P. v. Horton CA4/1

Filed 5/31/13 P. v. Horton CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D061799
Plaintiff and Respondent,
v. (Super. Ct. No. SCN278129)
TIMOTHY RODERICK HORTON,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Daniel
B. Goldstein, Judge. Affirmed.
Donna L. Harris, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Joy
Utomi, Deputy Attorneys General, for Plaintiff and Respondent.
Timothy Roderick Horton pleaded guilty to failure to register as a sex offender
within five days of changing his residence address. He also admitted the truth of five
felony offenses that qualified as strike priors. The trial court sentenced Horton to an
indeterminate term of 25 years to life. Horton asserts the trial court erred in refusing
to strike all five of his prior strike convictions or at least four of them, and claims that
the resulting sentence of 25 years to life is cruel and unusual. He also asserts the
abstract of judgment must be corrected and an amended abstract prepared to reflect
that the trial court ordered certain fines be stayed. We reject Horton's contentions and
affirm the judgment.
DISCUSSION
I. Motion to Strike Prior Convictions
A. Horton's Criminal History
In 1980, when Horton was 22 years old, he received a six-year prison sentence
after being convicted of rape, forcible oral copulation, assault and kidnapping. Horton
had been drinking in a bar where the victim worked as a dancer. He hid in the back of
the victim's van until she got off work. He put a tire iron to the victim's throat and
forced her to drive to Balboa Park. After forcing the victim to disrobe, he raped her
for about five minutes. When the victim did not respond to his kiss, Horton slapped
her face, bound, gagged and blindfolded her. He then forced her legs apart and orally
copulated her. Horton lit several matches, let them burn near the victim's vagina and
then digitally penetrated her. The attack stopped when a park worker came by to
investigate the van.
In 1985, about three years after being paroled, Horton went to a party with
another victim. As he drove the victim home, Horton began making sexual advances
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towards her. When the victim protested, he hit her, stabbed her in the neck with a pen
and ripped off her shirt. After parking the car, Horton forced the victim to disrobe,
tightened a belt around her neck and then forced her to orally copulate him. He also
digitally penetrated her, placed an object into her vagina and threatened to kill her if
she did not cooperate. He eventually drove the victim back to her car. The victim left
and reported the incident to a police officer. Horton received a 15-year prison term
after being convicted of forcible oral copulation, penetration with a foreign object and
false imprisonment.
In 1985, Horton repeatedly raped a woman at knifepoint, choked her and
threatened to kill her. A hospital examination of the victim revealed injuries consistent
with her description of the assault, but Horton was never charged for this offense
because law enforcement lost contact with the victim.
B. Motion to Strike Hearing
Horton requested that the trial court strike his prior strike convictions and
sentence him to probation or the middle term of two years. Defense counsel pointed
out that after being released from prison in 1993, Horton maintained sobriety and
successfully completed parole in 1996. Other than the conviction in this matter and a
traffic infraction, Horton suffered no other convictions since he was released from
prison about 18 years ago. Horton is married, lived with his wife and stepgrandson,
and was employed as a tow truck driver for years. Horton claimed that his
stepgrandson had been ostracized where they previously lived and that he did not
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register his new address to protect his stepgrandson and family from the stigma
associated with the registration requirement.
Horton has "COPD" with half of his lung function, has suffered five heart
attacks and has two occluded vessels beyond repair. A psychological evaluator
concluded that Horton did not meet the diagnostic criteria for paraphilia, that he was
not at substantial risk for sexual reoffense and posed a low risk of violence towards
others. The People opposed the motion and, after pointing out several other factors,
requested that Horton be sentenced to 25 years to life in prison.
At the hearing, the trial court heard statements from Horton and Horton's
stepgrandson. After hearing argument from the prosecutor, the trial court noted that it
read the probation report and that it needed to weigh the seriousness of the prior strike
offenses, the amount of time between these offenses and the current offense, and
whether the sentence imposed offends equal protection and due process. The court
stated that Horton was "slippery" about registering and that this weighed "heavily"
because the community and law enforcement did not have notice of his whereabouts.
It then commented that because the case was charged with one count, the maximum
sentence if it struck four strikes would be six years—the aggravated term doubled, and
if it did not strike four strikes, the mandatory sentence was 25 years to life. However,
based on Horton's history, it was not willing to strike four strikes and there was "no
point" in striking one or two strikes. Accordingly, the trial court declined to strike the
strike priors and imposed a sentence of 25 years to life.
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C. Analysis
Horton contends that the trial court abused its discretion in refusing to strike his
prior strike convictions because his offenses, background, character and prospects
demonstrate that he is outside the spirit of the Three Strikes law.
A trial court has limited discretion to strike prior convictions in Three Strikes
cases (Pen. Code, § 1385; People v. Superior Court (Romero) (1996) 13 Cal.4th 497,
530) and we will not disturb the trial court's ruling absent an abuse of that discretion
(People v. Gillispie (1997) 60 Cal.App.4th 429, 434). (Undesignated statutory
references are to the Penal Code.) In reviewing under this standard, we are guided by
two principles. First, the party attacking the sentence must clearly show that the
sentencing decision was irrational or arbitrary. (People v. Carmony (2004) 33 Cal.4th
367, 376–377 (Carmony).) Without such a showing, we presume that the trial court
acted to achieve legitimate sentencing objectives and we will not set aside its
discretionary determination to impose a particular sentence. (Ibid.) Second, we are
not authorized to substitute our judgment for the judgment of the trial court and we
will not reverse the trial court's decision merely because reasonable people might
disagree. (Ibid.)
A trial court abuses its discretion for failing to strike a prior strike only in very
"limited circumstances." (Carmony, supra, 33 Cal.4th at p. 378.) These limited
circumstances include a showing that the trial court was unaware of its discretion to
strike, the trial court considered impermissible factors, or where the trial court's
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mechanical application of the statute yields " 'an "arbitrary, capricious or patently
absurd" result'. . . ." (Ibid.)
Applying these principles, the trial court did not abuse its discretion. Horton
has made no showing of the use of improper reasons by the trial court, i.e., a
misunderstanding of the power to strike or the use of an inappropriate reason. (See
Carmony, supra, 33 Cal.4th at p. 378.) Moreover, Horton has not shown that the trial
court made an arbitrary, capricious or patently absurd decision.
In arguing that the trial court abused its discretion in refusing to strike his prior
convictions, Horton argues the same factors he raised below, namely: the five prior
offenses involved two incidents within one period of aberrant behavior; the present
offense did not involve violence, physical harm or monetary damage; he has a family
and had been gainfully employed for about 19 years; and a psychologist did not
consider him dangerous.
As the trial court acknowledged, Horton's prior convictions were "severe." In
2010, Horton's employer fired him for using a company credit card to purchase
pornography and a company computer to access adult Web sites and send e-mails
soliciting sex. Additionally, while out on bail for the current offense and subject to the
condition prohibiting association with minors, Horton violated the condition by being
alone with minors on several occasions. Moreover, Horton's failure to register
spanned a number of years and was intentional.
Given that Horton has five prior strike convictions, the trial court would have
needed to strike four of the strike priors to make any difference in Horton's sentence.
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The trial court expressly considered this option and rejected it. While reasonable
minds could differ, we cannot say that the trial court's refusal to strike Horton's prior
strike convictions was irrational, arbitrary or patently absurd. (Carmony, supra, 33
Cal.4th at p. 378.) Accordingly, the trial court did not abuse its discretion.
II. Cruel and/or Unusual Punishment
Horton contends that his sentence of 25 years to life for the current offense
constitutes cruel and unusual punishment under the federal and California
Constitutions because it is effectively a sentence of life without parole and thus is cruel
and unusual as applied to him. (U.S. Const., 8th Amend. [prohibits infliction of "cruel
and unusual" punishment]; Cal. Const., art. I, § 17 [prohibits infliction of "[c]ruel or
unusual" punishment].) Horton asserted in his motion to dismiss a strike that a life
term should not be imposed; however, he never objected that such a sentence would
constitute cruel and unusual punishment, nor did he raise this objection at the
sentencing. (People v. Norman (2003) 109 Cal.App.4th 221, 229.) In any event, we
exercise our discretion to consider his contention on its merits to avoid a claim of
ineffectiveness of counsel. (Id. at p. 230.)
Generally, the Eighth Amendment prohibits only those sentences that are
grossly disproportionate to the crime. (Ewing v. California (2003) 538 U.S. 11, 23–24
(Ewing).) Similarly, the California Constitution is violated when 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, fn. omitted (Lynch).) Lengthy prison sentences imposed under a recidivist
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statute have long survived scrutiny under both Constitutions. (See, e.g., In re
Rosencrantz (1928) 205 Cal. 534, 539–540; People v. Weaver (1984) 161 Cal.App.3d
119, 125.)
We examine three factors to determine whether a sentence is proportionate to
the offense and the defendant's circumstances such that it does or does not constitute
cruel and unusual punishment: (1) the gravity of the offense and the harshness of the
penalty; (2) sentences imposed for other crimes in the same jurisdiction; and
(3) sentences imposed for the same crime in other jurisdictions. (Ewing, supra, 538
U.S. at p. 22; Lynch, supra, 8 Cal.3d at pp. 425–427 [comparable three-prong test].)
Here, Horton contends his punishment is unconstitutional as applied to him and has
thus limited his argument to the first factor identified in Lynch—the nature of the
offense and the offender.
In In re Coley (2012) 55 Cal.4th 524 (Coley), our high court recently addressed
whether a defendant convicted of failing to update his sex offender registration
received cruel and unusual punishment when sentenced to 25 years to life under the
Three Strikes law. (Id. at p. 530.) The Coley court recognized that the sentence
actually imposed under the Three Strikes law is frequently dependent upon the trial
court's exercise of discretion in determining whether to strike any of the serious or
violent prior convictions (id. at pp. 559–560) and that it is appropriate to rely upon the
trial court's reasons and findings in evaluating such a claim. (Id. at pp. 560–561.)
Significantly, our high court noted the trial court's finding that the defendant
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"deliberately failed to register as a sex offender even though he knew he had an
obligation to do so." (Id. at p. 561.)
Similarly here, Horton admitted that he intentionally failed to register.
Although he claimed that his intent was not to deceive or defy the police or the courts,
his willful action thwarted the purpose of the registration requirement, which is to aid
police surveillance of certain sex offenders whom the Legislature has deemed to pose
"a 'continuing threat to society' [citation] and require constant vigilance." (Wright v.
Superior Court (1997) 15 Cal.4th 521, 527.)
Turning to Horton's criminal history, he committed two extremely violent
sexual assaults that resulted in his five prior strike convictions. While these incidents
are remote, evidence in the record of Horton's current state of mind do not weigh in his
favor. In 2010, he was fired for using a company credit card to purchase pornography
and a company computer to send e-mails soliciting sex. Additionally, during his 2010
psychological evaluation, he was not truthful regarding his age when the offenses
occurred and blamed the offenses on substance abuse. The Attorney General's
recitation of the prior crimes, however, suggests substance abuse was not involved.
Although Horton implies that his physical condition is extremely poor, it did not
prevent him from soliciting sex and a letter written on his behalf showed he was active
as he spent "a great deal of time" golfing. Finally, in considering the harshness of the
penalty, we take into consideration that Horton is a repeat offender whom the
Legislature may punish more severely than it punishes a first-time offender. (Ewing,
supra, 538 U.S. at pp. 24–26.)
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On this record, Horton's decision to disregard the registration requirement "may
properly be viewed as an indicator of potentially significant future dangerousness."
(Coley, supra, 55 Cal.4th at p. 562.) We conclude, therefore, that while Horton's
sentence is harsh, it does not violate either the state or federal constitutional
prohibitions on cruel and unusual punishment.
III. Abstract of Judgment
A. Facts
At the sentencing hearing, the court ordered Horton to pay a $5,000 restitution
fine (§ 1202.4, subd. (b)), a $40 court security fee (§ 1465.8, subd. (a)(1)), a $30
criminal conviction assessment (Gov. Code, § 70373, subd. (a)) and booking fees in
the amount of $154 (Gov. Code, § 29550.1). The court also imposed a parole
revocation fine of $5,000 "suspended unless probation/parole revoked." (§ 1202.45.)
When asked by defense counsel whether the court was "[r]unning the fines concurrent
[or] staying the fines," the court responded, "I'll stay all fines. Yes." The court
minutes stated that "the court stay[ed] all fines/fees." The abstract of judgment,
however, reflected the imposition of all fines and fees, except that the $5,000 fine
under section 1202.45 was "suspended unless parole is revoked."
B. Analysis
Horton contends that the abstract of judgment does not reflect the stay on "all"
the fines and fees as ordered by the trial court. We disagree because the facilities
assessment fee and the court security fee are mandatory and the trial court had no
authority to stay those fees. (People v. Woods (2010) 191 Cal.App.4th 269, 272–273.)
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Similarly, the restitution fine cannot be stayed. (Ibid.) Also, the plain language of the
booking fee statute makes clear that this fee is mandatory and not subject to a
defendant's ability to pay. Accordingly, while the trial court erroneously ordered that
these fees be "stayed," the abstract of judgment correctly showed the imposition of
these fees. Finally, as reflected in the abstract of judgment, and conceded by the
Attorney General, the only fine properly stayed was the parole revocation fine unless
parole is revoked (§ 1202.45).
DISPOSITION
The judgment is affirmed.
MCINTYRE, J.
WE CONCUR:
MCDONALD, Acting P. J.
O'ROURKE, J.
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