People v. Smith CA2/1 ( 2014 )


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  • Filed 12/11/14 P. v. Smith CA2/1
    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 ONE
    THE PEOPLE,                                                          B250733
    Plaintiff and Respondent,                                   (Los Angeles County
    Super. Ct. No. PA068237)
    v.
    BOBBIE SMITH,
    Defendant and Appellant.
    APPEAL from a judgment of the Superior Court of Los Angeles County. David
    B. Gelfound, Judge. Affirmed.
    Nancy J. King, under appointment by the Court of Appeal, for Defendant and
    Appellant.
    Kamala D. Harris, Attorney General, Lance E. Winters, Assistant Attorney
    General, Kenneth C. Byrne and Seth P. McCutcheon, Deputy Attorneys General, for
    Plaintiff and Respondent.
    ________________________
    A jury found Bobbie Smith guilty of false imprisonment by violence (Pen. Code, §
    1
    236), attempted forcible rape (§§ 261, subd. (a)(2), 664), and felonious indecent
    exposure (§ 314, subd. (1)). In a bifurcated trial, the jury found Smith had 11 prior strike
    convictions. The trial court sentenced him to 30 years to life in prison. In a prior
    2
    appeal, this court reversed Smith’s convictions for false imprisonment and attempted
    rape based on insufficiency of the evidence. On remand, the trial court sentenced Smith
    to 25 years to life in prison on the remaining conviction for felonious indecent exposure.
    In this appeal, Smith contends his sentence violates the constitutional ban on cruel
    and unusual punishment. He also contends the trial court abused its discretion when it
    sentenced him as a third strike offender under the “Three Strikes” law instead of
    exercising its discretion to dismiss a prior strike conviction in furtherance of justice under
    section 1385. Rejecting Smith’s contentions, we affirm.
    BACKGROUND
    In setting forth the evidence presented at trial, the verdicts, and the original
    sentence, we quote from our opinion in the prior appeal in this case:
    “I. Prosecution Evidence
    “On July 21, 2010, at about 8:00 a.m., 19-year-old A. M. arrived with her two-
    month-old baby at her mother-in-law’s business, a traffic school, and parked her car
    outside a closed gate in front of the school. The office had not yet opened and A. was
    there to meet a client of the school. When A. first arrived at the school, she noticed
    appellant [Smith] sweeping outside a business next door to the school. She recognized
    him as having swept outside the traffic school once in the past.
    “After the client left, A. walked to the gate, opened it so she could park inside, and
    was getting back into her car when appellant approached and asked if she needed help
    with the gate. As appellant talked, A. noticed he was looking ‘toward [her] breast’ and
    1
    Further statutory references are to the Penal Code.
    2
    People v. Smith (Feb. 27, 2013, B234315) [nonpub. opn.].
    2
    toward [her] vaginal area.’ A. told appellant that she did not need help and proceeded to
    drive through the open gate and parked her car in the driveway. As A. got out of her car,
    appellant approached her again and asked if she wanted him to wash her car. A. declined
    appellant’s offer and entered the office with her baby.
    “A.’s uncle-in-law, Raymundo, arrived at the office and asked A. if she could stay
    a little longer because he needed to go take a shower. Before Raymundo left, appellant
    asked A. while she was outside the school ‘if he could sweep the business’ and A.
    responded she didn’t know and went inside to ask Raymundo. Raymundo said yes,
    telling A. to give appellant two dollars for the job. A. went back outside to where
    appellant was sweeping in front of the neighboring business and told appellant that he
    could sweep the front sidewalk of the school. A. went back inside the office and sat
    behind the desk while Raymundo left.
    “A few minutes after Raymundo left and while A. sat at the desk, appellant walked
    in through the front door and ‘asked for . . . the dustpan.’ Appellant pointed toward the
    bathroom when he asked for the dustpan. Knowing that the dustpan was kept in the
    bathroom, A. stood up to get it. A. did not remember if she told appellant that she would
    get the dustpan, testifying on direct examination that when she stood up she said she
    would get the dustpan, but on cross-examination testifying that she did not tell appellant
    she was going to get the dustpan. At that point, A. did not see appellant’s penis exposed.
    A. went to the bathroom to get the dustpan which was kept next to the sink. The dustpan
    had an upright pole and could be picked up without bending over. A. picked up the
    dustpan and turned back to the door to find appellant standing in the doorway to the
    bathroom. A. had not realized that appellant had followed her to the bathroom and felt
    scared and nervous when she saw that appellant’s ‘soft, semi-erect’ penis was outside his
    pants, through the open zipper. A. moved the dustpan to the side towards appellant.
    With appellant standing in the doorway, A. could not exit the bathroom. Appellant told
    A., ‘it was a nice bathroom or something like that.’ Nervous and scared, A. felt trapped
    because appellant was ‘too close’ and A. ‘was trying to think of a way out.’ Appellant
    stepped forward, causing A. to step back and bump into the bathroom sink. Seeing an
    3
    opening, A. rushed out around appellant, and ‘went really quickly to the back of the desk
    to get [her] cell phone.’ Appellant was close enough to touch A. but he did not try to
    touch or restrain A. in the bathroom, did not tell her she could not leave, did not step in
    front of A. as she left, did not look at or comment about his penis, and did not say
    anything sexual or flirtatious to A.
    “Appellant returned to the front of the office carrying the dustpan with his penis
    still exposed. Scared and too nervous to actually make a phone call, A. attempted to
    scare appellant by pretending to make a call. Appellant stood in front of A. and the desk
    and then walked towards the couch and A.’s baby and said to A., ‘what a pretty baby.’
    At this point, appellant’s penis was still exposed. Appellant did not say anything about
    his penis, did not say anything sexual or flirtatious and did not do anything to direct her
    attention to his penis. Appellant then walked to the front door and while opening the
    door put his penis back into his pants and zipped up his pants. Appellant exited and
    began sweeping. After appellant exited, A. immediately locked the front door and called
    her mother-in-law. Her mother-in-law told A. to call 911 and she did so. [Footnote
    omitted.]
    “About 10 minutes after appellant exited and a few minutes after A. called 911,
    appellant began knocking on the locked front door. At that point, A. had forgotten that
    she owed appellant money for sweeping and that appellant still had the school’s dustpan.
    A minute later, appellant began ‘pounding’ on the window and said, ‘I know you are in
    there. I can still see your baby.’ A. did not respond. About a minute later, A. then heard
    ‘the back door being pounded on.’ From where she was hiding inside a doorless, walk-in
    closet in the office area, A. saw through the window that appellant went back to sweeping
    the front sidewalk of the school and was there when the police arrived and arrested him.
    “Approximately eight minutes after A. made the call to 911, the police arrived and
    arrested appellant. Los Angeles Police Detective Monica McPartland was assigned as the
    investigating officer to the case and interviewed A. later that morning. During the
    interview, A. ‘appeared to be in shock, somewhat upset and crying, very tearful.’
    McPartland searched appellant’s motel room, which was within walking distance of the
    4
    traffic school, and found ‘soft’ pornography and one adult magazine. McPartland
    testified that appellant had been released from prison on December 9, 2009, after serving
    time for crimes that occurred in 1982.
    “II. Prosecution’s Evidence Code Section 1108 Evidence
    “Denise Thomas testified that on March 19, 1982, at about 6:30 a.m., she was on
    her way to Crenshaw High School. Thomas was 14 years old at the time and was
    walking alone when appellant approached her. Appellant held a butcher knife to
    Thomas’s side and told her to get inside his car. Thomas got into the car and appellant
    climbed over her into the driver’s seat and locked the doors. Appellant drove off and
    began masturbating while looking for a place to stop the car.
    “After parking in an alley, appellant told Thomas to pull her pants down and get
    into the back seat. Thomas struggled a little before complying. Appellant then got into
    the back seat with Thomas and raped her. After the rape, appellant drove Thomas to
    another location and told her to ‘get out the car.’ When Thomas got out, she memorized
    the license plate on appellant’s car, wrote it down on her hand, and provided it to police.
    “Thomas testified against appellant as a rape victim in the 1982 trial and another,
    unnamed individual testified as a rape victim as well.
    “Jaide Lightfoot testified about an incident that occurred on March 19, 1982, after
    the incident involving Thomas had occurred. Lightfoot was 16 years old at the time and
    returning from lunch, on her way back to Crenshaw High School. Lightfoot was walking
    with another girl when appellant, sitting in a vehicle, signaled to Lightfoot and waved
    money that he then placed on the passenger seat. As Lightfoot looked at the money,
    appellant jumped out of the car, grabbed Lightfoot, and attempted to remove her pants
    while trying to put her into the car. Lightfoot fought back and was able to grab onto a
    tree which broke appellant’s grasp. After losing his grip, appellant jumped back into his
    car and fled.
    “Lightfoot testified against appellant in the 1982 trial.
    5
    “Along with the testimony of Thomas and Lightfoot, four certified convictions
    were admitted in evidence pursuant to Penal Code section 969b. The convictions
    included three counts of rape and one count of assault with intent to commit rape. This
    document was redacted to six pages in length and included the rape convictions from
    testifying victim, Thomas, and an assault with intent to commit rape conviction from
    testifying victim, Lightfoot, along with two other rape convictions involving another
    single, non-testifying victim.
    “III. Defense Evidence
    Appellant did not testify, and no witnesses were called on his behalf.
    “IV. Conviction and [Original] Sentence
    “The jury convicted appellant of all three counts: false imprisonment by violence
    (§ 236), attempted forcible rape (§§ 664/261, subd. (a)(2)), and indecent exposure with a
    prior conviction (§ 314, par. 1.).
    “In bifurcated proceedings, the jury found to be true that appellant had a prior
    serious felony conviction within the meaning of section 667, subdivision (a), 11 prior
    ‘strikes’ within the meaning of section 667, subdivisions (b) through (i) and 11 prior
    convictions within the meaning of section 667.5, subdivision (b).
    “Appellant was sentenced to 25 years to life for the attempted forcible rape charge
    plus five years pursuant to section 667, subdivision [(a)], for an aggregate term of 30
    years to life. The trial court also sentenced appellant to 25 years to life for the false
    imprisonment charge and 25 years to life for the indecent exposure charge, which were
    both stayed pursuant to section 654.” (People v. 
    Smith, supra
    , B234315, pp. 2-6.)
    V. Prior Appeal and Remand for Resentencing
    Smith appealed from the judgment. This court reversed Smith’s convictions for
    false imprisonment and attempted forcible rape based on insufficiency of the evidence,
    and remanded the matter to the trial court for resentencing. (People v. 
    Smith, supra
    ,
    B234315, p. 15.)
    On July 25, 2013, the trial court held the resentencing hearing. On the
    prosecution’s motion, the court dismissed the five-year prior serious felony enhancement
    6
    under section 667, subdivision (a)(1), and the one-year prior prison term enhancement
    under section 667.5, subdivision (b). The court noted the prosecution was “proceeding
    on the strike priors that were found true” by the jury under the Three Strikes law.
    At the resentencing hearing, Smith’s counsel did not ask the trial court to dismiss a
    prior strike conviction in furtherance of justice under section 1385 as he did at the
    3
    original sentencing hearing. Instead, Smith’s counsel mentioned Proposition 36 and
    argued the trial court could not sentence Smith as a third strike offender because his
    current offense, indecent exposure after a prior lewd or lascivious act conviction (§ 314),
    was not a serious or violent strike. The court pointed out Proposition 36 is not applicable
    to Smith’s sentence due to Smith’s prior convictions for rape and other enumerated sex
    crimes. (§ 667, subd. (e)(2)(C)(iv).) On appeal, Smith concedes the court was correct in
    its interpretation of Proposition 36.
    In resentencing Smith, the trial court referenced Smith’s “multiple priors including
    kidnap, rape, [and] a laundry list of very brutal crimes.” The court noted, during trial, it
    “heard the testimony from some of the prior victims, [a] 13-year-old who was raped by
    the defendant at knife point . . . , along with another teenager who was raped by the
    defendant at knife point . . . . So his prior record is extremely serious. The probation
    report indicates that he’s a sexual predator.”
    On the remaining count for indecent exposure with a prior lewd or lascivious act
    conviction, a felony, the court sentenced Smith as a third strike offender to 25 years to
    life in prison. Smith’s counsel did not make the cruel and unusual punishment argument
    he raises in this appeal.
    DISCUSSION
    Cruel and Unusual Punishment
    3
    At the original sentencing hearing held June 30, 2011 before Judge David B.
    Gelfound, the same judge who presided at the July 25, 2013 resentencing hearing, the
    trial court denied Smith’s motion to dismiss prior strike convictions in furtherance of
    justice under section 1385.
    7
    Smith contends his current sentence of 25 years to life for felonious indecent
    exposure constitutes cruel and/or unusual punishment under the California and United
    States Constitutions.
    The Attorney General argues Smith forfeited this contention on appeal by failing
    to raise it in the trial court. (See People v. Em (2009) 
    171 Cal. App. 4th 964
    , 971, fn. 5;
    People v. DeJesus (1995) 
    38 Cal. App. 4th 1
    , 27.) Smith argues his trial counsel rendered
    ineffective assistance in not making a cruel and unusual punishment argument below.
    Because Smith’s ineffective assistance of counsel claim requires us to address the issue
    on the merits in any event, we need not decide the forfeiture question. Smith’s
    ineffective assistance of counsel claim fails because the sentence does not constitute cruel
    or unusual punishment, as explained below.
    Smith must overcome a “considerable burden” in challenging his penalty as cruel
    or unusual under the California Constitution. (People v. Wingo (1975) 
    14 Cal. 3d 169
    ,
    174.) “[I]n California a punishment may violate article I, section 6, of the Constitution if,
    although not cruel or unusual in its method, it 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.) Our Supreme Court has
    identified three factors for reviewing courts to consider in determining whether a
    sentence constitutes cruel or unusual punishment: (1) “the nature of the offense and/or
    the offender, with particular regard to the degree of danger both present to society”; (2)
    how the punishment compares with punishments for more serious crimes in the same
    jurisdiction; and (3) how the punishment compares with punishments for the same
    offense in other jurisdictions. (Id. at pp. 425, 426-427.)
    In examining the nature of the offense and the offender, we consider “the totality
    of the circumstances surrounding the commission of the offense” and the characteristics
    of the particular defendant, including “prior criminality.” (People v. Dillon (1983) 
    34 Cal. 3d 441
    , 479.) Smith was released from incarceration on December 9, 2009, after
    serving time in prison for the very serious crimes he committed on multiple minor
    victims in March 1992—kidnapping, rape, lewd or lascivious acts. Seven-and-one-half
    8
    months after his release he committed the present offense, indecent exposure, a felony
    due to his prior lewd or lascivious act convictions. The evidence presented at trial was
    sufficient to show he willfully and lewdly exposed his penis in the presence of the 19-
    year-old female victim (§ 314), after previously staring at her breasts and “vaginal area.”
    (People v. 
    Smith, supra
    , B234315, pp. 2, 3.) The victim was frightened and shocked
    when Smith followed her to the bathroom, where she had gone to retrieve the dustpan,
    and then took a step toward her with his penis exposed. While the present offense is
    nonviolent, we disagree with Smith’s characterization of this felony as a “minor offense”
    with “minimal” magnitude, especially given his history as a “sexual predator” (to quote
    the trial court’s finding at the resentencing hearing). Based on our consideration of the
    nature of the offense and the offender, we find Smith’s sentence of 25 years to life is not
    so disproportionate to the present offense that it shocks the conscience and offends
    fundamental notions of human dignity. (Compare People v. Carmony (2005) 
    127 Cal. App. 4th 1066
    , 1086 [“the offense of willful failure to file a duplicate registration as a
    sex offender is a passive, nonviolent, regulatory offense, which causes no harm and poses
    no danger to the public,” and a 25-years-to-life sentence is disproportionate to that
    offense and constitutes cruel and unusual punishment].)
    Turning to the second of the three factors our Supreme Court identified in Lynch, a
    punishment may be deemed disproportionate or “suspect” where more serious crimes in
    the same jurisdiction are “punished less severely than the offense in question.” (In re
    
    Lynch, supra
    , 8 Cal.3d at p. 426.) In comparing Smith’s punishment with punishments
    for more serious crimes committed in California, we must look at sentences for other
    recidivists, not first-time offenders. (People v. Martinez (1999) 
    71 Cal. App. 4th 1502
    ,
    1512.) A defendant sentenced as a third strike offender for a crime more serious than
    felonious indecent exposure would not receive a lighter sentence than Smith. Thus,
    Smith cannot demonstrate his 25-years-to-life sentence is disproportionate when
    compared to sentences imposed and upheld for more serious third strike offenses in
    California.
    9
    In comparing Smith’s punishment with punishments for the same offense in other
    jurisdictions—the third Lynch factor—we note “California’s [Three Strikes] 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.) Smith argues
    California’s Three Strikes law is more severe and lacks the limitations of recidivist
    statutes in other states. He asserts, “the habitual offender provisions in most other states
    require the current felony be of an aggravated type, require the prior convictions to have
    been brought and tried separately, or else provide for an aggravated term far less than that
    imposed here.” “That 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.” (People v. 
    Martinez, supra
    , 71 Cal.App.4th at p.
    1516.)
    Smith’s Three Strikes sentence of 25 years to life for indecent exposure with a
    prior lewd or lascivious act conviction does not shock the conscience and offend
    fundamental notions of human dignity. Felonious indecent exposure is not “an offense so
    minor [like willful failure to file a duplicate registration as a sex offender] that it cannot
    trigger the imposition of a recidivist penalty without violating the cruel and/or unusual
    punishment prohibitions of the United States and California Constitutions.” (People v.
    
    Carmony, supra
    , 127 Cal.App.4th at p. 1071.) Smith’s argument his sentence is
    punishment for his prior (1982) crimes alone, and therefore in violation of the federal and
    state constitutional prohibitions against double jeopardy, is without merit.
    Based on the foregoing analysis, we also reject Smith’s challenge to his sentence
    under the Eighth Amendment to the United States Constitution, which “forbids cruel and
    unusual punishments” and “contains a ‘narrow proportionality principle’ that ‘applies to
    noncapital sentences,’” prohibiting “extreme sentences that are ‘grossly disproportionate’
    to the crime.” (Ewing v. California (2003) 
    538 U.S. 11
    , 20, 23.) “[T]he principles
    developed by our [Supreme C]ourt [regarding the ban on cruel and unusual punishment]
    are similar to those developed by the United States Supreme Court.” (People v. Barrera
    10
    (1993) 
    14 Cal. App. 4th 1555
    , 1566, fn. 7.) In support of his challenge under the Eighth
    Amendment, Smith makes arguments we already rejected above—that his sentence “is
    completely disproportionate to the crime he committed and dishonors all notions of
    human decency . . . , or he is being punished again for the crimes he committed in the
    past, which violates the Fifth Amendment’s prohibition against double jeopardy.”
    Trial Court’s Discretion to Dismiss a Prior Strike
    Smith contends the trial court abused its discretion when it sentenced him as a
    third strike offender under the Three Strikes law instead of exercising its discretion to
    dismiss a prior strike conviction in furtherance of justice under section 1385.
    In People v. Superior Court (Romero) (1996) 
    13 Cal. 4th 497
    , the California
    Supreme Court held, “in cases arising under” the Three Strikes law, a trial court has
    limited “discretion to strike prior felony conviction allegations in furtherance of justice
    pursuant to section 1385[, subdivision ](a).” (Id. at pp. 504, 530, fn. 13.) Our Supreme
    Court also has explained, “any failure on the part of a defendant to invite the court to
    dismiss under section 1385 following Romero waives or forfeits his or her right to raise
    the issue on appeal.” (People v. Carmony (2004) 
    33 Cal. 4th 367
    , 375-376.) Smith did
    not ask the trial court to dismiss a strike when the court sentenced him for felonious
    indecent exposure. Thus, Smith has forfeited this contention on appeal. Briefly
    addressing the issue on the merits to preclude an ineffective assistance of counsel claim,
    we conclude the trial court did not abuse its discretion in sentencing Smith as a third
    strike offender.
    In People v. Williams (1998) 
    17 Cal. 4th 148
    , 161, the California Supreme Court
    concluded, when deciding whether to strike a prior conviction under section 1385, the
    trial court “must consider whether, in light of the nature and circumstances of his present
    felonies and prior serious and/or violent felony convictions, and the particulars of his
    background, character, and prospects, the defendant may be deemed outside the [Three
    Strikes] scheme’s spirit, in whole or in part, and hence should be treated as though he had
    not previously been convicted of one or more serious and/or violent felonies.” (People v.
    
    Williams, supra
    , 17 Cal.4th at p. 161.) In reviewing the trial court’s decision for abuse of
    11
    discretion, we determine whether it “‘falls outside the bounds of reason’” under the law
    and the facts of the case. (Id. at p. 162.) A defendant who “seeks reversal must
    demonstrate that the court’s decision was irrational or arbitrary.” (People v. Myers
    (1999) 
    69 Cal. App. 4th 305
    , 309-310.)
    The trial court did not abuse its discretion in sentencing Smith as a third strike
    offender. Smith cannot demonstrate he falls outside the spirit of the Three Strikes law.
    Smith asserts, at 58 years old (at the time of the resentencing), he “is no longer at an age
    that involves a high risk of reoffending, and any argument that society has an interest in
    incarcerating him until he is 80 years old (and then only releasing him after a parole
    hearing) is simply absurd.” We disagree that the trial court sentenced Smith in an absurd,
    irrational or arbitrary manner. Seven-and-one-half months after he was released from a
    lengthy prison sentence for very serious sex crimes, Smith willfully and lewdly exposed
    his penis in the presence of a 19-year-old female victim and approached her. This
    offense is a felony due to Smith’s prior lewd and lascivious act convictions. The interests
    of justice did not require the court to dismiss a prior strike conviction.
    Smith asserts, in resentencing him, the trial court should have taken his “changed
    circumstances into consideration”—the fact this court reversed his false imprisonment
    and rape convictions—and given him a lighter sentence. Not so. Felonious indecent
    exposure is not a trivial offense, and the trial court did not abuse its discretion in
    sentencing Smith as a third strike offender.
    DISPOSITION
    The judgment is affirmed.
    12
    NOT TO BE PUBLISHED.
    CHANEY, Acting P. J.
    We concur:
    JOHNSON, J.
    MILLER, J.*
    *
    Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant
    to article VI, section 6 of the California Constitution.
    13
    

Document Info

Docket Number: B250733

Filed Date: 12/11/2014

Precedential Status: Non-Precedential

Modified Date: 4/17/2021