IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT
August 7, 2002
THE PEOPLE, PLAINTIFF AND RESPONDENT,
DARION JAMES BRANCH, DEFENDANT AND APPELLANT.
(Santa Clara County Sup. Ct. No. B9945646)
The opinion of the court was delivered by: Elia, J.
NOT TO BE PUBLISHED
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
After a jury trial, defendant Darion Branch was convicted of five counts of second degree robbery, one count of attempted second degree robbery, and one count of attempting to dissuade a witness or victim. On appeal, he contends that the trial court improperly instructed the jury with CALJIC No. 17.41.1. He also asserts sentencing error, arguing that the court improperly imposed a consecutive sentence and failed to stay the term for the attempted dissuading of one of the robbery victims. Finally, he contends that the court should have dismissed all but one of his "strike" priors, and that the resulting sentence of 175 years to life constituted cruel and/or unusual punishment. We will affirm the judgment.
Because the issues raised in this appeal are primarily addressed to sentencing, we will only briefly summarize the record of the trial testimony. All of the crimes took place during the first week of August 1999. Four of the robberies and the attempted robbery took place outside a bank or credit union during or just after the completion of the victims' transactions. The robbery charged in count 5 took place outside a hotel.
The victim of counts 3 and 4 was Odel Malan, who was robbed at a Mountain View branch of the Technology Credit Union on August 2, 1999. After making a deposit inside, Malan returned to her car. She was about to leave when she saw defendant next to her car door. He asked for money to buy gas, and she gave him a dollar and some loose change. He asked if she had any more money, but she said she did not. He told her to give him her purse. He had his hand in his right pocket, apparently pointing either a gun or his finger toward her. Malan asked him not to hurt her, and he promised he would not. Defendant remained beside her door for several minutes. He decided, however, that the items in her purse were not "worth it."
At one point Malan saw a car being parked nearby, and she turned to get the driver's attention. But defendant told her not to scream or call for help. Malan turned back to defendant, who warned her not to call the police because he had her address and other information in the purse.
1 . CALJIC No. 17.41.1
Defendant contends that the court erred by instructing the jury with CALJIC No. 17.41.1. *fn1 In his view, the instruction infringed his constitutional right to secret jury deliberations, violated his right to a unanimous verdict from an impartial jury, chilled the jurors' uninhibited expression, and interfered with the jurors' power of nullification. The error, he adds, was reversible per se. Because his trial attorney did not object, defendant further argues he was deprived of effective assistance of counsel. These last two assertions are moot because no instructional error occurred.
The California Supreme Court has recently held that CALJIC No. 17.41.1 "does not infringe upon defendant's federal or state constitutional right to trial by jury or his state constitutional right to a unanimous verdict." *fn2 (People v. Engelman (July 18, 2002, S086462) ___ Cal.4th ___, ___ (written opn., p. 1] (hereafter Engelman).) The court was not convinced that, "merely because CALJIC No. 17.41.1 might induce a juror who believes there has been juror misconduct to reveal the content of deliberations unnecessarily (or threaten to do so), the giving of the instruction constitutes a violation of the constitutional right to trial by jury or otherwise constitutes error under state law." (Id. at [p. 7].)
The court explained: "[A]lthough the secrecy of deliberations is an important element of our jury system, defendant has not provided any authority, nor have we found any, suggesting that the federal constitutional right to trial by jury (or parallel provisions of the California Constitution, or other state law) requires absolute and impenetrable secrecy for jury deliberations in the face of an allegation of juror misconduct, or that the constitutional right constitutes an absolute bar to jury instructions that might induce jurors to reveal some element of their deliberations." (Engelman, supra, ___ Cal.4th at [pp. 6-7].)
The court in Engelman found that "[t]he instructions as a whole fully informed the jury of its duty to reach a unanimous verdict based upon the independent and impartial decision of each juror. (CALJIC No. 17.40 ['The People and the defendant are entitled to the individual opinion of each juror. [¶] Each of you must decide the case for yourself . . . .']; CALJIC No. 17.50 [instructing that in order to reach a verdict, 'all twelve jurors must agree to the decision'].)" (Engelman, supra, ___ Cal.4th at [pp. 7-8].) The court further noted that no language in CALJIC No. 17.41.1 suggests that jurors who find themselves in the minority during deliberations "should join the majority without reaching an independent judgment." (Id. at [p. 8].)
As to the argument that CALJIC No. 17.41.1 infringes a defendant's constitutional right to jury nullification, it is without merit in light of People v. Williams (2001) 25 Cal.4th 441, 449-463. The court in Williams declared: "Jury nullification is contrary to our ideal of equal justice for all and permits both the prosecution's case and the defendant's fate to depend upon the whims of a particular jury, rather than upon the equal application of settled rules of law." (Id. at p. 463.) The court explained that although the possibility of jury nullification exists because of certain procedural aspects of our criminal justice system, a defendant does not have a constitutional right to that possibility. (Id. at pp. 449-451.) And in Engelman, the court again confirmed that, while the jury as a practical matter may have the power to engage in nullification, it has no legal right to do so. (People v. Engelman, supra, __ Cal.4th at p. __.)
We also reject defendant's assertion that he has standing to assert the jurors' right to freedom of speech. He has failed to demonstrate the third-party standing necessary to raise the constitutional challenge. *fn3 (Cf. Powers v. Ohio (1991) 499 U.S. 400; cf. also Campbell v. Louisiana (1998) 523 U.S. 392.) We do not discern a commonality of interest between a criminal defendant and jurors with regard to unrestricted "free speech" during jury deliberations.
Even if he does have standing, his argument nonetheless fails. Jurors do not have the right, as a matter of freedom of speech or otherwise, to inject outside influences into their deliberations. (See Sheppard v. Maxwell (1966) 384 U.S. 333, 351.) Jurors likewise do not have the right to disregard the law. (See People v. Cline (1998) 60 Cal.App.4th 1327, 1335.) Whatever right to "free speech" that trial jurors may have during deliberations is circumscribed by their oath. *fn4 (Code Civ. Proc., § 232, subd. (b).)
2. Consecutive Sentencing
A defendant with one or more prior "strike" felonies within the meaning of the "three strikes" law is subject to consecutive sentencing as follows: "If there is a current conviction for more than one felony count not committed on the same occasion, and not arising from the same set of operative facts, the court shall sentence the defendant consecutively on each count . . . ." (Pen. Code, § 667, subd. (c)(6).) *fn5 This subdivision "clearly provides that consecutive sentencing is mandatory for any current felony convictions 'not committed on the same occasion, and not arising from the same set of operative facts.' " (People v. Hendrix (1997) 16 Cal.4th 508, 512.) By the same token, "if two current felonies either were committed on the same occasion or do arise from the same set of operative facts, the three strikes law does not mandate consecutive sentencing; the trial court retains discretion to sentence either concurrently or consecutively." (People v. Danowski (1999) 74 Cal.App.4th 815, 821; People v. Coelho (2001) 89 Cal.App.4th 861, 865; People v. Hendrix, supra, 16 Cal.4th at p. 513.) *fn6
Defendant contends that the court erred in imposing consecutive sentences for counts three and four. The taking of Malan's purse, he notes, occurred at the same location and approximately the same time as the threat not to call the police, and the two counts involved the same victim. Looking to the factors listed in California Rules of Court, rule 4.425, he argues that concurrent sentencing was warranted. The People respond that consecutive sentences were mandatory.
We agree with defendant that the crimes involved here arose on the same occasion. "[I]f the offenses occurred 'on the same occasion,' it does not matter whether there is evidence that they did or did not arise from the same set of operative facts.' Under these circumstances, the court retains discretion under ordinary sentencing principles to decide whether to impose consecutive or concurrent terms." (People v. Hall (1998) 67 Cal.App.4th 128, 139; accord, People v. Coelho, supra, 89 Cal.App.4th at p. 884.) Furthermore, the trial court implicitly found the facts necessary to exercise its discretion, and the People did not challenge its assumption that concurrent sentencing was an option.
Nevertheless, we find no abuse of discretion in the court's decision to order the sentences to run consecutively. Former rule 425 (now rule 4.425) permitted the court to consider whether the "crimes and their objectives were predominantly independent of each other." The court's comments at the hearing reflect its finding that counts three and four were independent of each other. As explained in the next section, the record contains substantial evidence to support that conclusion.
3. Section 654
Section 654, subdivision (a), states in part: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." This statute has been interpreted to preclude multiple punishment for a single act or omission or for an indivisible course of conduct. (People v. Deloza, supra, 18 Cal.4th at p. 591.)
"[T]he purpose of section 654 'is to insure that a defendant's punishment will be commensurate with his culpability.' [Citation.] . . . . A person who commits separate, factually distinct, crimes, even with only one ultimate intent and objective, is more culpable than the person who commits only one crime in pursuit of the same intent and objective." (People v. Latimer (1993) 5 Cal.4th 1203, 1211.) On the other hand, the statute also aims to "prevent multiple punishment for a single act or omission, even though that act or omission violates more than one statute and thus constitutes more than one crime." (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312.)
Whether a course of conduct is divisible depends on the "intent and objective" of the actor (Neal v. State of California (1960) 55 Cal.2d 11, 19 (Neal)), not the temporal proximity of the offenses. (In re Hayes (1969) 70 Cal.2d 604, 609.) If all of the offenses were incident to, or the means of accomplishing, one objective, then the defendant may be punished for only one offense. (Neal, supra, 55 Cal.2d at p. 19.) "If, however, the defendant had multiple or simultaneous objectives, independent of and not merely incidental to each other, the defendant may be punished for each violation committed in pursuit of each objective even though the violations share common acts or were parts of an otherwise indivisible course of conduct. [Citation.]" (People v. Cleveland (2001) 87 Cal.App.4th 263, 267-268.)
Trial courts are given broad latitude in determining whether section 654 is factually applicable to a given series of offenses. An appellate court must uphold a trial court if its findings on this question are supported by any substantial evidence. (People v. Ratcliff (1990) 223 Cal.App.3d 1401, 1408; People v. Coleman (1989) 48 Cal.3d 112, 162.) "We must 'view the evidence in a light most favorable to the respondent and presume in support of the [sentencing] order the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]' [Citation.]" (People v. McGuire (1993) 14 Cal.App.4th 687, 698.)
Defendant contends that section 654 precluded imposition of punishment for both the robbery of Malan (count 3) and the "attempted dissuading" of Malan (count 4). In his view, the "vague threat not to call the police was merely incidental to accomplishing the act of taking her purse and escaping from the scene unmolested by the police. There was no separate, independent intent and objective for each count."
If we were comparing the robbery with defendant's instruction not to alert the person in the nearby car, we would agree that multiple punishment would be improper, since Malan's calling for help might have impeded his completion of the robbery. But the threat under examination was defendant's warning not to report the crime to the police. The apparent purpose of this threat was not to allow defendant to complete the taking and escape, but to remain unapprehended: Defendant essentially warned that if Malan reported the crime after he released her, defendant would retaliate, since he had her address. On these facts the trial court was permitted to find separate intents and objectives in the robbery and attempted dissuading of the victim.
4. Dismissal of "Strike" Priors
The jury found that defendant had suffered eight prior "strike" convictions -- six robberies and two attempted robberies-- along with two additional non-strike prior convictions of robbery. (§ 667, subd. (b)-(i);§ 1170.12; § 667, subd. (a); § 1197.) Before the sentencing hearing defendant asked the trial court to dismiss all but one of the "strikes" in furtherance of justice, pursuant to section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497.) In support of the request, defendant asserted that none of the current offenses had involved the use of a gun or resulted in injury, and he attributed his entire criminal history to his use of "crack" cocaine. Defendant also recounted the stressful circumstances of his childhood and adolescence and described the burdens presented by his current work and personal life.
The court denied defendant's Romero request for the following reasons: "The defendant was on parole and out of custody less than one month before he got involved in this current case. His prior history consists of nine prior felonies. Convictions for fraudulent use of an access card, attempted robbery, and attempted robbery and robberies. He has 11 misdemeanor convictions for crimes such as battery, non-sufficient funds checks, failure to pay, obstructing/resisting a police officer and failure to appear. I don't feel that the defendant in light of his current and past crimes and the particulars of his background character and prospects is outside the spirit of the three strikes law. I do not think it would be in the furtherance of justice to strike any priors."
Defendant contends that the trial court should have dismissed all but one of his prior "strike" convictions, and that its failure to do so was an abuse of discretion. In People v. Superior Court (Romero), supra, 13 Cal.4th at page 531, the Supreme Court provided guidance for the exercise of a sentencing court's discretion under section 1385 to dismiss a strike allegation. A court abuses its discretion if it strikes a sentencing allegation merely for judicial convenience, to relieve court congestion, or because a defendant pleads guilty. An abuse of discretion may also occur if the dismissal is " 'guided solely by a personal antipathy for the effect that the three strikes law would have on [a] defendant,' while ignoring 'defendant's background,' 'the nature of his present offenses,' and other 'individualized considerations.' " (Ibid.)
In People v. Williams (1998) 17 Cal.4th 148, the court elaborated on these guidelines. In deciding whether to strike a serious felony allegation, or in reviewing such a ruling, "the court in question 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 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." (Id. at p. 161.)
"The Supreme Court has thus made clear that a decision to strike a prior is to be an individualized one based on the particular aspects of the current offenses for which the defendant has been convicted and on the defendant's own history and personal circumstances. This approach allows the court to perform its obligation to tailor a given sentence to suit the individual defendant. But the court must also be mindful of the sentencing scheme within which it exercises its authority. In deciding to strike a prior, a sentencing court is concluding that an exception to the scheme should be made because, for articulable reasons which can withstand scrutiny for abuse, this defendant should be treated as though he actually fell outside the Three Strikes scheme." (People v. McGlothin (1998) 67 Cal.App.4th 468, 474.)
On appeal, this court's review is "deferential . . . [b]ut it is not empty. Although variously phrased in various decisions [citation], [this standard] asks in substance whether the ruling in question 'falls outside the bounds of reason' under the applicable law and the relevant facts [citations]." (People v. Williams, supra, 17 Cal.4th at p. 162; People v. Garcia (1999) 20 Cal.4th 490, 503.) To establish an abuse of discretion, defendant has the burden " 'to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.' [Citation.] Concomitantly, '[a] decision will not be reversed merely because reasonable people might disagree. "An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.". . . ' " (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.)
We find no abuse of discretion in this case. As the court observed, defendant has an extensive criminal history, which includes a series of ATM robberies. In this case, not even a month after his release on parole, he inflicted force or fear on six victims, most of them at ATMs, in the course of a single week. The court did not err in finding defendant to be within the spirit of the Three Strikes law.
Defendant's assertion that the court improperly ignored the fact of his cocaine addiction is unavailing. "As a policy matter, when a defendant has a drug addiction or substance abuse problem, where the defendant has failed to deal with the problem despite repeated opportunities, where the defendant shows little or no motivation to change his life style, and where the substance abuse problem is a substantial factor in the commission of crimes, the need to protect the public from further crimes by that individual suggests that a longer sentence should be imposed, not a shorter sentence." (People v. Reyes (1987) 195 Cal.App.3d 957, 963.) Defendant's failure to get his substance abuse problem under control despite past criminal sanctions thus weighs against him for the purposes of determining whether to dismiss his prior strike. (See, e.g., People v. Williams, supra, 17 Cal.4th at p. 163; People v. Humphrey (1997) 58 Cal.App.4th 809, 812.) No abuse of discretion appears on this record.
5. Cruel and/or Unusual Punishment
The consecutive sentences for defendant's seven current felonies amounted to a total prison term of 75 years to life. Defendant contends that this amounts to cruel and/or unusual punishment in violation of the Eighth Amendment to the United States Constitution and article I, section 17, of the California Constitution. *fn7 He points out that no one was injured or killed in this case, yet he will be incarcerated for the rest of his life.
A punishment is excessive under the Eighth Amendment if it involves the "unnecessary and wanton infliction of pain" or if it is "grossly out of proportion to the severity of the crime." (Gregg v. Georgia (1976) 428 U.S. 153, 173.) A punishment may violate article I, section 17 of the California Constitution if 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, fn. omitted.)
In determining whether a particular punishment is cruel and/or unusual, courts examine the nature of the particular offense and offender, the penalty imposed in the same jurisdiction for other offenses, and the punishment imposed in other jurisdictions for the same offense. (Solem v. Helm (1983) 463 U.S. 277, 290-291; In re Lynch, supra, 8 Cal.3d at pp. 425-427.)
We have reviewed defendant's criminal history and his sentence comparatively under intra- and inter-jurisdictional analyses. (See, e.g., People v. Martinez (1999) 71 Cal.App.4th 1502.) Viewed in light of all relevant considerations, we do not find that it is so disproportionate to his current offense that it shocks the conscience or offends fundamental notions of human dignity. (See People v. Dillon (1983) 34 Cal.3d 441, 477-478; In re Lynch, supra, 8 Cal.3d at pp. 423-424.) Defendant's seven current offenses are all classified as serious or violent under the three strikes law, as are many of his past convictions. (§1192.7, subd. (c); § 667.5, subd. (c).) In 1991, he committed five robberies and two attempted robberies. After his release on parole, he committed another robbery. While defendant again blames his addiction to cocaine, we have previously observed that "drug addiction is not necessarily regarded as a mitigating factor when a criminal defendant has a long-term problem and seems unwilling to pursue treatment." (People v. Martinez, supra, 71 Cal.App.4th 1502, 1511.) Defendant failed to refrain from cocaine use even after completing a rehabilitation program.
In short, defendant's extensive criminal history demonstrates that he poses a grave danger to society. Defendant has repeatedly demonstrated that he is resistant to punishment and will not conform his conduct to the law notwithstanding the consequences. He has not been affected by his previous periods of incarceration. Defendant is the type of person who must be segregated from society in order to protect the community from his disregard for the rights of others.
In comparing the punishment for defendant's offenses with those of other jurisdictions, we acknowledge that California's Three Strikes scheme is among the harshest in the nation. However, that does not in itself establish that it is cruel and unusual punishment. Nothing in the law requires California "to march in lockstep with other states in fashioning a penal code." (People v. Martinez, supra, 71 Cal.App.4th at p. 1516.) *fn8 Accordingly, we conclude that the punishment imposed in the instant case does not violate the constitutional proscription against cruel and unusual punishment.
The judgment is affirmed.
Premo, Acting P. J.