, while those under section 288, subdivision (a), did not. In all other respects, the elements are identical. Accordingly, counts two through four were lesser offenses included within counts five through seven. (People v. Sanchez (2001) 24 Cal.4th 983, 988.) Because appellant may not be convicted of both a greater offense and a necessarily included offense based upon the same set of facts, the convictions in counts two through four must be reversed. (People v. Pearson (1986) 42 Cal.3d 351, 355.)
6. Appellants proportionality claims have no merit.
Appellants sentence of 117 years to life was a second strike term calculated as follows: for count 1, kidnapping for the purpose of molesting—27 years, consisting of the upper term of 11 years, doubled as a second strike term, plus 5 years under Penal Code section 667, subdivision (a)(1); and for each of counts 8 through 10, aggravated sexual assault on a child under 14—30 years to life, calculated by doubling the only prescribed term of 15 years to life. The trial court stayed the sentence on counts two through seven.
Appellant contends that the length of his sentence is grossly disproportionate to his crimes and violates the state and federal constitutions. He argues he would have been better off killing the victim, because she would have been unable to testify to the multiple acts and he would have received a sentence of just 25 years to life.
We may not intrude upon the Legislatures power to define crimes and prescribe the punishments therefor unless a statutory penalty is so disproportionate to the crime as to shock the conscience and offend fundamental notions of human dignity. (People v. Dillon (1983) 34 Cal.3d 441, 478; In re Lynch (1972) 8 Cal.3d 410, 424.) Appellant must overcome a considerable burden in convincing us that his sentence is disproportionate. (People v. Weddle (1991) 1 Cal.App.4th 1190, 1196-1197.)
In determining whether appellants sentence violates the California Constitution, we consider both the nature of the offense in the abstract and the facts of the crime in the particular case, including its motive, the way it was committed, the extent of the defendants involvement, and the consequences. (People v. Dillon 34 Cal.3d at p. 479) We also consider whether the punishment is "grossly disproportionate to the defendants individual culpability as shown by such factors as age, prior criminality, personal characteristics, and state of mind." (Ibid.) We may, but need not, compare the challenged penalty with punishments for more serious offenses in California and with punishments prescribed for the same offense in other jurisdictions. (People v. Dillon 34 Cal.3d at p. 487, fn. 38; People v. Weddle, supra, 1 Cal.App.4th at p. 1198, fn. 8.)
The crimes committed in this case were extremely serious, both in the abstract and as perpetrated. Appellant drove a 12-year-old girl to a wilderness area and raped her, orally copulated her by force, and placed his finger in her vagina. He inflicted injuries that were quite obvious to the medical personnel who examined the victim several hours later. Appellants contention that he would have been better off killing the victim in this case overlooks the fact that the prosecution, in such a murder case, could have, and no doubt would have, charged at least the special circumstance of rape, which could have been ascertained and proved without the victims testimony. Neither of the two possible penalties for a special circumstance murder—death or life in prison without parole—would be more favorable to appellant than his 117-years-to-life term.
At the time of the current offenses, appellant was 31 years old. As far as the record reveals, he began his criminal career in 1988, at age 18, when he suffered his first conviction of third degree burglary in Alabama. A year later, he was again convicted of third degree burglary in Alabama and was sentenced to three years in prison. In 1993, he was convicted of grand theft and sentenced to 180 days in jail and 3 years of probation. While on probation, he committed the crimes to which Adrienne testified at trial and, as a result, was convicted of two counts of annoying or molesting a child. Six months later, he was convicted of grand theft of an access card with intent to defraud and sentenced to 16 months in prison. In 1995, he was twice convicted of driving with a suspended license and was returned to prison for violating his parole. Soon after his re-release on parole, he was convicted of inflicting corporal injury on his spouse, and was returned to prison for another parole violation. In February 1997, he again violated his parole. In October 1998, he was convicted of first-degree burglary and again inflicting corporal injury on his spouse. He was sentenced to two years in prison. He was on parole from that term at the time of the current offenses and had been returned to prison twice for violations of that term of parole.
Appellants persistent criminal behavior clearly demonstrates that lesser punishments have been ineffective in deterring him from committing crimes. Indeed, the seriousness of his crimes has escalated from burglary to child molestation to spousal abuse to kidnapping, rape, and aggravated sexual assault on a young girl. The purpose of the Three Strikes law is to protect society by isolating people, such as appellant, who repeatedly demonstrate a disposition toward criminal behavior. Similarly, the 15-year-to-life terms provided by Penal Code section 269 are designed to protect children from persons, such as appellant, who commit certain types of extremely aggravated sexual assaults on children who are under the age of 14 and who are 10 or more years younger than the defendant. Because appellants sentence of 117 years to life penalizes both his extremely serious crimes of kidnapping and aggravated sexual assault on a young girl and his persistent serious criminal conduct, it does not shock the conscience or offend fundamental notions of human dignity. Appellants sentence therefore does not violate the California Constitution.
The analysis of appellants Eighth Amendment claim is controlled by Ewing v. California (2003) 123 S.Ct. 1179 (Ewing). The United States Supreme Court held the Eighth Amendment did not prohibit a third strike sentence of 25 years to life for a defendant who shoplifted three golf clubs and had previously committed three first degree burglaries and one first degree robbery. A majority of the Court concluded that in noncapital cases, the Eighth Amendment either contains only a narrow proportionality principle (Chief Justice Rehnquist and Justices OConnor and Kennedy) or no proportionality principle at all (Justices Scalia and Thomas). (Id. at pp. 1185, 1190-1191.) Under the narrow proportionality principle recognized by the plurality, the Eighth Amendment does not require strict proportionality between the offense and the resulting sentence and does not mandate comparative analysis within or between jurisdictions. (Id. at pp. 1186-1187.) Rather, it forbids only extreme sentences that are grossly disproportionate to the crime. (Id. at p. 1187.) In weighing the gravity of the appellants offenses, both his criminal history and his current felony must be considered. (Id . at pp. 1189-1190.)
The Ewing plurality noted that, outside the capital case context, successful challenges to the proportionality of a particular sentence are exceedingly rare. (Ewing, supra, 123 S.Ct. at p. 1185.) Without comparing Ewings sentence with the punishment for other crimes in California or with the punishment for the same crime in other states, the Court found the case before it was not one of the rare cases in which a proportionality challenge could succeed. (Id. at pp. 1189-1190.) It found the third strike sentence "justified by the States public-safety interest in incapacitating and deterring recidivist felons, and amply supported by his own long, serious criminal record." (Id. at p. 1190.)
Admittedly, appellants sentence is severe. However, when viewed in light of the gravity of his current offenses, his lengthy criminal history, the sentence of 117 years to life is not an extreme or grossly disproportionate sentence. Appellants sentence therefore does not violate the Eighth Amendment.
DISPOSITION
The convictions in counts two through four are reversed; sentence imposed and stayed pursuant to Penal Code section 654 as to each of these counts is vacated. In all other respects, the judgment is affirmed. The trial court is directed to issue an amended abstract of judgment.
We concur: COOPER, P.J., FLIER, J.