Opinion
B161010.
7-16-2003
THE PEOPLE, Plaintiff and Respondent, v. GENE ERVIN ATKINS, Defendant and Appellant.
William L. Heyman, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General of the State of California, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Marc E. Turchin, Supervising Deputy Attorney General, and David A. Wildman, Deputy Attorney General, for Plaintiff and Respondent.
Appellant Gene Ervin Atkins was convicted, following a jury trial, of four felony counts of making criminal threats in violation of Penal Code section 422, four misdemeanor counts of disobeying a domestic relations court order in violation of section 273.6, subdivision (a), and one felony count of stalking in violation of section 646.9, subdivision (b). The trial court found true the allegations that appellant had two prior serious felony convictions within the meaning of sections 667, subdivisions (b) through (i) and 1170.12 (the "three strikes" law) and section 667, subdivision (a). The court also found true the allegations that appellant had seven prior prison terms within the meaning of section 667.5, subdivision (b) and that he was on bail at the time he committed the offense of stalking within the meaning of section 12022.1.
All further statutory references are to the Penal Code unless otherwise specified.
The jury acquitted appellant of charges that he made criminal threats and disobeyed a domestic relations court order on January 29, 2002.
The court sentenced appellant to a total term of 47 years and 4 months to life in state prison, consisting of a term of 25 years to life for the stalking conviction pursuant to the three strikes law, plus a two-year term for one count of making criminal threats, plus eight months each for two counts of making criminal threats, plus a two-year term for the section 12022.1 bail enhancement, plus two five-year terms for the section 667, subdivision (a) prior conviction enhancements plus seven one-year terms for the prior prison term enhancements.
Appellant appeals from the judgment of conviction, contending that the trial court erred in refusing to permit him to discharge retained counsel and sentencing him to seven one-year terms for the prior prison term enhancements, and further contending that his sentence constitutes cruel and unusual punishment in violation of the state and federal constitutions. Respondent agrees that only two one-year terms should have been imposed. We agree as well, and order the remaining five one-year terms stricken. We affirm the judgment of conviction in all other respects.
Facts
In the fall of 1998, Kye Wooten became involved in a romantic relationship with appellant. In the spring of 1999, after learning that appellant was married, Wooten attempted to end the relationship. Appellant hit and choked her.
In May, 2001, Wooten obtained a temporary, then a permanent, restraining order against appellant. After the hearing on the permanent restraining order, appellant told Kye that a piece of paper was not going to keep him away from her.
Appellant called Kye every day. He went to her place of employment. He went to the school where her son practiced sports.
The conduct at issue in this case began on January 25, 2002. During the morning of the 25th, appellant called Kye at her place of employment repeatedly. She hung up on him, and eventually set her telephone so that all calls went to her voicemail. When she listened to her voicemail, she heard a message from appellant in which he called her a "lying bitch" and said: "Im going to kill you. I am sick of going through this with you. Trust me, Im going to get you." He also said: "Im going to beat your ass, motherfucker." Kye took these threats very seriously because appellant had hit her in the past and pulled a gun on her.
On January 31, 2002, at about 7:30 a.m., appellant banged on the door to Kyes apartment and said: "Im really getting tired of you. I want to talk to you. Open up this door so we can talk." When Kye refused, appellant threatened to kill her. He said: "Im going to kill you." Kye, looking through the peephole in the door, saw that appellant had a knife in his hand. She immediately called the police.
The jury convicted appellant of making criminal threats and disobeying a domestic court order on January 31, but found not true the allegation that appellant used a deadly weapon in making criminal threats on that date.
On February 1, 2002, Kye went to a restaurant next door to her office for lunch. When she left the restaurant, appellant ran up to about 16 feet behind her, saying that he was going to kill her. Kye ran into her office. Kye testified that appellant had a knife in his hand when he ran toward her.
On February 19, 2002, while at work, Kye was informed that appellant had been arrested. Shortly thereafter, Kye went outside to her car. She saw appellant in a car which pulled up near the parking gate. Appellant said he was going to kill her and made a gesture as if he had a gun in his hand with the forefinger pointing toward her. She was "very scared." When Kye left the parking lot in her car, appellant followed her, eventually pulling up beside her. Kye screamed: "Why are you following me? What do you want? Why are you doing this to me?"
Appellants conduct on February 19 was the basis of the stalking conviction. The jury convicted him of making criminal threats and disobeying a domestic relations court order on this date as well.
Kye was still afraid of appellant at the time of trial because he had said that he was going to kill her and nothing would stop him from getting to her.
Appellants defense, presented through the testimony of relatives and friends, was, in essence, that it was Kye who was unwilling to end the relationship and who followed him everywhere, and that she made up the charges against appellant to get revenge.
Discussion
1. Motion to discharge counsel
Appellant contends that he was denied his right to counsel under the Sixth Amendment to the United States Constitution when the trial court refused to allow him to discharge his retained counsel on the first day of trial. We see no abuse of discretion in the trial courts decision and no denial of appellants Sixth Amendment rights.
"The trial court, in its discretion, may deny such a motion if discharge will result in significant prejudice to the defendant [citation], or if it is not timely, i.e., if it will result in disruption of the orderly processes of justice [citations]. As the court stated in Sampley v. Attorney General of North Carolina (4th Cir. 1986) 786 F.2d 610, 613, the fair opportunity to secure counsel of choice provided by the Sixth Amendment is necessarily [limited by] the countervailing state interest against which the sixth amendment right provides explicit protection: the interest in proceeding with prosecutions on an orderly and expeditious basis, taking into account the practical difficulties of "assembling the witnesses, lawyers, and jurors at the same place at the same time."" (People v. Ortiz (1990) 51 Cal.3d 975, 983-984, 275 Cal. Rptr. 191, 800 P.2d 547.)
Here, appellant made his motion on the first day of trial, apparently at the conclusion of the lunch break. By that time, the court had read the charges against appellant to the prospective jurors, given them preliminary instructions, and begun voir dire. The court mistakenly understood the motion to be a Marsden motion for substitution counsel of appointed counsel, and indicated that the court would hear the motion at the end of the day. At the end of the day, following completion of jury selection, the court heard appellants motion.
People v. Marsden (1970) 2 Cal.3d 118, 84 Cal. Rptr. 156, 465 P.2d 44.
At the hearing, appellant expressed his dissatisfaction with his attorney. The attorney responded to appellants complaints in some detail, and concluded by saying: "Also, I am private counsel. If he wants to fire me and proceed on his own, he has that option. But as far as Im concerned -" The court stated: "Youre court appointed." Appellants counsel replied: "No, Im not. Im private and retained." The court stated: "Well, Im not going to relieve you."
The court then told appellant: "You certainly have the right to represent yourself, but we cant delay this trial any longer. You know, everybody answered ready at the time we started selecting this [jury] and he was sent up here for trial. And my recommendation, frankly, . . . is listen to your lawyer. Im not trying to pressure you. I dont know anything about this case. But were going to continue with this trial tomorrow. [P] And if your motion is to discharge your attorney and get another one, your motion is denied. If your motion is that you want to represent yourself, you know, you have the legal right to do that. And if you want to represent yourself, I would tell you that you would be foolish to do that, but youre certainly entitled to do that. [P] So think about it, and we will see you tomorrow at 10:30."
We see no abuse of discretion in the trial courts decision to deny appellants motion on the ground that it was untimely. The motion was made after jury selection had begun. The prosecutor and appellants attorney had announced that they were ready for trial. Thus, both sides had subpoenaed or otherwise arranged for the 16 witnesses in this case to appear over the next few days. There can be no doubt that rescheduling would have been disruptive. Appellant offered no excuse for the lateness of his request. We cannot agree with appellant that the record strongly suggest that his attorney did not consult with him until a few days before trial.
To the extent that appellant contends that People v. Lara (2001) 86 Cal.App.4th 139 requires reversal of this case, we cannot agree. The trial court in Lara mistakenly believed that the defendant was required to meet the standards of Marsden and premised its denial of the defendants motion on the defendants failure to show the irreconcilable conflict with this attorney required by Marsden. Here, although the trial court initially believed that appellants trial counsel was appointed and that appellant was making a Marsden motion, appellants counsel corrected the court and made it clear that he was retained counsel. The court here explicitly premised its denial of appellants request on the lateness of the request. We also note that in Lara, unlike this case, jury selection had not begun when the defendant made his motion to relieve appointed counsel.
2. Cruel and unusual punishment
Appellant contends that his sentence constitutes cruel and unusual punishment under the California constitution and the Eighth Amendment to the United States constitution. Respondent contends that appellant has waived this claim by failing to raise it in the trial court.
The issue of whether appellants sentence is cruel and unusual punishment is a fact intensive one, and is based on the nature and facts of the crime and offender. (See People v. Weddle (1991) 1 Cal.App.4th 1190, 1196.) It is waived if not raised in the trial court. (People v. Kelley (1997) 52 Cal.App.4th 568, 583; People v. DeJesus (1995) 38 Cal.App.4th 1, 27; see generally People v. Scott (1994) 9 Cal.4th 331, 356, 885 P.2d 1040.) Further, assuming for the sake of argument that this claim were not waived, given the facts before us, we would find that appellants sentence did not constitute cruel and unusual punishment.
Since we find that appellants sentence would not constitute cruel and unusual punishment on the record before us, we reject his claim on appeal that his trial counsels failure to object to the sentence was ineffective assistance of counsel.
We note initially that appellant and respondent both devote a portion of their arguments to reviewing intercase proportionality, that is, comparing appellants sentence to the sentences for similar offenses in other jurisdictions and to the sentences for other crimes in this jurisdiction. However, an intercase proportionality comparison is not required by either the California or the United States Constitutions in assessing whether a sentence constitutes cruel and/or unusual punishment. (People v. Weddle, supra, 1 Cal.App.4th 1190, 1196.) Thus, appellants and respondents intercase comparisons of sentences are not helpful to our analysis.
Further, even if such a comparison were required, it would not aid appellant. "It is illogical to compare [defendants] 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." (People v. Ayon (1996) 46 Cal.App.4th 385, 400, fn. omitted, disapproved on another ground by People v. Deloza (1998) 18 Cal.4th 585, 600, fn.10, 957 P.2d 945.) A comparison of Californias punishment for recidivists with punishment for recidivists in other states shows that many of the statutory schemes provide for life imprisonment for repeat offenders, and several states provide for life imprisonment without possibility of parole. Californias scheme is part of a nationwide pattern of statutes calling for severe punishments for recidivist offenders. (People v. Cline (1998) 60 Cal.App.4th 1327, 1338.)
In Ewing v. California (2003) U.S. [123 S. Ct. 1179, 155 L. Ed. 2d 108], a five-justice majority found that the defendants 25-year-to-life sentence for petty theft with a prior theft-related conviction under the three strikes law did not violate the Eighth Amendment.
Three of those justices opined that the Eighth Amendment had only a "narrow proportionality principle" applicable in non-capital cases, which prohibits only extreme sentences that are grossly disproportionate to the crime. ( U.S. at p. [123 S. Ct. at pp. 1183-1185].) In applying that principle to a recidivist sentencing scheme, both the current offense and the defendants prior offenses must be considered. Deterring and incapacitating recidivist felons are legitimate bases for enhanced punishment. (Id . at p. [123 S. Ct. at pp. 1189-1190].) One additional justice, who concurred in the judgment, opined that the Eighth Amendment did not contain a proportionality principle at all, while a second justice who concurred in the judgment opined that the Eighth Amendment applies only to modes of punishment, not prison terms. (Id. at pp. [123 S. Ct. at pp. 1190-1191].)
In determining whether punishment is cruel or unusual under the California constitution, the basic test is 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." (In re Lynch (1972) 8 Cal.3d 410, 424, 105 Cal. Rptr. 217, 503 P.2d 921, fn. omitted.) Thus, a "defendant must overcome a considerable burden in convincing us his sentence was disproportionate to his level of culpability." (People v. Weddle, supra, (1991) 1 Cal.App.4th 1190, 1197.) Indeed, successful challenges to proportionality are an "exquisite rarity." (Id. at p. 1196.)
We note that the United States Supreme Court refused to invalidate, on disproportionality grounds, a 40-year sentence for possession with intent to distribute nine ounces of marijuana. (Harmelin v. Michigan (1991) 501 U.S. 957, 997, 115 L. Ed. 2d 836, 111 S. Ct. 2680, citing Hutto v. Davis (1982) 454 U.S. 370, 374, fn. 3, 70 L. Ed. 2d 556, 102 S. Ct. 703.)
"Dillon, relying on Lynch, establishes a two-prong analysis. First, the crime itself must be reviewed, both in the abstract and in view of the totality of the circumstances surrounding its commission, including such factors as its motive, the way it was committed, the extent of defendants involvement, and the consequences of his acts . . . , to determine whether a particular punishment is grossly disproportionate to the crime for which it is inflicted. [Citation.] Secondly, the court must consider the nature of the offender and inquire whether the punishment is grossly disproportionate to the defendants individual culpability as shown by such factors as his age, prior criminality, personal characteristics, and state of mind. [Citation.]" (People v. Weddle, supra, 1 Cal.App.4th at pp. 1197-1198, fns. omitted.)
Appellant contends that his sentence is too severe because all of his convictions involved the same victim and no violence was involved in these convictions. He also contends that it is too severe because his remaining life expectancy at sentencing was about 35 years but he will not be eligible for parole for about 43 years, effectively making his sentence one of life without the possibility of parole. Appellant also points out that he has a substance abuse problem. We note that appellants crimes involved threats of violence, including death, which caused great fear in his victim. However, the offense for which appellant received a life term is recidivism. Recidivism of felonies creates a "manifest danger to society" that justifies longer sentences. (See, e.g.,People v. Karsai (1982) 131 Cal. App. 3d 224, 242, 182 Cal. Rptr. 406, overruled on other grounds in People v. Jones (1988) 46 Cal.3d 585, 600, fn. 8, 250 Cal. Rptr. 635, 758 P.2d 1165.) Here, appellants felony record began in 1986. It consists of nine prior felony convictions, two for the serious felonies of robbery and assault with a deadly weapon. Appellant has served numerous prison terms.
The United States Supreme Court has noted that state statutory schemes providing increased punishment for recidivists regularly survive Eighth Amendment challenges. (Rummel v. Estelle (1980) 445 U.S. 263, 268, 63 L. Ed. 2d 382, 100 S. Ct. 1133.)
In short, appellant has not been sentenced to life in prison because he stalked Ms. Wooten and made criminal threats. Rather, he was so sentenced because he is a career criminal who has demonstrated that he has no intention of abiding by the laws of the State of California. Appellants sentence is not so disproportionate to his crimes that it shocks the conscience and offends fundamental notions of human dignity. As applied, the three strikes law does not violate the constitutional prohibitions against cruel and/or unusual punishment.
3. Section 667.5 enhancements
Appellant contends, and respondent agrees, that the trial court erred in imposing five of the seven one-year enhancement terms for prior prison terms. We agree as well.
Two of the prison terms underlying the section 667.5 enhancements were served for appellants two prior serious felony convictions in case numbers A777966 and BA086156. The trial court also imposed five-year enhancement terms for those convictions pursuant to section 667, subdivision (a). A section 667.5 enhancement may not be imposed when the conviction underlying the prison term is a serious felony and an enhancement pursuant to section 667, subdivision (a) has been imposed for the conviction. (People v. Jones (1993) 5 Cal.4th 1142, 1150, 1153, 857 P.2d 1163.) Thus, the two section 667.5 enhancements must be stricken.
Of the remaining five prison terms, four were served together. Thus, appellant served only two separate prison terms as specified in section 667.5, subdivisions (b) and (e). One section 667.5 enhancement may be imposed for the prison term in case number YA 008396 and one for any one of the combined prison terms served in case numbers A097727, A791877, A762493 and A7773527. The remaining three section 667.5 enhancements must be stricken.
Disposition
Five of the section 667.5 one-year enhancement terms are ordered stricken. The clerk of the superior court is directed to prepare a corrected abstract of judgment showing two one-year enhancement terms pursuant to section 667.5, subdivision (b), one for Los Angeles County Superior Court case number YA008396 and for any one of the following cases: Los Angeles Superior Court case numbers A097727, A791877, A762493 and A7773527. The judgment of conviction is affirmed in all other respects.
We concur: TURNER, P.J., and GRIGNON, J.