P. v. Sessing
Filed 7/2/08 P. v. Sessing CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX
THE PEOPLE, Plaintiff and Respondent, v. NATHAN GREGORY SESSING, Defendant and Appellant. | 2d Crim. No. B193895 (Super. Ct. No. 2005009634) (Ventura County) |
Nathan Gregory Sessing appeals the judgment entered after a jury convicted him of first degree murder (Pen. Code[1], 189/187, subd. (a)), two counts of first degree residential burglary ( 459/460, subd. (a)), and assault with a deadly weapon ( 245, subd. (a)(1)). The jury also found true allegations that the murder was committed during a burglary ( 190.2, subd. (a)(17)(G)), that appellant personally used two deadly weapons, a knife and a baseball bat, in committing the offense ( 12022, subd. (b)(1)), and that he personally inflicted great bodily injury upon the victim of the assault ( 12022.7). The trial court sentenced him to state prison for life without the possibility of parole, plus nine years four months, consisting of life without the possibility of parole on the murder count, plus one year for the deadly weapon enhancement, and the upper term of four years on the assault count, plus three years for the great bodily injury enhancement. Sentencing on the burglary count was stayed pursuant to section 654. Appellant contends that his sentence of life without the possibility of parole amounts to cruel and unusual punishment under the state and federal Constitutions, and that he was sentenced to the upper term on the assault count in violation of Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham). We affirm.
FACTS AND PROCEDURAL HISTORY
I.
The March 9, 2003, Burglary
Shortly after 9:00 p.m. on March 9, 2003, Larry Phifer called the Ventura County Sheriff's Department and reported that his house at 124 North Wendy Drive in Newbury Park had been burglarized. Phifer told the responding officer that he had locked and secured the doors and windows and turned off all the lights when he left that morning. When he returned at 9:00 p.m., he discovered that the master bedroom window had been broken. The porch light and the light in another bedroom were also on, and the television in the living room had been pulled away from the wall. Nothing was missing from the house, but a hammer that did not belong to Phifer was found outside by the sliding glass door.
Appellant, who was 16 years old at the time, lived at 245 North Wendy Drive with his father, Greg[2]and his older sister, Katie. Sessing's school friend, David Clarke, testified that the two were walking from appellant's house to a convenience store one evening in February or March of 2003 when appellant veered away from him and went into Phifer's backyard. Earlier that evening, appellant showed Clarke a backpack full of electronic items he claimed to have stolen from Phifer's house. A few minutes after appellant went in the backyard, Clarke walked through the gate and saw a broken window and the shadow of a person inside the house. Appellant exited the house through the broken window, told Clarke that someone was home, and said something like, "Let's get the hell out of here." Appellant and Clarke ran back to appellant's house. Appellant subsequently told Clarke that "the old guy" who lived at the house had a gun. Appellant also confided in Katie that he had broken into the house.
II.
The December 1, 2004, Assault With a Deadly Weapon
Between 9:00 and 11:00 p.m. on December 1, 2004, Brett Cook and his girlfriend, Ginger Black, were sitting in Cook's car in front of Black's house in Newbury Park when they saw appellant attempting to open the door to Black's car. Cook approached appellant and asked what he was doing. Appellant walked toward Cook and met him in the middle of the street. After repeatedly denying that he was trying to break into the car, appellant removed a large kitchen knife from his sleeve and stabbed Cook in the stomach. Cook backed away, and appellant followed him with the knife raised in an overhand position. Appellant ran away after Black got out of the car and started screaming.
Black called 911 while Cook was driving them to his house. An ambulance subsequently arrived at Cook's house and transported him to the hospital, where he spent three or four days after undergoing abdominal surgery.
The morning after the assault, Cook was shown a six-pack photographic lineup that did not include appellant's photograph. Cook stated that the individual depicted in the fourth position resembled the perpetrator, although Cook did not believe it was him. When Cook was subsequently shown a different six-pack lineup that included appellant's photograph, he positively identified him as his attacker.
III.
The December 4, 2004, Burglary and Murder of Larry Phifer
On the evening of December 4, 2004, a Ventura County sheriff's deputy went to 124 North Wendy Drive and discovered that the sliding glass door at the rear of the house was broken. After back-up arrived, the officers entered the house through the garage and found Phifer's body in a pool of blood, just inside the front door. The medical examiner subsequently determined that Phifer had died between midnight and 7:00 a.m. on December 4, from a combination of blunt force trauma and multiple stab wounds. Phifer had six stab wounds to the right side of his neck, three of which penetrated his windpipe, trachea, larynx, and jugular vein. He also had a fatal skull fracture caused by one of two blows to the back of his head and three elongated parallel bruises on his back, all of which were injuries that could have been inflicted by a baseball bat. Glass from the broken sliding glass door was scattered across the room. Blood was found on the back gate and chain link fence, the broken door, the drapes, and along the hallway to the master bedroom. Dusty shoeprints were found on a console by the broken door. There was a dust-free rectangle on the entertainment center, an Apex DVD owner's manual and remote control, and an empty DVD case.
Appellant stayed at Katie's apartment on the night of December 4.[3] Sometime during that visit, appellant asked Katie whether she knew anyone who wanted a DVD player. Later, Katie showed appellant a newspaper article regarding the assault on Cook and asked him whether he committed the crime. Appellant admitted that he had, but told her not to tell anyone. Katie also received a call from Greg, who told her there had been a lot of police activity on Wendy Drive earlier that night. Betty Ann drove appellant back to his father's house the following evening.[4]
On December 6, Katie learned about Phifer's murder and recalled that appellant had admitted burglarizing his house in 2003. Katie called appellant and confronted him, but he denied any involvement in the crime. After discussing the matter with Betty Ann, Katie contacted the police and reported that appellant had admitted stabbing Cook. Appellant was arrested the same day. Later that evening, appellant's residence was searched pursuant to Greg's consent. Officers found an Apex DVD player that was the same size as the dust free rectangle on Phifer's entertainment center and the DVD that matched the empty case. A bloody-handle kitchen knife and four other knives were found in the backyard, and a 30-inch baseball bat was under the ivy in the side yard. Phifer's DNA was found on the bat and bloody knife, and the blade of the knife was consistent with Phifer's stab wounds. Appellant's DNA was also recovered from the bat. Glass fragments embedded in the bat and others found on a rug in appellant's house and in the soles of the shoes he was wearing when he was arrested were consistent with the glass from the broken door at Phifer's house. Appellant's shoes were also consistent with the dusty prints found at the crime scene. Phifer was also identified as a possible source of DNA recovered from the DVD player. A search of the computer at appellant's house revealed that someone had conducted an internet search for "murder Newbury Park" at 9:26 p.m. on December 5.
IV.
Appellant's Testimony
Appellant testified on his own behalf. He admitted burglarizing Phifer's house in March 2003, and also admitted that he stabbed Cook. He also admitted that he stole the DVD player from Phifer's house, but claimed he did so at approximately 9:15 p.m. on December 3 while Phifer was not home. According to appellant, he took his bat to Phifer's house and used it to break the sliding glass door, but left it in Phifer's back yard afterward. He had no idea how the bat or the knife used to stab Phifer ended up in his backyard, although he had "thought strongly about" trying to find out who had "planted" them there. He also admitted conducting an internet search for "murder Newbury Park" after his father called and told Katie about the police activity on Wendy Drive. Although appellant believed the police were there in response to the burglary and purportedly did not know that Phifer had been murdered, he used the word "murder" in his search instead of "burglary" because he believed the latter term was "not specific enough."
Appellant admitted soliciting several people to provide him with false alibis for the assault of Cook and the murder of Phifer, including his parents and sister. He also acknowledged that he urged his father to perjure himself by claiming that he consented to the search of his residence.
DISCUSSION
I.
Cruel and Unusual Punishment
Appellant was sentenced to state prison for a term of life without the possibility of parole (LWOP) for special circumstance murder pursuant to section 190.5, subdivision (b), which provides in relevant part that "[t]he penalty for a defendant found guilty of murder in the first degree, in any case in which one or more special circumstances enumerated in Section 190.2 . . . has been found to be true . . . , who was 16 years of age or older and under the age of 18 years at the time of the commission of the crime, shall be confinement in the state prison for life without the possibility of parole or, at the discretion of the court, 25 years to life." Appellant was 17 years, 10 months old when he committed the murder. The trial court rejected appellant's claim that the sentence amounted to cruel and unusual punishment in violation of the California Constitution, reasoning as follows: "[T]he crime in this case was horrible. And Mr. Phifer was a 61-year-old man who had done nothing in his life to deserve such [a] horrendous end. . . . [] This crime was so violent, so unprovoked, there was just no reason for it to have happened, and it was following on the heels of two days before that a stabbing that was also an unprovoked stabbing that there was just no reason for it to have happened. [] . . . [Appellant] brought that knife with him. I'm not sure we can say that it was unpremeditated. The knife and the bat. This was a horrible crime. [] The only thing that gives me pause at all is his age, the fact that he was only 17 at the time. But you talk about him having a motive to do well in prison as being a reason to give him 25 to life rather than life without possibility of parole. [] But I look at what his conduct has been while he has been in custody here, which one would expect would be a time when he might by trying to be on his good behavior for the Court to consider that behavior, but what do I see here? I see six incidences documented that they've had to use force because of his aggressive and noncompliant behavior. [] I also note there are a number of letters talking about the victim and what sort of person he was, but I don't see any letters here from friends or family of [appellant] urging the Court to show some sort of leniency or to exercise my discretion toward leniency. I don't see any of that. The only person who seems to be making that request of the court is [defense counsel]. That says quite a bit to me."
Appellant contends that his LWOP sentence violates the state and federal constitutional proscriptions against cruel and unusual punishment because it is grossly disproportionate to the offense for which it was imposed. We disagree.
A sentence violates the constitutional ban on cruel and unusual punishment when "'it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.'" (People v. Dillon (1983) 34 Cal.3d 441, 478, quoting In re Lynch (1972) 8 Cal.3d 410, 424.) To determine whether a particular punishment is disproportionate to the offense for which it is imposed, we conduct a three-pronged analysis. "First, we examine the nature of the offense and/or the offender, with particular regard to the degree of danger both present to society. A look at the nature of the offense includes a look at the totality of the circumstances, including motive, the way the crime was committed, the extent of the defendant's involvement, and the consequences of defendant's acts. A look at the nature of the offender includes an inquiry into 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.' [Citation.] Next, we compare the challenged punishment with the punishment prescribed for more serious crimes in the same jurisdiction. And finally, the challenged punishment is compared with punishment for the same offense in other jurisdictions." (People v. Thongvilay (1998) 62 Cal.App.4th 71, 88.)
"Reducing a sentence under Dillon 'is a solemn power to be exercised sparingly only when, as a matter of law, the Constitution forbids what the sentencing law compels.' [Citation.] The reduction of a sentence because it is cruel or unusual '"must be viewed as representing an exception rather than a general rule."' [Citation.] 'In such cases the punishment is reduced because the Constitution compels reduction, not because a trial court in its discretion believes the punishment too severe.' [Citation.] Deciding that a punishment is cruel or unusual under Dillonpresents a question of law subject to independent review; it is 'not a discretionary decision to which the appellate court must defer.' [Citation.]" (People v. Felix (2003) 108 Cal.App.4th 994, 1000.) The defendant bears "the considerable burden" of proving that his punishment is cruel or unusual. (People v. Wingo (1975) 14 Cal.3d 169, 174.)
Appellant fails to meet that burden here. Contrary to his contention, "LWOP is the presumptive punishment for 16- or 17-year-old special circumstance murderers . . . ." (People v. Guinn (1994) 28 Cal.App.4th 1130, 1142.) The defendant "must be sentenced to LWOP unless the court, in its discretion, finds good reason to choose the less severe sentence of 25 years to life." (Id. at p. 1141.) The facts of this case plainly support the court's conclusion that the presumptive term was appropriate in this case. Only three days after appellant was released from an extended stay at juvenile hall,[5]appellant armed himself with a knife and baseball bat and proceeded to brutally and viciously murder his defenseless neighbor in his own home, all for a DVD player. Two days prior to that, he stabbed another individual who confronted him while he was attempting to break into a car. In the preceding two years appellant had also committed petty theft, burglary while armed with a knife, and a battery in which his father was the victim. The fact that he had committed other violent offenses in the recent past and was on probation at the time of the murder, weigh in favor of the conclusion that his sentence is not disproportionate to the offense. (Id. at p. 1146.) Appellant's misguided attempt to characterize himself as a "bored teenager" who was "preoccupied with a normal pursuit" of "trying to find something to do" underscores the callousness of his actions.
Appellant's actions after his apprehension provide further justification for the conclusion that the presumptive sentence of LWOP was warranted. Appellant has never expressed responsibility, much less remorse, for committing such a heinous crime. Instead, he continually lied to the police and attempted to suborn perjured testimony from family and friends without any concern for the consequences they might suffer. During the time he was being held for trial, he attacked a deputy, destroyed jail property, and repeatedly engaged in aggressive and disruptive behavior.
All of these circumstances distinguish appellant from the defendant in Dillon. While both were convicted of felony murder for crimes they committed when they were 17 years old, the similarity ends there. In concluding that the life sentence imposed against the defendant in Dillon amounted to cruel and unusual punishment, Justice Mosk noted: "[A]t the time of the events herein defendant was an unusually immature youth. He had no prior trouble with the law, and . . . was not the prototype of a hardened criminal who poses a grave threat to society. The shooting in this case was a response to a suddenly developing situation that defendant perceived as putting his life in immediate danger. To be sure, he largely brought the situation on himself, and with hindsight his response might appear unreasonable; but there is ample evidence that because of his immaturity he neither foresaw the risk he was creating nor was able to extricate himself without panicking when that risk seemed to eventuate." (People v. Dillon, supra, 34 Cal.3d at p. 488.) The same cannot be said of appellant.
Appellant's reliance on Roper v. Simmons (2005) 543 U.S. 551, is also unavailing. That case merely recognizes that the constitutional prohibition of cruel and unusual punishment precludes imposition of the death penalty for crimes committed when the defendant was younger than 18. (Id. at p. 569.) The United States Supreme Court has repeatedly recognized that "the penalty of death is different in kind from any other punishment imposed under our system of criminal justice." (Gregg v. Georgia (1976) 428 U.S. 153, 188.) Indeed, the court in Roper based its decision in part on the availability of an LWOP sentence for juvenile offenders. (Roper v. Simmons, supra, at p. 572 ["To the extent the juvenile death penalty might have residual deterrent effect, it is worth noting that the punishment of life without the possibility of parole is itself a severe sanction, in particular for a young person"].)
A comparison of appellant's punishment with that prescribed for more serious crimes in the state, and for the same offense in other jurisdictions, provides further support for the conclusion that the sentence is neither cruel nor unusual. As the People correctly note, there is no crime of greater seriousness than first degree special circumstance murder, yet there are less serious crimes that carry the same punishment. (See, e.g., 209 [kidnapping for ransom]; 190, subd (c) [second degree murder of peace officer]; 218-219 [attempted or actual train wrecking].) There are also at least seven other states that permit the imposition of LWOP sentences for juvenile offenders. (See, e.g., Ga. Code Ann. 15-11-28(b)(1); Jackson v. State (2004) 359 Ark. 87, 91-92; State v. Massey (1990) 60 Wash.App. 131, 145-146.) Although appellant identifies other states that prohibit the sentence for juveniles, the prohibition of cruel or unusual punishment "does not require California to march in lockstep with other states in fashioning a penal code. It does not require 'conforming our Penal Code to the "majority rule" or the least common denominator of penalties nationwide.' [Citation.] Otherwise, California could never take the toughest stance against repeat offenders or any other type of criminal conduct." (People v. Martinez (1997) 71 Cal.App.4th 1502, 1516.)
In sum, appellant fails to identify any mitigating factors weighing in favor of a finding that the presumptive term of LWOP would be constitutionally impermissible. Appellant committed a calculated, heinous murder, and he acted without encouragement or assistance from anyone else. He made no showing that his sentence exceeds the punishment imposed for less serious crimes or for the same crime in other jurisdictions. Because the sentence is not so disproportionate to the gravity of the offense and appellant's degree of culpability, it does not amount to cruel and unusual punishment.
II.
Upper Term on Assault Count
Appellant contends that the trial court sentenced him to the upper term on the assault count in violation of Cunningham. We disagree.
At sentencing, the trial court may consider the fact of a defendant's prior conviction without submitting that prior conviction to a jury. (Apprendi v. New Jersey (2000) 530 U.S. 466, 490 ["Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt"].) The California Supreme Court has construed the Apprendi prior conviction exception broadly to include "not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of the prior convictions. [Citation.]" (People v. Black (2007) 41 Cal.4th 799, 819.) The court also concluded that "as long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny, any additional fact finding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant's right to jury trial." (Black, supra, at p. 812.)[6]
In imposing the upper term on the assault count, the court stated that appellant's "crime involved great violence and a high degree of cruelty, viciousness or callousness under Rule 4.421." While this finding plainly does not fall within Apprendi's prior conviction exception, the probation report also includes the aggravating factors that "[t]he defendant was on juvenile probation when he committed the present crime" and that "[t]he defendant's performance on juvenile probation was unsatisfactory." Appellant does not dispute that these factors are related to his prior juvenile adjudication. He contends, however, that juvenile adjudications do not qualify as prior convictions for purposes of sentence enhancement, and notes that the issue is currently pending before our Supreme Court (People v. Nguyen (2007) 152 Cal.App.4th 1205, review granted Oct. 10, 2007, S154847.) In the meantime, we agree with those cases concluding that juvenile adjudications qualify as prior convictions in this context. (See, e.g., People v. Lee (2003) 111 Cal.App.4th 1310, 1316, cert. den. (2004) 542 U.S. 906; People v. Smith (2003) 110 Cal.App.4th 1072, 1075; People v. Bowden (2002) 102 Cal.App.4th 387, 394.) Because there was at least one aggravating circumstance that did not have to be found true by a jury, appellant was eligible for the upper term and the court was free to engage in additional fact-finding without violating his right to a jury trial. (People v. Black, supra, 41 Cal.4th at p. 812.)
The judgment is affirmed.
NOT TO BE PUBLISHED.
PERREN, J.
We concur:
GILBERT, P.J.
COFFEE, J.
J. Rebecca Riley, Judge
Superior Court County of Ventura
______________________________
Susan Pochter Stone, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, Lawrence M. Daniels, Supervising Deputy Attorney General, Shawn McGahey Webb, Deputy Attorney General, for Plaintiff and Respondent.
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[1]All further undesignated statutory references are to the Penal Code.
[2] Appellant's relatives are referred to by their first names for ease of reference, and not out of disrespect.
[3]Katie had just moved into her own apartment the day after Thanksgiving.
[4]Although Greg and Betty Ann were still married at the time, they were separated and did not live together. Betty Ann lived in Ojai with appellant's three younger siblings.
[5]The probation report reflects that appellant served 25 days in juvenile hall for joyriding and was released on or about December 1, 2004.
[6]Appellant preserves for federal review his claim that Black was wrongly decided on this point. As he acknowledges, we have no authority to disagree with the decision. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)