P. v. Avalos

Filed 1/26/09 P. v. Avalos CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Yolo)

----

Defendant Albert Joe Avalos was charged with failing to register as a sex offender (count 1; Pen. Code, 290, subd. (g)(2); undesignated section references are to the Penal Code), resisting a peace officer (counts 2 & 3; 148, subd. (a)(1)), and providing false information to a peace officer (count 4;  148.9, subd. (a).) The information also alleged as to count 1 that defendant had suffered two prior strike convictions for lewd and lascivious acts with a minor ( 288, subd. (a), 667, subds. (d), (e)(2), 667.5, subd. (c), 1192.7, subd. (c)), both occurring on May 28, 1992, and had served two prior prison terms ( 667.5, subd. (b)).^[1]

Defendant pled guilty to count 1 and admitted the associated allegations in return for the dismissal of the remaining counts. He then filed a motion to strike one or both of his strikes for sentencing purposes, which the People opposed. (Cf. 1385; People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).)

At sentencing, the trial court denied defendants Romero motion and imposed a state prison term of 25 years to life. Defendant contends: (1) the trial court abused its discretion by denying the motion; (2) his sentence constitutes cruel and unusual punishment; and (3) his constitutional right not to be placed twice in jeopardy was violated because his current offense is so minor, even when his recidivism is considered, that his life sentence represents being twice punished for his prior convictions. We shall affirm.

FACTUAL AND PROCEDURAL BACKGROUND

According to the probation report, the facts leading to defendants arrest in the present case were as follows:

In July or August 2005, a confidential informant told an officer that a person wanted by the police was living at an address in Woodland under the name Primo. In late August or early September 2005, officers went to the address, where the homeowner directed them to a person who called himself Primo but said his real name was Jesse. Investigation of the last name and date of birth he provided disclosed no warrants, and local records showed nothing; therefore the officers did not detain him. In November 2005, however, a confidential informant said Primo was really Albert Avalos of Sacramento. Recognizing defendant from a California ID photo, the police took him into custody; he continued to give the false name Jesse and resisted arrest. He was detained on misdemeanor charges and a parole violation. Thereafter, a parole agent told the police that defendant was a registered sex offender from Sacramento who had not registered in Woodland; he was then charged with that offense as well. An officer determined that defendants Woodland address was 56 yards from a middle school.

Before the sentencing hearing, the Yolo County Probation Department furnished the trial court the Sacramento County Probation Departments report from defendants 1992 Sacramento County case, in which he pled guilty to five counts of violating section 288, subdivision (a), between December 23, 1987, and March 1, 1992, and admitted an allegation of substantial sexual conduct ( 1203.066, subd. (a)(8), (9)) as to one count.^[2] According to that probation report, defendant began to molest the victim, his stepdaughter, when she was six years old, and continued for four years.

The sentencing hearing

Defendant presented four witnesses in support of his Romero motion: his prison pastor Gary Clements, his wifeL. J., his son A., and his daughter or stepdaughter P. (the victim in the Solano County case). He also testified on his own behalf.

Clements testified that he had met defendant in the Yolo County Jail. Defendant had made a commitment to the Lord. Clements felt sure that defendants conversion was genuine.

L. J. testified that defendant deserved a second chance because he had changed and now felt remorse over his past acts. They had been together for 10 years when he was arrested for molesting her daughter; she had not realized it was going on until he was arrested. She knew he had had drug problems and believed no one can really overcome such problems. She did not know that he had violated a parole condition by making contact with one of L. J.s children. When they were together in 2006, she knew he had failed to register as a sex offender and kept telling him to do so, but he would not because he kept saying he had already messed up. They used methamphetamine together at that time.

A., defendants son or stepson, testified that defendant was a good man who had provided for his family and should not go to prison for life. It did not change his opinion that the victims of his fathers felonies were his sisters.

P., now 15 years old, testified that defendant was a good father, even though he had molested her when she was in sixth grade; she forgave him and did not believe he would do it again. She had seen him in her mothers company at his workplace within the last three years.

Defendant testified that he was sentenced to 14 years in prison for his first felony; he served eight years and was out on parole for three years. He committed two parole violations, the first for using methamphetamine and the second for being out of [his] area while working. While still on parole, he was convicted again for his sexual offense against P. He was sentenced to 32 months in prison and served 28 before being released on parole in 2004. He was returned to prison again on a parole violation for using methamphetamine.

After again being released on parole, defendant spent several months in a Sacramento halfway house, where he registered as a sex offender. According to defendant, he left in March 2005 after speaking to his parole officer and requesting leeway so that he could continue to work at a job in a distant part of town; he went to live with a cousin. But when he returned to his home on a visit, he saw a team of sheriffs deputies in front of the house, so he just . . . kept walking. Then he went to Woodland, got a job, lived at his work site, tried to make ends meet, and tried to reach out to his children. He had had a drug problem the whole time. Now, however, he had accepted Christ into his life, understood what he had done wrong, and wanted to stay out of prison so as to be able to help his family and do Gods will.^[3]

On cross-examination, defendant testified that he had told two officers in Vacaville that he was an unregistered sex offender with warrants out on him, and they did nothing.^[4] He admitted that when he moved to Woodland he was absconding from [the] Sacramento Police Department, and . . . on the run[,] and he gave two officers in Woodland a false name. He also admitted that he had sought out P. when he was on parole, despite a parole condition which forbade contact with her.

Defense counsel argued that defendants conversion in jail, family support, and good work history would justify the trial courts exercise of discretion to strike one or both strikes. The prosecutor retorted that defendant, a multiple sexual offender whose victims were his own young children or stepchildren, consistently violated the terms and conditions of parole by using drugs and making prohibited contacts with his family; he had not been free of custody or parole since 1992; and he had lied about his identity three times to Woodland police. In short, he was exactly the type of person for whom the Three Strikes law was designed.

Without stating reasons, the trial court denied defendants Romero motion.

DISCUSSION

I

Defendant contends that the trial court abused its discretion by denying his Romero motion. We disagree.

When a trial court decides not to dismiss or strike a prior strike under section 1385, we review its decision under the abuse of discretion standard. (People v. Carmony (2004) 33 Cal.4th 367, 374-375.) In the context of sentencing decisions, a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it. (Id. at p. 377.)

The Three Strikes law establishes a sentencing requirement to be applied in every case where the defendant has at least one qualifying strike, unless the sentencing court conclud[es] that an exception to the scheme should be made because, for articulable reasons which can stand scrutiny for abuse, this defendant should be treated as though he actually fell outside the Three Strikes scheme. [Citation.] (People v. Carmony, supra, 33 Cal.4th at p. 377.) On a silent record, we presume that the trial court understood and properly exercised its discretion. (Ibid.)

Defendant was convicted twice of felony sexual offenses against his young stepdaughters. He was never able to remain free of custody or parole from 1992 until his latest arrest in 2005. Each time he was paroled, he violated his parole conditions. Most recently, he not only failed to register as a sex offender, but absconded to another county where he hid out under a false name while living 56 yards from a middle school. Finally, when caught he resisted arrest. Under these circumstances, the trial courts refusal to strike either of defendants prior strike convictions was not so irrational or arbitrary that no reasonable person could agree with it. (People v. Carmony, supra, 33 Cal.4th at p. 377.) Defendants jailhouse conversion, work history, and family support are not enough to place him outside the spirit of the Three Strikes scheme in light of his continuous criminal history from 1992 to the present.

Defendant relies on People v. Carmony (2005) 127 Cal.App.4th 1066 and People v. Cluff (2001) 87 Cal.App.4th 991. These decisions do not assist him.

In People v. Carmony, supra, 127 Cal.App.4th 1066, this court addressed only the issue of cruel and/or unusual punishment. Therefore we defer our discussion of the case to part II of the Discussion.^[5]

People v. Cluff, supra, 87 Cal.App.4th 991, is distinguishable. The defendant there failed to update his sex-offender registration within five days of his birthday, but continued to live at his last registered address, where the police found him when they looked for him. (Id. at pp. 994, 1001.) The appellate court found that his technical violation of the law did not show the intent to deceive or evade law enforcement. (Id. at p. 1001.) Here, defendant evidently had that intent.

Defendant has failed to show that the trial court abused its discretion by denying his Romero motion.

II

Defendant contends that his sentence of 25 years to life in prison for the technical offense of failing to register constitutes cruel and unusual punishment under the United States Constitution and cruel or unusual punishment under the California Constitution. Assuming that this contention is not forfeited for failure to raise it in the trial court (see People v. Williams (1998) 17 Cal.4th 148, 161-162, fn. 6; People v. Saunders (1993) 5 Cal.4th 580, 589, fn. 5; but see People v. Norman (2003) 109 Cal.App.4th 221, 229; People v. DeJesus (1995) 38 Cal.App.4th 1, 27), it fails on the merits.^[6]

The federal claim

Under the proscription of cruel and unusual punishment in the Eighth Amendment to the United States Constitution (applicable to the states via the Fourteenth Amendment), a narrow proportionality principle . . . applies to noncapital sentences. (Ewing v. California (2003) 538 U.S. 11, 20 [155 L.Ed.2d 108, 117] (Ewing) (lead opn. of OConnor, J.), quoting Harmelin v. Michigan (1991) 501 U.S. 957, 996-997 [115 L.Ed.2d 836, 865-866] (Harmelin).) This constitutional principle forbids only extreme sentences that are grossly disproportionate to the crime. (Ewing, supra, 538 U.S. at p. 23 [155 L.Ed.2d at p. 119], quoting Harmelin, supra, 501 U.S. at p. 1001 [115 L.Ed.2d at p. 869].)

Objective factors guiding the proportionality analysis include (i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for the commission of the same crime in other jurisdictions. (Solem v. Helm (1983) 463 U.S. 277, 292 [77 L.Ed.2d 637, 650].) But only in the rare case where the first factor is satisfied does a reviewing court consider the other two factors. (Harmelin, supra, 501 U.S. at p. 1005 [115 L.Ed.2d at pp. 871-872] (conc. opn. of Kennedy, J.).)

The United States Supreme Court rejected an Eighth Amendment challenge to a 25-years-to-life Three Strikes sentence in Ewing, supra, 538 U.S. 11 [155 L.Ed.2d 108]. The high court noted that recidivism has traditionally been recognized as a proper ground for increased punishment. (Id. at p. 25 [155 L.Ed.2d at p. 120].) Given the defendants long criminal history, the court held that the defendants punishment was not disproportionate despite the relatively minor character of his current felony. (Id. at p. 29 [155 L.Ed.2d at p. 122].)

Here, as we have explained in part I above, defendants criminality was prolonged and consistent. His punishment was not grossly disproportionate in light of that record. (See People v. Poslof (2005) 126 Cal.App.4th 92, 109; People v. Meeks (2004) 123 Cal.App.4th 695, 706-710 (maj. opn. of Hull, J.).)

People v. Carmony, supra, 127 Cal.App.4th 1066, in which this court held that it was cruel and unusual punishment to impose a term of 25 years to life in prison on a Three Strikes defendant whose present offense was failing to register as a sex offender, is distinguishable. As in People v. Cluff, supra, 87 Cal.App.4th 991, Carmonys violation was merely technical, consisting solely in failure to provide duplicate registration information that the authorities already possessed. (People v. Carmony, supra, 127 Cal.App.4th at p. 1073.) We noted: We have no occasion to consider the appropriateness of a recidivist penalty when the predicate offense does not involve a duplicate registration. (Id. at p. 1073, fn. 3.) Here, it does not do so. We further noted: [B]ecause defendant did not evade or intend to evade law enforcement officers, his offense was the most technical and harmless violation of the registration law we have seen. (Id. at p. 1078.) We distinguished People v. Meeks, supra, 123 Cal.App.4th 695, on the ground that the defendant there changed his residence and then failed to register. Because defendant here acted like the defendant in People v. Meeks, not the defendant in People v. Carmony, the latter case does not assist him.

The state claim

Article I, section 17 of the California Constitution proscribes cruel or unusual punishment. Although this language is construed separately from the federal constitutional ban on cruel and unusual punishment (People v. Carmony, supra, 127 Cal.App.4th at p. 1085), the method of analysis is similar: the reviewing court considers the nature of the offense and/of the offender, with particular regard to the degree of danger both present to society; the comparison of the challenged penalty with the punishments prescribed in the same jurisdiction for different offenses; and the comparison of the challenged penalty with the punishments prescribed for the same offense in other jurisdictions . . . . (In re Lynch (1972) 8 Cal.3d 410, 425-427.) The purpose of this analysis is to determine whether the punishment is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity. (Id. at p. 424.)

Applying this analysis, we do not find that this is one of those rare cases where the sentence is so disproportionately harsh as to shock the conscience or to offend fundamental notions of human dignity. (See People v. Kinsey (1995) 40 Cal.App.4th 1621, 1631.) As indicated above, defendants past and present offenses are grave and suggest that setting him at liberty would endanger society. His punishment is not disproportionate to that inflicted on other recidivists under the Three Strikes law, including those whose present offense, like defendants, is not a serious or violent felony under that law. (See, e.g., People v. Poslof, supra, 126 Cal.App.4th at p. 109; People v. Meeks, supra, 123 Cal.App.4th at pp. 706-710; People v. Martinez (1999) 71 Cal.App.4th 1502, 1510-1512.) Finally, the interjurisdictional test does not require proof that Californias sentencing scheme as to recidivists is less harsh than others. (Martinez, supra, 71 Cal.App.4th at p. 1516.)

Conclusion

Defendant has not shown that his punishment was cruel and unusual under the federal Constitution or cruel or unusual under the California Constitution.

III

Lastly, defendant contends his punishment violates the double jeopardy provisions of the United States and California Constitutions. (U.S. Const., 5th Amend.; Cal. Const., art. I,  15.) It does not.

Defendant argues that, because his present offense was minor and technical, he has in effect been doubly punished for his prior felonies. But since defendants present offense was neither minor nor technical, his conclusion does not follow.

DISPOSITION

The judgment is affirmed.

SIMS , Acting P. J.

We concur:

DAVIS , J.

ROBIE , J.

Publication Courtesy of California free legal resources.

Analysis and review provided by Spring Valley Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com

^[1] The information alleged that the first prior prison term was served after conviction of a felony on May 28, 1992, in Sacramento County, and the second was served after conviction of a felony on November 1, 2002, in Solano County.

According to the probation report in the present case, the 2002 felony conviction was for a violation of section 647.6 (annoying or molesting a minor). The victim was another of defendants daughters or stepdaughters.

^[2] The probation report in the present case, however, states that defendant was convicted on four counts in the Sacramento County case. He received a state prison term of 14 years.

^[3] Defense counsel proffered certificates of defendants completion of prison ministries courses and vocational education training as exhibits.

^[4] The trial court found the officers alleged conduct [r]emarkable. The prosecutor later suggested that defendants claim was not credible.

^[5] The Supreme Courts decision in People v. Carmony, supra, 33 Cal.4th 367, reversed this courts original holding that the trial court abused its discretion by denying the defendants motion to strike his prior strike convictions and remanded for further proceedings. (Id. at p. 380.) We thereupon decided only the issue of cruel and/or unusual punishment, which the Supreme Court had left open.

^[6] Defendant filed a supplemental opening brief contending that trial counsel was ineffective for failing to raise this issue and the issue of double jeopardy (see part III of the Discussion). Because we find that there was no reasonable possibility defendant would have achieved a better outcome had trial counsel raised these issues, counsels performance was not ineffective. (People v. Ledesma (1987) 43 Cal.3d 171, 216-217.)