P. v.
Filed 3/15/13 P. v. Jackson CA4/1
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and parties from citing or relying on opinions not certified for publication or
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
ROBERT JOSEPH JACKSON,
Defendant and Appellant.
D061164
(Super. Ct.
No. SCD233151)
APPEAL from
a judgment of the Superior Court
of
County, Amalia L. Meza, Judge.
Affirmed.
A jury
found Robert Joseph Jackson
name="_ftnref1" title="">[1]
guilty of residential burglary and
robbery. The court found true that
he had five prison priors, four serious felony priors, and four strike priors
and sentenced him to 46 years to life in prison. Jackson
appeals, contending (1) there was insufficient
evidence to support his convictions, and (2) his sentence constitutes
contentions and affirm the judgment.
FACTUAL
AND PROCEDURAL BACKGROUND
In
September 2010, Clifton and Ledesma
Broadhurst were building a shed outside of their home when they heard a noise
possibly coming from inside the house.
They went inside and saw their patio door was open and Ledesma's purse
was sitting wide open on the freezer instead of in the cupboard where it was
usually stored. Clifton
then saw a man trying to leave through a security door. The man was African American, six feet four
inches to six feet five inches tall, had a slender build and was wearing a
white polo shirt with red and black stripes.
The man approached and said, "Everything is cool. Everything is fine." Clifton
stepped in between the man and Ledesma and instructed the man to stay there
while he called the police. The man
shoved Clifton out of the way and
then grabbed Ledesma by the wrists and threw her to the ground. After Clifton
helped Ledesma up, he saw that the man had jumped over the gate in the front
yard and was headed toward an alley.
When Clifton got to the
alley, the man was gone. In the
meantime, Ledesma checked her purse and noticed that her wallet containing at
least $30 was missing. Clifton
returned home where Ledesma was on the phone with a 911 dispatcher.
Duane Zugel, who lived in the area,
heard the struggle and also called 911.
Zugel told the operator that he saw an African American male in his
mid-twenties in a striped shirt run to an apartment complex north of him. Zugel described the suspect as being in his
twenties based on the man's thin build and the way he was running.
Officer Richard Barton received a
report of the burglary and set up a perimeter to attempt to locate the
perpetrator. Officer Joseph Thomas was
at a point on the perimeter when he heard a broadcast description of the
suspect. A neighborhood resident told
Officer Thomas that she saw a male matching the description of the suspect run
behind her yard. On top of a bush in the
front yard of a nearby residence, Officer Thomas found a polo shirt with
vertical red, blue, white and green stripes.
The shirt was moist with fresh sweat and blood stains. Approximately 10 feet away, just on the other
side of a fence, officers found a wallet.
Clifton and Ledesma later
identified the shirt as the one the suspect had been wearing and the wallet as
the one stolen from their home. The
location where the shirt and wallet were found was about four-tenths of a mile
from the Broadhurst's home.
Tests on
the shirt and wallet revealed that both items had blood on them. A DNA analysis of samples taken from the
shirt and wallet matched Jackson's
DNA profile. The probability that a
person selected at random would have the same DNA profile obtained from the
items of evidence and Jackson was
one in four sextillion African Americans.
Defense
Officer
Timothy Lindstrom was one of the officers who responded to the burglary
call. While he was driving to the area,
Officer Lindstrom saw a man wearing a black and red striped shirt and who
generally matched the description of the suspect. The man ran when Officer Lindstrom
approached. Officer Lindstrom chased him
into an alley, but lost sight of him.
After receiving information from a
neighbor, officers tracked down William Harrell, who had a warrant out for his
arrest, at his home. Officers brought
Harrell outside for a curbside lineup. Clifton
was confident that Harrell was not the person who he saw inside his home. In an uncertain tone, Ledesma stated,
"Yes, I think it's him."
Officers took a DNA sample from Harrell, but did not arrest him. Harrell's DNA was not on either the shirt or
wallet found by other officers.
The
Broadhursts' neighbor, Johanne Geoffrion, testified that she saw a man wearing
a striped shirt run down the sidewalk in front of the Broadhursts' home and
into an alley. The man was agile and
moving very fast. Geoffrion described
the man as young, African American and five feet nine to five feet ten inches
tall. The height description may not
have been accurate because Geoffrion was looking down from her vantage
point. Further, Geoffrion described the
man as in his twenties based on the way he moved and because he did not have
gray hair.
DISCUSSION
I. Sufficiency
of the Evidence
A. Additional Facts
At trial,
Officer Barton initially testified that he collected the shirt and wallet by
placing them in one bag. He later
clarified that testimony by stating that he must have used two separate bags
for the evidence because his handwriting indicating different addresses was on
two bags. He then placed the two smaller
bags in one larger bag. Officer Barton
recalled that the shirt was moist with blood, but did not see blood stains on
the wallet. Officers Thomas and Brandon
Woodland both recalled that the evidence was in two separate bags. Similarly, Clifton
testified that he thought the evidence was in two bags. However, Ledesma thought the items were in
one bag.
After he
collected the evidence, Officer Barton took the items to the Broadhursts'
home. He took the wallet and shirt out
of the bag and placed them on the trunk of his vehicle so that the Broadhursts
could identify them. Officer Woodland
and Clifton testified that an officer showed Clifton the shirt for identification
by pulling a portion of it out of the bag and a similar procedure was used for
the wallet. Ledesma stated that the
evidence was shown to her in a bag and then put on the trunk of a police
vehicle.
B. Analysis
Jackson
contends there was insufficient evidence to support his convictions because
nobody specifically identified him as the perpetrator, another man fitting the
description of the suspect was found in the vicinity, and DNA from the shirt
could have contaminated the wallet when the items were placed in the same bag.
In
assessing challenges to the sufficiency of the evidence, we review the whole
record in the light most favorable to the judgment to determine whether it
contains substantial evidence from which a reasonable trier of fact could find
guilt beyond a reasonable doubt. (
396.) It is not our function to reweigh
the evidence (People v. Ochoa (1993)
6 Cal.4th 1199, 1206) and reversal is not warranted merely because the
circumstances might also be reasonably reconciled with a contrary finding. (People
v. Thomas (1992) 2 Cal.4th 489, 514.)
Our sole function is to determine if any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt. (People
v. Bolin (1998) 18 Cal.4th 297, 331; People
v. Marshall (1997) 15 Cal.4th 1, 34.)
Before a conviction can be set aside for insufficiency of the evidence,
it must clearly appear that there is insufficient evidence to support it under
any hypothesis. (People v. Johnson (1980) 26 Cal.3d 557, 575–578.) The same standard of review applies even
"when the conviction rests primarily on circumstantial
evidence." (People v. Kraft (2000) 23 Cal.4th 978, 1053.)
Here, despite Jackson's
contentions, there was sufficient evidence to support his convictions. Although no witnesses were able to
specifically identify Jackson as the perpetrator, direct identification
evidence is not required so long as circumstantial evidence establishes guilt
beyond a reasonable doubt. (
1, 3.) There was an abundance of
circumstantial evidence in this case.
The Broadhursts both described the perpetrator as a tall, thin African
American man wearing a striped shirt.
Neighbors gave a similar description.
While the witnesses described the perpetrator as a young man or in his
twenties and Jackson was actually 54 years old, the witnesses' descriptions
were based on the perpetrator's agility and movements. Additionally, officers found a striped shirt
moist with blood and sweat only about four-tenths of a mile from the
Broadhursts' home. Jackson's DNA was on
that shirt, and Ledesma's wallet was found only ten feet away from it.
We are not persuaded by Jackson's
argument that there was insufficient evidence to establish he was the
perpetrator because blood from the shirt could have contaminated the
wallet. Although Officer Barton
initially testified that he placed the shirt and wallet in one bag, he
clarified that testimony by stating that he must have used two separate bags
and then placed them in one larger bag.
This procedure was supported by testimony from Clifton and Officers
Thomas and Woodland who all recalled that the evidence was in two separate
bags. Although Ledesma had a different
recollection, the jury was free to reject her testimony and accept the
testimony of other witnesses. The same
is true regarding the discrepancies in testimony concerning the procedures used
to show the shirt and wallet to the Broadhursts. Regardless, even without evidence of
Jackson's DNA on the wallet, we conclude there was substantial evidence to
support the convictions.
Lastly, we
are not convinced that because Harrell generally fit the description of the
suspect and was found in the vicinity, Jackson's convictions should be
reversed. Harrell's DNA was not on the
shirt or the wallet found near the crime scene, whereas Jackson's DNA was on
the items. Additionally, Clifton was
confident that Harrell was not the person who he saw inside his home and
Ledesma was uncertain. The evidence
involving Harrell does not negate the strong evidence supporting the jury's
verdicts.
In sum, we
conclude there was sufficient evidence to support Jackson's convictions.
II. Cruel
and Unusual Punishment Claim
A. Background
The court found true that Jackson
had five prison priors, four serious felony priors, and four strike priors and
sentenced him to a total term of 46 years to life in prison. As a result of Jackson's strike priors, his
sentence included two terms of 25 years to life for the residential burglary
and robbery. The robbery sentence was
stayed pursuant to Penal Code section 654.
Additionally, the court imposed a sentence of five years for each
serious felony prior (20 years total) and one year each for Jackson's five
prison priors. Four of the five prison
prior terms were stayed.
Jackson's criminal history dates
back to 1974 when he burglarized a home and stole a .22 caliber pistol. Less than two years later, while being
pursued for a purse snatching incident, Jackson struck a police officer on the
back of the head with an unknown object, resulting in a concussion. In 1978, Jackson was convicted of multiple
burglary offenses. In 1980, he committed
domestic violence against his girlfriend and became violent when arrested. Between 1984 and 2002, Jackson had additional
theft-related convictions, including an incident where he forcefully stole a
wallet out of a man's pocket, causing the pocket to tear and the man to fall to
the ground, and an incident where Jackson grabbed a victim from behind while
instructing someone else to steal the victim's wallet.
B. Analysis
Jackson
contends that his sentence of 46 years to life constitutes cruel and unusual
punishment under the federal and California Constitutions because his current
and past offenses were driven by drug addiction and did not result in serious
harm to his victims. We reject this
argument.
Under the California Constitution,
punishment is disproportionate if it "shocks the conscience"
considering the offender's history and the seriousness of his offenses. (In re
Lynch (1972) 8 Cal.3d 410, 424.) In
analyzing a disproportionality claim under the state Constitution, we examine
(1) "the nature of the offense and/or the offender, with particular regard
to the degree of danger both present to society" (id. at p. 425), (2) the sentence compared to the sentences for more
serious offenses in California (id.
at p. 426), and (3) the sentence compared to sentences for the same offense in
other states (id. at p. 427; see also
People v. Dillon (1983) 34 Cal.3d
441, 479). If a particular punishment is
proportionate to the defendant's individual culpability, there is no
requirement it be proportionate to the punishments imposed in other similar
cases. (People v. Webb (1993) 6 Cal.4th 494, 536.) Accordingly, a determination of whether a
punishment violates the state constitutional prohibition against cruel and
unusual punishment may be based solely on the offense and the offender. (People
v. Ayon (1996) 46 Cal.App.4th 385, 399.)
A defendant must overcome a
considerable burden in order to establish that the sentence is disproportionate
to his level of culpability. Successful
challenges to proportionality are an "exquisite rarity." (People
v. Weddle (1991) 1 Cal.App.4th 1190, 1196–1197.) Courts in a number of California cases have
rejected claims that sentences under the Three Strikes law violated the state
Constitution's prohibition against cruel or unusual punishment. (See, e.g., People v. Romero (2002) 99 Cal.App.4th 1418, 1431–1432 (
381, 388.)
With regard to the first prong of
the analysis, Jackson asserts that although he has sustained numerous
convictions, they were the result of his inability to control his drug
addiction and nobody was seriously harmed during the offenses. Jackson argues that the offenses that
resulted in harm to his victims took place more than 30 years ago and, since
that time, his offenses do not reflect a continuing pattern of violent
behavior. Jackson downplays the
significance of his long and serious criminal history. In addition to the incidents where Jackson
assaulted a police officer and committed domestic
violence against his girlfriend, he also harmed the Broadhursts, forcefully
stole a man's wallet causing the victim to fall to the ground, and grabbed a
victim from behind and held him while someone else stole the victim's
wallet. While the motivation for these
crimes may have been to support Jackson's drug addiction, they included force,
fear and violence. Further, we note that
there is no indication that Jackson has attempted to address his destructive
drug addiction.
Jackson's lengthy criminal history
has not been deterred by parole and was interrupted only by periods of
incarceration. In addition to the nature
of the current offense, "recidivism is a legitimate factor to consider
when imposing a greater sentence than for a first time offense." (People
v. Cuevas (2001) 89 Cal.App.4th 689, 704–705.) "Under the three strikes law, defendants
are punished not just for their current offense but for their recidivism. Recidivism in the commission of multiple
felonies poses a danger to society justifying the imposition of longer
sentences for subsequent offenses. [Citation.]" (People
v. Cooper (1996) 43 Cal.App.4th 815, 823–824.) Despite his admitted drug addiction, Jackson
has not changed his behavior and has engaged in conduct resulting in harm to
others to support his addiction. While
Jackson's sentence is harsh, it is not disproportionate to his
culpability. (People v. Stone (1999) 75 Cal.App.4th 707, 715 [25 years to life
sentence for a nonviolent drug offense is constitutional].) Although we find Jackson's sentence was not
disproportionate based on his current offenses and criminal history, we
nevertheless consider the other disproportionality factors.
Jackson next compares his
punishment with punishments that are prescribed for more serious crimes in
California, including voluntary manslaughter, rape, kidnapping and premeditated
murder. He contends that he poses a
lesser danger to society than persons who commit those crimes. We reject Jackson's comparison of his
sentence under the Three Strikes law to the sentence for first degree murder or
to the sentences for other serious or violent crimes, in the absence of prior
strikes. (See, e.g.,
"Because the Legislature may constitutionally enact statutes imposing
more severe punishment for habitual criminals, it is illogical to compare
[defendant's] punishment for his 'offense,' which includes his recidivist
behavior, to the punishment of others who have committed more serious crimes,
but have not qualified as repeat felons."
[Citation.]' [Citation.]"].)
Jackson also compares his sentence
to recidivist punishments for similar crimes in other jurisdictions, asserting
that "[t]here appears to be no state besides California with a recidivist
statute requiring such mandatory application and lengthy imprisonment
regardless of mitigating circumstances."
The fact " '[t]hat
California's punishment scheme is among the most extreme does not compel the
conclusion that it is unconstitutionally cruel or unusual. This state constitutional consideration 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.' " (Romero,
supra, 99 Cal.App.4th at p. 1433,
quoting People v. Martinez (1999) 71
Cal.App.4th 1502, 1516.)
Accordingly, we reject Jackson's
argument that his sentence constitutes cruel and unusual punishment under
California's Constitution. Similarly, we
cannot say that Jackson's Three Strikes sentence violates the federal Constitution
based on his present offenses and past recidivism. The Eighth Amendment of the federal
Constitution includes a narrow proportionality protection against grossly
disproportionate sentences, but the constitutional
protection against such sentences applies only in the " 'exceedingly rare' " and " 'extreme' " case. (Ewing
v. California (2003) 538 U.S. 11, 17–18, 20, 21, 29–30 (plur. opn. of
O'Connor, J.) [affirming a sentence of 25 years to life under the Three Strikes
law for a recidivist who had shoplifted golf clubs worth $1,200, and whose
prior convictions were for theft, grand theft of an automobile, burglary,
robbery, and battery]; Lockyer v. Andrade
(2003) 538 U.S. 63, 77 [two consecutive 25 years to life terms for two petty
thefts not grossly disproportionate].)
In view of Jackson's current and past offenses and his continuous
criminal history, which has not been deterred, we conclude his sentence is not
grossly disproportionate to his crimes and does not shock the conscience. Thus, Jackson's sentence does not constitute
cruel and unusual punishment.
DISPOSITION
The judgment is affirmed.
McINTYRE, J.
WE CONCUR:
HUFFMAN, Acting P. J.
McDONALD, J.
name="_ftn1" title="">[1] Defendant was charged in
the second amended information as Robert Anderson aka Robert Joseph
Jackson. Prior to trial, he informed the
court that his true name is Robert Joseph Jackson. Accordingly, the court modified the
information to reflect the defendant's name as Robert Joseph Jackson aka Robert
Anderson.
