P. v. Abdul-Malik
Filed 3/11/14 P. v.
Abdul-Malik CA2/5
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
ZAKEE SHAKIR
ABDUL-MALIK,
Defendant and Appellant.
B248990
(Los
Angeles County Super. Ct.
No. BA378199)
APPEAL
from a judgment of the Superior Court of
Los Angeles County, Henry J. Hall, Judge.
Affirmed.
Alex
Coolman, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala
D. Harris, Attorney General, Dane R.
Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Kenneth C. Byrne, Supervising Deputy Attorney General, and
Seth P. McCutcheon, Deputy Attorney General, for Plaintiff and Respondent.
_____________________________
Defendant and appellant Zakee Shakir
Abdul-Malik was convicted by jury of three counts of perjury by declaration in
violation of Penal Code section 118,
subdivision (a).
name="_ftnref1" title="">[1] In a separate proceeding,
the trial court found defendant had suffered two prior convictions for rape in
violation of section 261, subdivision (a)(2), within the meaning of the three
strikes law. (§§ 1170.12, subds. (a)-(d),
667, subds. (b)-(i).)
Defendant
was sentenced to 25 years to life in count 1 pursuant to the three strikes
law. The trial court dismissed one prior
strike conviction for purposes of counts 2 and 3, imposing consecutive terms of
two years for both counts, for a total sentence of 29 years to life. Credit was given for 179 days in custody and
179 days of conduct credits, for a total of 358 days.
Defendant
timely appealed the judgment. On October 16, 2012, this court ordered the judgment modified to reflect 454 days of
presentence custody credits, consisting of 310 actual days and 144 days of
conduct credit. We also remanded the
case to the trial court for resentencing on counts 2 and 3 under the
determinate sentencing law.
The
trial court sentenced defendant to an indeterminate term of 25 years to life in
prison for count 1, consecutive terms of 4 years in count 2, and 2 years in
count 3, for a total of 31 years to life in state prison.
Defendant
again appealed. He contends the sentence
of 31 years to life is cruel and unusual punishment in violation of the Eighth
Amendment. We affirm the judgment.
FACTS
Defendant,
a convicted sex offender subject to registration under section 290, received
Section 8 housing assistance since 2003.
In his applications for Section 8 assistance in 2008, 2009, and 2010,
defendant falsely stated under penalty of
required to register as a sex offender.
Defendant received $34,305 in funding between 2008 and 2010 as a result
of his false statements.
Defendant
was previously convicted of misdemeanor assault with a deadly weapon against
his then girlfriend in 1972. In 1979, he
pleaded guilty to misdemeanor battery, after being charged with rape by force. In 1982, he was convicted of rape by force
and sentenced to eight years in prison.
In 1989, just after his discharge from parole in connection with the
1982 conviction, defendant was again convicted of rape by force and sentenced
to eight years in prison. In 1995, while
on parole, he was convicted of misdemeanor battery.
At
the resentencing hearing for the current offenses, defendant moved to strike
his priors and thereby shorten his sentence.
counts 2 and 3 but denied it as to count 1.
In doing so, the trial court discussed the issue of cruel and unusual
punishment.
“THE
COURT: The other right that has to be
balanced into all of this is the cruel and unusual punishment. As I indicated when I sentenced Mr. Abdul-Malik
last time, if I imposed three consecutive 75-year to life sentences, which
incidentally, the Court of Appeal said I would have been well within my right
to do, or three consecutive 25 to life sentences, giving him 75 years to life,
that really would have been the moral equivalent of an LWOP. And in a case where most defendants are
placed on probation and forced to pay restitution, that is disproportionate
punishment and would probably fall within the range of cruel and unusual punishment. Reyes [
Brown, a 2005 case from the 9th Circuit, 399 [F.3d] 964, in which the 9th
Circuit held that imposing a 25-year to life sentence on a [section] 118
violation was in fact cruel and unusual punishment as a matter of law.
“The
second factor that has to be examined in this is the interest of society as
represented by the People. And I think
that we are engaging in a little bit of revisionist history and a little bit of
sort of minimizing what this case was all about.
“When
Mr. Abdul-Malik was sentenced initially, his position outlined in letters and
statements and everything else that he had submitted was not that he was
concerned about the family and all the rest of that. But it seems to be something that has come up
in prison, but rather, that he felt that he wasn’t guilty of the underlying
rape charges, and he felt that he had paid his debt to society and therefore,
he was justified in not reporting that and reporting the fact that he was a sex
registrant on the Section 8 housing. The
fact that he has now come up with a different story doesn’t really impress me
very much, I have to say. I think that
his initial take on that was why he acted the way he did, and I’m going to act
on that.
“Additionally,
there has to be a balance between leaving the prison authorities with the
discretion to evaluate Mr. Abdul-Malik when he’s reached a period in his life
where the odds of him repeating any of his sexual offenses -- and the two rape
charges are not the only ones -- whether he’s gained enough insight into his
behavior by that point to justify a release when he is of an age that is
significantly older. And I’m going to
impose a sentence that ensures that he stays in until he is old enough that he
may be safely trusted out in the community, but allows the parole authorities
the flexibility they may desire to release him when he reached that point.
“Now,
I spent the last couple of weeks going through this file, the same as I did the
first time I sentenced him, and I’ve read every document that was filed in this
case. The documents contain fairly
substantial descriptions of Mr. Abdul-Malik’s prior strike offenses. These were extremely violent rapes that go
beyond the normal violence, if we can use that phrase, encountered in a
rape. In the second one, the victim
received substantial injury and suffered significant emotional injuries as
well. There is very little record of
what occurred in the first, because the records had been destroyed. But the brief discussion that was contained
in the probation report has no suggestions that it was any less violent that
the second. The rapes were fairly
remote. The first strike occurred on July 1, 1982. The second occurred on November 13, 1989; both of them more than 20 years old. In the overall scheme of ruling on
favor of striking them; however, the fact that the strikes occurred
approximately seven years apart is a factor that militates against him, because
Mr. Abdul Malik was in prison for most of that time. Both of these prior offenses were extremely
violent, as I indicated.
“Another
factor that the Court has to look at is whether these priors occurred in a
single period of aberrant behavior. They
didn’t. The nature of the victim and the
type of assault which occurred on August 26, 1979. The type of victim continued to the two
allegations which underlay the 2006 misdemeanor conviction which was
reversed. I’m not going to consider that
for any other reason, because the conviction was reversed. But it was reversed on a technical
issue. But I think that the types of
victim involved in that, or alleged victim involved, that is something that’s
relevant.
“I
think it’s also significant according to the registration records that in 2003,
[defendant] was accused of attempts to inveigle girls, again, who met the same
profile, into working with him for an escort service. What this tells me is that Mr. Abdul-Malik
shows absolutely, over the course of his life, a long period of time, has shown
no insight into his behavior as to what is best termed to be a sexual
predator. And I think the best evidence
that this hasn’t changed or at least it hadn’t changed up until the time of the
commission of this offense, and one of the facts that drives my feeling is --
of this matter is that Mr. Abdul Malik chose to use the illegally obtained
Section 8 housing voucher to move in right next to a child case center. . .
. And it’s this factor that causes me to
be utterly unwilling to strike the strikes as to Count 1. As far as I can tell, Mr. Abdul Malik is
still a sexual predator. I see nothing
to indicate the contrary. And again, the
fact that knowing his history, he would choose to lie about his sexual history
and then use that to move next to a child care center, to me is just
inconceivable.
“The
other factor that the court has to look at is whether the prior convictions
arose out of the same act. They did
not.â€
Defendant
interrupted the trial court at that point in the proceeding, explaining that he
had never beaten or raped the victims.
He stated that he had consensual sexual intercourse with both victims,
and that he “just didn’t know these girls well enough.†He asserted that the first woman was beaten
by her sister who then framed him, and in the second conviction, the district
attorney knew he had a prior conviction so he “made†the victim come to court
and testify against defendant. He denied
being a violent predator.
After
defendant’s lengthy statement, the trial court pronounced the sentence. Defense counsel did not object to the
sentence on the ground of cruel and unusual punishment.
DISCUSSION
Defendant’s
contention that his 31 years to life sentence is so grossly disproportionate to
his crimes that it constitutes cruel and unusual punishment in violation of the
Eighth Amendment is without merit.
Preliminarily,
we agree with the Attorney General that defendant forfeited the claim on appeal
by failing to raise it below. Defendant’s assertion that the issue was
preserved because the trial court considered whether the sentence rose to the
level of cruel and unusual punishment at the resentencing hearing is
unavailing. The law requires that
defendant specifically object to his sentence as a violation of the Eighth
Amendment, which defendant concedes he failed to do. (In re
Seaton (2004) 34 Cal.4th 193, 197-198 [“‘[T]he failure to object to errors
committed at trial relieves the reviewing court of the obligation to consider
those errors on appeal.’ [Citations.] This applies to claims based on statutory
violations, as well as claims based on violations of fundamental constitutional
rights. [Citations.]â€].)
To
avoid forfeiture, defendant alternately argues that his counsel provided
ineffective assistance by failing to object, which necessitates review on the
merits. (People v. Williams (1998) 61 Cal.App.4th 649, 657.) We conclude that, even if the issue had been
preserved for appeal, the trial court could constitutionally impose the 31-year
to life sentence in compliance with state law in accordance with section 667,
subdivision (e)(2)(A)(ii), such that there is not a reasonable probability defendant would
have obtained a more favorable result had his counsel objected. (People v. Cunningham (2001) 25 Cal.4th 926, 1003 [reversal on the
ground of ineffective assistance of counsel requires the defendant to establish
counsel’s performance did not meet the standard to be expected of a reasonably
competent attorney and there is a reasonable probability the defendant would
have obtained a more favorable result absent counsel’s shortcomings].)
The Eighth Amendment prohibits only those sentences that are grossly
disproportionate to the crime. (
whether a sentence is proportionate to the offense and the defendant’s
circumstances such that it does or does not constitute cruel and unusual
punishment: (1) the gravity of the offense and the harshness
of the penalty; (2) sentences imposed on
other criminals in the same jurisdiction; and (3) sentences imposed for the same crime in other
jurisdictions. (Id. at p. 22.) Here,
defendant’s sole contention is that the punishment is unconstitutional as
applied to him, so we consider only the first factor—the nature of the offense
and the offender.
We
find no merit in defendant’s argument that his current offenses are
comparatively trivial, like the triggering offenses in People v. Carmony (2005) 127 Cal.App.4th 1066 (Carmony II) and Gonzalez v.
Duncan (9th Cir. 2008) 551 F.3d 875 (Gonzalez). In Carmony
II, the defendant failed to update his registration as a sex offender
within five days of his birthday (former § 290, subd. (a)(1)(C)) but had
accurately registered the required information a month before. There was no change in the information in the
intervening period, and the defendant’s parole officer was aware there had been
no changes. The appellate court
classified the offense as a “passive†omission and not an act that either “evade[d]
or [was] intend[ed] to evade law enforcement officers.†(Carmony
II, supra, at p. 1078.) It held that the defendant’s 25 years to life
sentence was cruel and unusual punishment under the circumstances. (Id.
at p. 1089.)
In
Gonzalez, the defendant violated
former section 290, subdivision (a)(1)(D), another provision requiring
registration as a sex offender within five days of the defendant’s
birthday. The court of appeals described
the purpose of the law as “only tangentially related to the state’s interest in
ensuring that sex offenders are available for police surveillance,†and “merely
a ‘backup measure to ensure that authorities have current accurate information.’
[Citation.]†(Gonzalez,
supra, 551 F.3d at p. 884.) Gonzalez had been found not guilty of
violating the reporting requirements of section 290, subdivision (a)(1)(A),
which was promulgated for the purpose of “prevent[ing] ‘recidivism in sex
offenders’ by assuring they are ‘available for police surveillance.’ [Citation.]â€
(Gonzalez,
the court “adopt[ed] the jury’s implicit determination that Gonzalez was living
at his registered address throughout the relevant time period in this case.†(Ibid.) Considering the gravity of the offense and
the fact that Gonzalez had updated his information both nine months before and
three months after the relevant time period, the court was “unable to discern
any actual harm resulting from [the violation].†(Ibid.) It therefore held Gonzalez’s 28 years to life
sentence was cruel and unusual punishment.
(Id. at p. 891.)
Here,
defendant did not simply fail to act as the defendants in Carmony II and Gonzalez
did. He affirmatively lied about his
previous offenses to gain a government benefit.
Cognizable harm to the state occurred when defendant perjured himself to
obtain subsidized housing. Moreover, it
is clear that defendant acted purposefully, as he perjured himself on not one,
but three, separate occasions. At the resentencing hearing, defendant
minimized his past crimes and ignored his responsibility for them, displaying a
callous disregard for their seriousness.
In light of these circumstances, his decision not to disclose his sex
offender status when required by law “may properly be viewed as an indicator of
potentially significant future dangerousness.†(In re
Coley (2012) 55 Cal.4th 524, 562 (Coley).)
The
sentence imposed under the three strikes law is often dependent on the trial
court’s exercise of discretion in determining whether to strike any of the
serious or violent prior convictions, such that it is appropriate to rely on
the trial court’s findings and reasoning when evaluating a claim that the
punishment is cruel and unusual. (
In this case, the trial court considered the two violent sexual assaults
that resulted in defendant’s prior strike convictions, along with his other
crimes. Although the rapes are remote
from the current offenses, they occurred many years apart, illustrating that a
significant lapse of time is no indication that defendant has reformed. Defendant was also convicted of assault with
a deadly weapon and battery against women on two other occasions. As the trial court noted, evidence of
defendant’s current state of mind does not weigh in his favor. Defendant’s lengthy statements at the
resentencing hearing show that he does not acknowledge the gravity of his past
offenses or take responsibility for them.
His powers of introspection do not appear to have developed over time. Finally, defendant is a repeat offender whom
the Legislature may punish more severely than it punishes a first time
offender, and his recidivism is a relevant consideration that also weighs
against him. (Ewing, supra, 538 U.S. at
pp. 24-26, 29 [25 years to life sentence not cruel and unusual punishment where
triggering offense of felony grand theft of golf clubs was related to prior
convictions for theft, grand theft auto, burglary, trespassing, and robbery].)
Having
considered defendant’s nature and the nature of his offense, we conclude that
his 31 years to life sentence does not violate the constitutional prohibition
against cruel and unusual punishment.
We affirm the judgment.
KRIEGLER,
J.
We concur:
MOSK,
Acting P. J.
MINK,
J.
name="_ftn1" title=""> [1] All statutory references are
to the Penal Code unless otherwise indicated.
the trial court’s exercise of discretion in denying his motion to strike.
