Opinion
E033032.
11-5-2003
THE PEOPLE, Plaintiff and Respondent, v. THOMAS IRVIN BROWN III, Defendant and Appellant.
Nancy J. King, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Robert M. Foster and Pamela A. Ratner Sobeck, Supervising Deputy Attorneys General, for Plaintiff and Respondent.
FACTUAL AND PROCEDURAL BACKGROUND
When defendant left the El Tigre Market in San Bernardino on October 29, 2001, the store director and another employee stopped him. They asked if he had forgotten to pay for something and he responded, "Okay. You guys got me." He had four cans of baby formula, valued at $13.59 per can, hidden in his jacket.
An information charged defendant with petty theft with a prior theft conviction (Pen. Code, § 666) and alleged he had sustained two prior serious felony convictions. (Pen. Code, § 1170.12, subds. (a)-(d), § 667, subds. (b)-(i).) In bifurcated proceedings, a jury found he was guilty of the charge and the court found the allegations were true. The court imposed a 25-year-to-life prison term.
DISCUSSION
Defendant appeals, arguing the trial court unconstitutionally coerced the jury to return a unanimous verdict, failed to dismiss one of his strike convictions, and imposed an unconstitutional sentence. We affirm.
1. Jury Coercion.
After hearing less than an hour of testimony, the jurors retired to deliberate. After deliberating for about an hour, the jurors requested a reading of the store directors testimony. The jurors did not reach a verdict by the end of the day and did not deliberate the following day, which was a Friday. On the following Monday after the jurors advised that they were was unable to reach a verdict, the court called the jurors before it:
"THE COURT: Good morning, ladies and gentlemen.
"THE JURORS: Good morning.
"THE COURT: Mr. 20, I have your note here signed this date and signed by your number, and it states we believe we cannot decide the verdict in this case.
"Without indicating to me at this point, have you taken a ballot accounting of this?
"JUROR NO. 20: Yes.
"THE COURT: What were the numbers at your last ballot, without telling me which way?
"JUROR NO. 20: Nine to three.
"THE COURT: How many ballots have you taken on the issue?
"JUROR NO. 20: Four.
"THE COURT: Have those numbers changed during those four ballots?
"JUROR NO. 20: Yes.
"THE COURT: Has the ratio increased or lessened in the four ballots?
"JUROR NO. 20: Increased.
"THE COURT: Okay. Now, you have worked on this thing since the 13th, which was Thursday. We were out of session Friday, so you worked Thursday at least in the afternoon. And I assume youve been here since 9:00 oclock, which is a while, considering the short amount of evidence received.
"Mr. 20, in your own personal opinion, do you feel that this Court could do anything in the way of answering questions or assisting you in some fashion and that further deliberations would result in a verdict? Do you personally feel that it could?
"JUROR NO. 20: My own personal opinion? I think if you re-read the instructions — the jury instructions, and we re-read them this morning, especially pertaining to the facts of the case presented. I think that can help.
"THE COURT: You feel that if I re-read the jury instructions at least as [they] relate[] to the charge, theres a whole lot of preliminary. Theres a whole lot of others, but you want the ones related to the facts.
"JUROR NO. 20: The ones related to the facts. How we judge the facts in this courtroom.
"THE COURT: I see. Well, perhaps I should re-read the whole thing.
"JUROR NO. 20: Your Honor, that is my personal opinion.
"THE COURT: I realize that.
"Now, are there any of the others of you that share that opinion? If there is, would you raise your hand. I see no hands.
"Now, of the remaining 11 of you that sit up there, are there any of you that feel that there is anything this Court can do or anything else that could be done, further deliberations, questions, answers, instructions read, anything that could result in a verdict? Are there any of you that feel that it could? If there are, raise your hand. I want to see.
"THE JURORS: (Jurors comply.)
"THE COURT: How many of you feel that nothing could be done by this Court or further time be given for deliberations? Theres absolutely nothing that can be done to assist you in reaching a verdict? One, two, three, four, five, six, seven, eight, nine. Okay. I got it two that I guess dont know. Are there two of you undecided regarding whether a verdict could be reached?
"I dont get any response at all.
"All right. Well, Im not in any way attempting to force you to reach a verdict in the case, and I will not do so. But Im not going to avoid any possibility of assisting you in some fashion that could reach a verdict in this pattern. Im going to re-read at least those instructions that related to the evidence and the facts of the case. Theres nothing that deals directly with the facts in the case, but it deals with the charge and the law. And it deals with some of the ways you are to consider evidence. And then Im going to send you back in there to deliberate or attempt to deliberate a bit longer, because I certainly dont want to declare a mistrial unless its necessary. And I will not do so unless its absolutely necessary. I think you folks can recognize the importance of that."
The court then reread most of the instructions to the jury, with no change from the first reading. One of the instructions provided: "The People and the defendant are entitled to the individual opinion of each juror." The court concluded: "If you have an honest conviction based upon the evidence, then please dont change that conviction."
After deliberating for approximately a half hour, the jury requested a reread of the store directors testimony. About a half hour later, the jury announced it had reached a verdict.
Defendant argues the trial courts refusal to declare a mistrial despite the fact the majority of the jurors said there was no hope of breaking the deadlock was inherently coercive under the facts of this case. We disagree.
Penal Code section 1140 provides: "Except as provided by law, the jury cannot be discharged after the cause is submitted to them until they have agreed upon their verdict and rendered it in open court, unless by consent of both parties, entered upon the minutes, or unless, at the expiration of such time as the court may deem proper, it satisfactorily appears that there is no reasonable probability that the jury can agree."
"The determination whether there is reasonable probability of agreement rests in the discretion of the trial court. [Citations.] The court must exercise its power, however, without coercion of the jury, so as to avoid displacing the jurys independent judgment `in favor of considerations of compromise and expediency. [Citation.]" (People v. Breaux (1991) 1 Cal.4th 281, 319.) The question of coercion is necessarily dependent on the facts and circumstances of each case. (Ibid. )
In Breaux, the California Supreme Court rejected the assertion of coercion where the jurors deliberated for four days before announcing an impasse. Breaux emphasized that the jurors were asked to resume deliberations not once but twice and that the second followed a polling of the jurors, all of whom were negative on the prospects of a verdict. (People v. Breaux, supra, 1 Cal.4th 281, 319-320.) Thus, in the case before us, the fact that the majority of the jurors were negative on the prospects of a verdict before the trial court reinstructed them does not compel a finding of coercion.
Defendant complains the trial court asked the jurors to resume deliberations after it inquired into the numerical division of the jury. "There is always a potential for coercion once the trial judge has learned that a unanimous judgment of conviction is being hampered by a single holdout juror favoring acquittal. In such a case, the judges remarks to the deadlocked jury regarding the clarity of the evidence, the simplicity of the case, the necessity of reaching a unanimous verdict, or even the threat of being `locked up for the night might well produce a coerced verdict. [Citation.]" (People v. Sheldon (1989) 48 Cal.3d 935, 959-960, quoting People v. Carter (1968) 68 Cal.2d 810, 820.) The case before us, however, did not present a single holdout juror. The trial court did not make any statements that could be interpreted as exerting undue pressure on any juror and it neither indicated that a verdict had to be reached nor threatened to prolong the deliberations. It merely addressed a concern from jurors regarding a possibility that they were deadlocked. When the court asked whether there was anything it could do to assist them in reaching a verdict, only nine of them indicated nothing would help and the foreperson said a verdict might be possible if the court reinstructed. After reinstructing the jurors, the court stated it was not "in any way attempting to force [them] to reach a verdict in the case," but it did not want "to avoid any possibility of assisting [them] in some fashion." The court also reminded the jurors not to change their honest conviction if it was based on the evidence. Furthermore, as defendant acknowledges, "[t]he practice of inquiring into the jurys numerical division was expressly approved in People v. Carter, supra, 68 Cal.2d 810, and, despite a contrary rule of procedure in federal courts, has been expressly approved in People v. Rodriguez[ (1986)] 42 Cal.3d [730,] 776, footnote 14." (People v. Breaux, supra, 1 Cal.4th 281, 319, fn. omitted.)
Defendant argues that, because the trial was short and the issues were relatively simple, further deliberations could only be deemed intended to coerce the minority into joining the majoritys view of the case. We disagree. The jurors had deliberated a very short time, some of them had changed their minds during the several ballots, and the foreperson believed a reread of the instructions would be helpful. Thus, in our view, the trial court did not abuse its discretion by acting on the suggestion of the foreperson and then asking the jurors to deliberate further. (See People v. Thomas (1991) 231 Cal.App.3d 299, 302-303 [Verdict was not coerced where jury indicated it was deadlocked, but one juror indicated further instruction might be helpful.].)
Defendant also argues the fact that the jurors came back with a conviction in a short period of time after reinstruction indicates the verdict was due to coercion rather than to a reevaluation of the evidence. We are not persuaded because, before returning with the verdict, the jurors asked for a reread of the store directors testimony, which indicates they were evaluating the evidence.
Defendant has failed to demonstrate that the trial court coerced the jurors or abused the discretion vested in it by Penal Code section 1140 by requiring the jurors to continue deliberating after the court acted on the suggestion of the foreperson and reinstructed the jurors.
2. Dismissal of Strike Convictions.
Defendant argues the trial court abused its discretion by failing to properly consider the factors in People v. Superior Court (Romero) (1996) 13 Cal.4th 497 and People v. Williams (1998) 17 Cal.4th 148. We disagree.
Defendants motion requesting the dismissal of his prior strike convictions noted the trial courts discretionary powers under Penal Code section 1385 and as interpreted by the Supreme Court in People v. Superior Court (Romero ), supra, 13 Cal.4th 497 and People v. Williams, supra, 17 Cal.4th 148. The motion also identified the factors the court should consider in exercising its discretion. The prosecutors written opposition discussed the relevant factors and attached a copy of defendants criminal history. The court that denied the motion had presided over his jury trial, had reviewed his motion, the opposition, his probation report and the relevant cases. And, the courts statement, set out below, shows it carefully considered the relevant factors.
Denying the motion, the court stated defendants probation report was "very disturbing because [of his] history dating back to May of 1968, which starts with a burglary. And apparently [he] was given a probation with six months in jail. And there it goes on for the completion of that page and the next page and the third page and two-thirds of the fourth page. The last entry being in 1995, I guess, referring to his conviction concerning the charge in the federal prison or the federal court and his sentence on that matter.
"Unfortunately, [defendant] has a horrible criminal record. And theres very little to speak favorably toward [defendant] reforming at this stage in his life. He undoubtedly has been addicted to drugs of various kinds and perhaps heroin. And I have no doubt that that, in fact, is the source of his problems.
"[This crime] could be a felony burglary because its easily established that he intended to go into that market and take something, and that constitutes a burglary, which would be a felony.
"The suggestion that I impose some kind of sentence which would result in [defendant] being sentenced to or sent, at least committed to CRC, that would be an idle gesture with [defendants] criminal history. They would kick him back as soon as they got a look at it. And he probably would never enter the gate over there before he would be back in jail and back before the Court.
"He probably is a person who needs some kind of treatment, but Im not sure if hell get it at CRC, whether the kind of programs that they have available would be of much assistance to [defendant]. . . .
"But certainly since 1968, until this date, he has had ample opportunity to find programs and apparently [], if he has found them, has not completed them or theyve not been helpful to him. And at least he has not been successful in finding a solution for a drug [problem].
"Im not sure at this late stage in his life, except perhaps the aging process, will have much to do regarding his [problem] or his addiction to heroin.
"The next thing the Court has to consider is whether [defendant] fits within the scheme of the three strike[s] law. As we all know, the Court cannot simply reduce or strike a prior because it has sympathy for the defendant or because it feels that the sentence is too harsh.
"But if I could make a decision solely based upon the sympathy of — for [defendant], the decision might be different than it is going to be this morning. But I cant. I have to be objective. I have to be able to state some reasons why I would do that. "And I cant find any reasons based upon [defendants] extensive long-running criminal record which he has made for himself, the lack of any concrete support from any family members or friends out there who have deep concern for him, and I certainly feel sorry for him for that. Thats not his fault, perhaps, but theyre not there. At least theyre not here before the Court this morning. Theres no reference to them.
"Theres no firm employment plans before the Court. Theres nothing before the Court that indicates that if [defendant] were released from state prison within a short period of time that he would not be back before the court system, very shortly having committed some other, perhaps minor, crime, but each time he commits a minor crime, its going to increase the potential sentence that he faces.
"In reviewing the cases, which dealt with this subject Romero [and]Williams, I cannot find, as much as I might wish the contrary, that [defendant] does not fit within the scheme of the [L]egislatures and the publics passage of the [T]hree [S]trikes law. . . ."
On appeal, a trial courts section 1385 ruling regarding the dismissal of a prior strike conviction is reviewed under the deferential abuse of discretion standard. (People v. Williams, supra, 17 Cal.4th 148, 159; People v. Superior Court (Romero), supra, 13 Cal.4th 497, 504.) Under that standard a defendant who seeks reversal must demonstrate that the trial courts decision was irrational or arbitrary. It is not enough to show that reasonable people might disagree about the ruling. (People v. Myers (1999) 69 Cal.App.4th 305, 309-310.)
"[I]n ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law, on its own motion, `in furtherance of justice pursuant to Penal Code section 1385(a), 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 schemes 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 148, 161.)
Applying the deferential abuse of discretion standard of review, we observe the record reveals that the trial court was aware of and properly exercised its discretion. As previously stated, both defendants motion and the prosecutors opposition specifically laid out the factors to be considered. The trial courts statement demonstrates that it considered them and sums up the courts evaluation of the relevant factors. Furthermore, the record supports the trial courts finding that defendant is a proper subject for punishment under the "Three Strikes" law.
Defendants record began in 1968 when he was convicted of burglary (Pen. Code, § 459) and placed on probation. Later that same year, he was convicted of possessing drugs (Health & Saf. Code, § 11377, subd. (a)) and felony hit and run (Veh. Code, § 20002, subd. (a)). In 1972 he was convicted of battery (Pen. Code, § 242) and again granted probation. From December 1973 through 1977, he sustained three felony drunk driving convictions (Veh. Code, 23102, subd. (a)). In 1974 and 1977, he was convicted of assault and battery (Pen. Code, § 240, § 242). In 1977, he also was convicted of possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)). From 1979 through 1991, he sustained several convictions for receiving stolen property (Pen. Code, §§ 496, 496.1) and first degree burglary (Pen. Code, § 459) and was sentenced to state prison. In 1995 he was convicted in federal court of importation and possession of a controlled substance and unlawful use of communications and sentenced to federal prison for four years.
Defendants prospects look rather grim. He is a 55-year-old man who did not finish high school. He has been in and out of prison from 1979 until 2000 and he committed this offense in October 2001. He told his probation officer he was "strung out" on heroin when he took the baby formula. Heroin is his drug of choice and he began using it at 18 years of age. His probation report states he was a machine operator, but he is disabled and he said he took the baby formula to sell it.
As the foregoing discloses, the nature and circumstances of defendants present felony and his prior serious felony convictions as well as the particulars of his background, character and prospects support the trial courts decision to deny his motion. Thus, the decision was neither irrational nor arbitrary.
3. Cruel and Unusual Punishment.
Defendant contends his 25-year-to-life sentence constitutes cruel and/or unusual punishment under the state and federal Constitutions. We reject defendants arguments because his three strikes sentence was not calculated merely on the basis of his current offense, but on the basis of his years of recidivist behavior. As this court observed in People v. Romero (2002) 99 Cal.App.4th 1418 "`[S]ociety is warranted in imposing increasingly severe penalties on those who repeatedly commit felonies. If increased penalties do not deter the repeat offender, then society is warranted in segregating that person for an extended period of time. [Citation.] [Citations.]" (Id. at p. 1432.) As the preceding portion of this opinion reveals, neither increased penalties nor age has deterred defendant from committing more crimes. Based on his record, there is little hope that he will reform. Accordingly, we conclude that defendants sentence is not grossly disproportionate to his current crime or his recidivism. Therefore, his sentence does not violate our state Constitution.
Defendant fares no better under the federal Constitution. A majority of our United States Supreme Court recently held that the federal Constitution contains a narrow proportionality principle that prohibits sentences that are grossly disproportionate. (Ewing v. California (2003) 538 U. S. 11 [123 S.Ct. 1179, 155 L.Ed.2d 108].) In Ewing, the Court held the Eighth Amendment did not prohibit a Three Strikes law sentence of 25 years to life for a defendant who shoplifted golf clubs worth about $1,200 since he had been convicted of three residential burglaries and one first degree robbery seven years earlier. (Ibid.) Comparing defendants current crimes and his criminal history with those of defendant Ewing, we cannot say that his sentence is grossly disproportionate to his criminal culpability so as to constitute cruel and unusual punishment under the United States Constitution.
In view of the foregoing, we conclude defendant has failed to demonstrate that his prison term constitutes cruel and unusual punishment.
DISPOSITION
The judgment is affirmed.
We concur: McKINSTER J., RICHLI J.