P. v. Modest
Filed 3/2/12 P. v. Modest CA1/5
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opinion has not been certified for publication or ordered published for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
FIRST
APPELLATE DISTRICT
DIVISION
FIVE
and Respondent,
and Appellant.
A130603
(
Super. Ct. No.
05-100594-1)
A jury
convicted appellant Scott Ryan Modest of seven felonies, including
§ 289, subd. (a)(1)(A))
name="_ftnref1" title="">[1] and forcible rape (§ 261, subd. (a)(2). The jury also found true the allegation that
appellant had sexually assaulted more than one victim (§ 667.61). The court sentenced appellant to 15 years to
life on each count for a total state
prison term of 105 years to life.
On appeal,
appellant contends the sentence constitutes cruel
and unusual punishment under the state and federal Constitutions. We disagree and affirm.
FACTUAL AND
PROCEDURAL BACKGROUND
In April
2010, appellant and a friend, Bernard Williams, forcibly raped, digitally
penetrated, and orally copulated Williams’s ex-girlfriend, Jane Doe I, after
forcibly entering her bedroom at a homeless shelter in Richmond. A few days later, appellant forcibly raped,
orally copulated, and digitally penetrated a different friend’s pregnant
girlfriend, Jane Doe II.
A jury
convicted appellant of forcible rape while acting in concert (§ 264.1),
two counts of forcible sexual penetration (§ 289, subd. (a)(1)(A)), two
counts of forcible rape (§ 261, subd. (a)(2)), forcible oral copulation
(§ 288a, subd. (c)(2)), and forcible oral copulation in concert
(§ 288a, subd. (d)(1)). The jury
also found true the allegation that appellant committed the offenses against
more than one victim (§ 667.61, subds. (b), (e).) The court sentenced appellant to 15 years to
life on each count, for a total term of 105 years to life in
DISCUSSION
Appellant
contends the aggregate sentence of 105 years to life constitutes cruel and
unusual punishment under the state and federal Constitutions because: (1) he is
unlikely to complete the sentence during his lifetime; (2) he had a “limited”
criminal record; and (3) there was evidence he “might be impaired by mental
illness.”
A sentence may violate the
California Constitution if “it is so disproportionate to the crime for which it
is inflicted that it shocks the conscience and offends
Lynch (1972) 8 Cal.3d 410, 424, fn. omitted (Lynch), superseded by statute on other grounds as stated in
248, 256.) To determine whether a
sentence is so disproportionate to the crime that it violates the California
Constitution, we consider “(1) the nature of the offense and the offender, with
particular regard to the degree of danger which both present to society; (2) a
comparison of the challenged penalty with the punishment prescribed in the same
jurisdiction for other more serious offenses; (3) a comparison of the
challenged penalty with punishment prescribed for the same offense in other
jurisdictions.” (People v. Thompson (1994) 24 Cal.App.4th 299, 304, citing
425-427.) Appellant does not compare his
sentence to more serious offenses in California or to punishment imposed for
the same offenses in other jurisdictions.
We take this “as a concession that his sentence withstands a
constitutional challenge on either basis.”
(People v. Retanan (2007) 154
Cal.App.4th 1219, 1231.)
Appellant
concedes his crimes “were reprehensible” but claims his sentence is cruel and
unusual because he “is unlikely to complete even half of the determinate
portion of his sentence.” To support
this argument, appellant relies on Justice Stanley Mosk’s concurring opinion in
People v. Deloza (1998) 18 Cal.4th
585, where he concluded “[a] sentence of 111 years in prison is impossible for
a human being to serve, and therefore violates both the cruel and unusual
punishments clause of the Eighth Amendment to the United States Constitution
and the cruel or unusual punishment clause of article I, section 17 of the
California Constitution.” (
at pp. 600-601.) Appellant also
relies on Justice Mosks’s dissenting opinion in People v. Hicks (1993) 6 Cal.4th 784, where he opined “many
criminal sentences have crossed the bounds of reason in this state. A sentence like the one imposed here, that
cannot possibly be completed in the defendant’s lifetime, makes a mockery of
the law and amounts to cruel or unusual punishment” under the California
Constitution. (Id. at p. 797.)
Justice
Mosk’s opinions in Deloza and
reasons. First, the constitutionality of
the defendants’ sentences in those two cases was not an issue in either appeal
and, as a result, Justice Mosk’s comments are dicta. “‘Only statements necessary to the decision
are binding precedents. . . .’ [Citation.]
‘The doctrine of precedent, or stare decisis, extends only to the ratio
decidendi of a decision, not to supplementary or explanatory comments which
might be included in an opinion.’” (
Cal.App.4th 255, 272.) For example, in
concurring opinion, “[a] question arises, which our remand for resentencing
does not require us to answer: Is a sentence of 111 years in prison
constitutional” (Deloza, supra, 18 Cal.4th at p. 600.) And in Hicks,
Justice Mosk observed, “[d]efendant has not challenged his 80-year sentence for
the offenses of which he stands convicted, and our order limits the issue
presented in this case, so I will offer no more at this time on the
constitutional problem presented by this sentence.” (Hicks,
supra, 6 Cal.4th at p. 797.) Second
— and irrespective of whether Justice Mosks’s comments are dicta — neither
Justice Mosk’s concurring opinion in Deloza
nor his dissenting opinion in Hicks
has any precedential value. (
1373, 1382-1383.)
Moreover,
several courts have considered and rejected the same argument appellant makes
here — that a sentence is cruel and unusual if it is so long it cannot be
completed in the defendant’s lifetime. (
1080, 1089-1090; Retanan, supra, 154
Cal.App.4th at pp. 1230-1231; Byrd,
1382-1383.) As the Byrd court observed, “In our view, it is immaterial that defendant
cannot serve his sentence during his lifetime.
In practical effect, he is in no different position than a defendant who
has received a sentence of life without possibility of parole: he will be in
prison all his life. However, imposition
of a sentence of life without possibility of parole in an appropriate case does
not constitute cruel or unusual punishment under either our state Constitution [citation]
or the federal Constitution. [Citation.] [¶] Moreover, in our view, a sentence
such as the one imposed in this case serves valid penological purposes: it
unmistakably reflects society’s condemnation of defendant’s conduct and it
provides a strong psychological deterrent to those who would consider engaging
in that sort of conduct in the future.”
(Byrd, at p. 1383.) The same is true here. That appellant will “be in prison all his
life” does not render his sentence cruel or unusual. And as in Byrd,
appellant’s sentence serves a “valid penological purpose[:]” to punish
appellant’s unmistakably reprehensible conduct and to deter others from
engaging in that type of conduct in the future.
(Byrd, supra, 89 Cal.App.4th
at p. 1383.)
Appellant’s
other arguments — that the sentence is cruel and unusual because he has a
“limited” criminal record and “might be impaired by mental illness” — are
similarly unpersuasive. The probation
report chronicles appellant’s long criminal history, beginning at age nine and
increasing in severity until his arrest at age 31 for the current
offenses. The fact that there was
evidence appellant “might” have a mental illness does not persuade us that his
sentence is cruel or unusual. First,
appellant did not raise this argument in the trial court. In fact, he refused to discuss his mental
issues with the probation officer and directed the court not to consider a
document “from someone who appear[ed] to be a psychiatrist” at his sentencing
hearing.
this argument on appeal. (
1500, 1503; People v. Ross (1994) 28
Cal.App.4th 1151, 1157, fn. 8.)
Appellant’s argument fails for the additional reason that he cites no
authority supporting it.
Appellant
contends his sentence is cruel and unusual under the Eighth Amendment to the
United States Constitution, which “‘prohibits imposition of a sentence that is
grossly disproportionate to the severity of the crime.’” (Ewing
v. California (2003) 538 U.S. 11, 21, quoting Rummel v. Estelle (1980) 445 U.S. 263, 271.) He makes no effort, however, to establish how
the sentence here is “‘grossly disproportionate to the severity of the
crime.’” (Id. at p. 21.) Instead, he
cites People v. Carmony (2005) 127
Cal.App.4th 1066. There, the appellate
court determined a recidivist penalty of 25 years to life in prison under the
Three Strikes Law constituted cruel and unusual punishment under the federal
Constitution because the “harshness of the recidivist penalty [was] grossly
disproportionate to the gravity of the offense.” (Id.
at p. 1077.) The Carmony court explained the defendant’s violation of the annual
registration requirement under former Penal Code section 290 was a “technical
and harmless violation of the registration law” akin to a “breach of an
overtime parking ordinance.” (
Carmony
is inapposite. Here and in contrast to
the Carmony defendant’s “technical
and harmless violation[,]” appellant and his friend forcibly raped, digitally
penetrated, and orally copulated two vulnerable women, one of whom was
pregnant. Appellant’s actions were
nothing like a “breach of an overtime parking ordinance.” (Carmony,
supra, 127 Cal.App.4th at p. 1079.)
DISPOSITION
The
judgment is affirmed.
Jones,
P. J.
Needham, J.
Bruiniers, J.
name="_ftn1" title="">[1] Unless
otherwise noted, all further statutory references are to the Penal Code.
name="_ftn2" title="">[2] The
trial court granted appellant’s Faretta
motion and allowed appellant to represent himself at trial and at the
sentencing hearing. (
806.)
