Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kings County. Ct. No. 09CM7238, Timothy S. Buckley, Judge. (Retired Associate Justice of the Court of Appeal, assigned by the Chief Justice pursuant to article VI, § 6 of the Cal. Const.)
Barbara Michel, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and J. Robert Jibson, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Kane, J.
Defendant Mark Dixon was convicted of battery by a prisoner against a nonconfined person in violation of Penal Code section 4501.5. Because of defendant’s several prior felony “strikes, ” he was sentenced to 25 years to life. Defendant appeals on grounds of insufficient evidence, instructional error, and cruel and unusual punishment. We affirm the judgment.
Unless otherwise indicated, all further statutory references are to the Penal Code.
FACTS AND PROCEDURAL HISTORY
On October 15, 2008, Correctional Officer Richard Tait (Officer Tait) was employed at the California State Prison at Corcoran and was assigned to the secured housing unit in the prison known as 4A1 Right. Officer Tait and his partner, Correctional Officer D. Zavala (Officer Zavala), were picking up food trays from outside the prisoners’ cells after breakfast that day. A certain procedure was followed to ensure the officers’ safety as they carried out this task. Specifically, one officer would unlock and open a food port on the cell door, thereby creating an opening with a ledge or shelf upon which the prisoner was supposed to place his food tray and then back away from the cell door. The prisoner was expected to position the tray so that it extended outside the food port, which would enable the second officer to safely retrieve the tray without having to reach into the cell. After retrieving the tray, the food port was secured and the officers would proceed to the next cell. On the date in question, Officer Zavala was opening the food ports and Officer Tait was retrieving the trays.
When they reached defendant’s cell, defendant refused to put his tray on the outside part of the ledge so that it would extend outside of the food port opening as required. Officer Tait told defendant to push the tray out further, and defendant did so. However, when Officer Tait took hold of the tray, defendant suddenly lunged, grabbed the tray back, and then quickly threw the tray through the food port. The thrown food tray struck Officer Tait on his hands and forearms. Officer Tait instinctively stepped back but bumped into the food tray cart, which was right behind him. When Officer Tait attempted to secure the food port, defendant squatted down and spit at the officer through the opening, and also kicked and swung a towel into the food port. Officer Tait responded with pepper spray into the food port to get defendant away from it, then secured the port.
The Kings County District Attorney filed an information charging defendant with two felony counts: (1) battery on a nonconfined person by a prisoner (§ 4501.5), and (2) battery by “gassing” (placing or throwing bodily fluids or excrement) while confined in a state prison (§ 4501.1, subd. (a)). It was further alleged that appellant had suffered four prior serious or violent felony convictions in 1980 within the meaning of sections 667, subdivisions (b) through (i) and 1170.12, subdivisions (a) through (d). On October 1, 2009, the jury found defendant guilty of count 1, but not guilty of count 2.
At the sentencing hearing, the trial court denied defendant’s motion to strike the prior felony strikes and sentenced defendant to 25 years to life. Defendant timely filed the instant appeal.
DISCUSSION
I. The Evidence Was Sufficient to Support Defendant’s Battery Conviction
The jury found defendant guilty of violating section 4501.5, which states: “Every person confined in a state prison of this state who commits a battery upon the person of any individual who is not himself a person confined therein shall be guilty of a felony.…” Defendant contends there was insufficient evidence that he intended to use force or violence upon the person of another. We disagree.
Where a challenge is made to the sufficiency of the evidence, we review the whole record in the light most favorable to the judgment to determine whether it discloses any substantial evidence such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578.) All conflicts in the evidence are resolved in favor of the judgment and all reasonable inferences are drawn in its favor. (People v. Neely (2009) 176 Cal.App.4th 787, 793.) “Reversal … is unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’ [Citation.]” (People v. Bolin (1998) 18 Cal.4th 297, 331.)
Since defendant claims there was insufficient evidence of his intent to apply unlawful force or violence upon the person of another, we briefly review the intent element of this crime. The crime of battery is the willful and unlawful use of force or violence upon the person of another. (§ 242.) Because battery is a general intent crime (People v. Lara (1996) 44 Cal.App.4th 102, 107), the only required mental state is the intent to commit the proscribed act. (People v. Colantuono (1994) 7 Cal.4th 206, 217; People v. Davis (1995) 10 Cal.4th 463, 518-519, fn. 15.) Thus, defendant must only “actually intend to commit a ‘willful and unlawful use of force or violence upon the person of another.’ [Citations.] In this context, the term ‘willful’ means ‘simply a purpose or willingness to commit the act ….’ [Citation.]” (People v. Lara, supra, at p. 107.)
As with the crime of assault, a defendant’s general intent may be determined objectively. All that must be shown is that the defendant committed an intentional act and had actual knowledge of facts sufficient to establish that the act by its nature would probably and directly result in the application of physical force (i.e., result in a battery) against another. (People v. Williams (2001) 26 Cal.4th 779, 790 [assault context]; People v. Hayes (2006) 142 Cal.App.4th 175, 180 [battery]; see also People v. Colantuono, supra, 7 Cal.4th at p. 217 [“the question of intent … is determined by the character of the defendant’s willful conduct considered in conjunction with its direct and probable consequences [and i]f one commits an act that by its nature will likely result in physical force on another, the particular intention of committing a battery is thereby subsumed”].) A subjective intent to cause injury or awareness of the risk of injury need not be shown. (People v. Hayes, supra, at p. 180.)
Here, contrary to defendant’s contention, there was ample evidence that he had the requisite intent to commit the act of applying unlawful force or violence upon the person of Officer Tait. The testimony at trial of Officers Tait and Zavala clearly and overwhelmingly established that while Officer Tait was standing at the food port outside of defendant’s cell door, in the process of retrieving defendant’s food tray, defendant lunged and grabbed the tray out of Officer Tait’s grasp and quickly threw the tray back through the food port. No more than this was needed to allow the jury to reasonably infer that defendant intended to commit an act that would by its nature result in the application of physical force upon the person of Officer Tait, which is exactly what happened.
II. The Jury Was Properly Instructed on Elements of Battery
Defendant contends that the jury was not given adequate instruction with respect to the mental state required for the crime of battery. Defendant is again mistaken.
We review de novo whether a jury instruction correctly states the law. (People v. Posey (2004) 32 Cal.4th 193, 218.) Review of the adequacy of instructions is based on whether the trial court fully and fairly instructed on the applicable law. (People v. Riley (2010) 185 Cal.App.4th 754, 767.) In determining whether error has been committed in giving or not giving jury instructions, we must consider the instructions as a whole and assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions that are given. (Ibid.) Instructions should be interpreted, if possible, so as to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation. (Ibid.)
Generally, a party may not complain on appeal that an instruction correct in law was too general or incomplete unless that party has requested appropriate clarifying or amplifying language. (People v. Catlin (2001) 26 Cal.4th 81, 149.) However, a trial court has a sua sponte duty to instruct on all of the elements of a charged offense. (People v. Cummings (1993) 4 Cal.4th 1233, 1311.) A failure to instruct on all of the elements of an offense is not reversible per se, but is subject to harmless error analysis under Chapman v. California (1967) 386 U.S. 18, 24, meaning that the conviction is upheld if it appears beyond a reasonable doubt that the error did not contribute to the verdict. (People v. Flood (1998) 18 Cal.4th 470, 475, 502-503; People v. Magee (2003) 107 Cal.App.4th 188, 194.)
Here, the trial court adequately instructed the jury on the required intent for the crime of battery. The jury was told that there must be “proof of the union or joint operation of act and wrongful intent, ” and that “[f]or you to find a person guilty of the crime, in this case a battery on a correctional officer …, that person must not only commit the prohibited act, but must do so with wrongful intent. A person acts with wrongful intent when he or she intentionally does a prohibited act; however, it is not required that he or she intend to break the law. The act required is explained in the instruction for that crime.…” With respect to count 1, the trial court gave the following instruction:
“The defendant is charged in Count 1, striking with a tray, with battery on someone who is not a prisoner in violation of Penal Code Section 4501.5. To prove that the defendant is guilty of this crime, the People must prove that:
“1) The defendant willfully touched a correctional officer in a harmful or offensive manner.
“2) When he acted, the defendant was serving a sentence in a California State Prison. And,
“3) Officer Tait was not serving a sentence in state prison. And,
“4) The defendant did not act in self-defense.
“Someone commits an act willfully when he or she does it willingly or on purpose. It is [not] required that he or she intends to break the law, hurt someone else, or gain any advantage.”
The omission of the word “not” was an apparent typographical error in the transcript. In any event, the written copy of the instructions given to the jury included the word “not.”
We conclude that the above instructions clearly and adequately summarized the essential law on the intent requirement for battery. As we explained above, battery is a general intent crime (People v. Lara, supra, 44 Cal.App.4th at p. 107), and thus defendant must only intentionally commit the proscribed act. (People v. Colantuono, supra, 7 Cal.4th at p. 217; People v. Davis, supra, 10 Cal.4th at pp. 518-519, fn. 15.) That is, defendant must only “actually intend to commit a ‘willful and unlawful use of force or violence upon the person of another.’ [Citations.] In this context, the term ‘willful’ means ‘simply a purpose or willingness to commit the act ….’ [Citation.]” (People v. Lara, supra, at p. 107.) Contrary to defendant’s argument, the jury would have reasonably understood from the above instructions that defendant had to willfully or intentionally commit the prohibited act-namely, the application of physical force against the person of another (i.e., Officer Tait). That intent was plainly manifested by defendant’s act of throwing the tray through the food port. There was no instructional error.
Even if such error occurred, it was harmless because on the overwhelming evidence that defendant threw the tray at Officer Tait, it appears beyond a reasonable doubt that the error did not contribute to the verdict. (People v. Flood, supra, 18 Cal.4th at pp. 475, 502-503; People v. Magee, supra, 107 Cal.App.4th at p. 194.)
III. Appellant’s Sentence Is Not Cruel and Unusual Punishment
Defendant admitted the truth of the allegations in the information that he suffered four prior convictions for serious or violent felonies. After the trial court heard and denied defendant’s motion to strike the prior felony “strikes, ” defendant was sentenced to 25 years to life under the “Three Strikes” law. Defendant contends his sentence constitutes cruel and/or unusual punishment within the meaning of the state and federal constitutions. (U.S. Const., 8th Amend.; Cal. Const., art. I, § 17.) We disagree.
Sections 667, subdivisions (b) through (i), 1170.12, subdivisions (a) through (d).
Under the California constitutional standard, a prison sentence may constitute cruel and unusual punishment 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 considering such a claim, we examine the nature of the offense and the offender, with particular regard to the degree of danger both present to society. (People v. Dillon (1983) 34 Cal.3d 441, 479.) In assessing the nature of the offense, the court considers the totality of the circumstances surrounding the commission of the crime, including such factors as its motive, the way it was committed, the extent of the defendant’s involvement, and the consequences of his acts. (Ibid.) In analyzing the nature of the offender, a court should consider “the defendant’s individual culpability as shown by such factors as his age, prior criminality, personal characteristics, and state of mind.” (Ibid.)
Defendant argues that his sentence of 25 years to life is grossly disproportionate to the crime of battery on a prison guard. He claims it was a relatively minor incident with a food tray and the guard sustained no injury. Also, defendant asks this court to consider his present age (48 years old) and that most of the prior serious or violent felonies occurred in 1980 on the same date.
The People counter that it is not merely the current crime that has earned defendant’s sentence under the Three Strikes law, but his extensive criminal history and recidivism, including repeatedly engaging in violent or assaultive behavior. We agree. The probation report reflects that defendant was previously imprisoned by reason of the serious and violent felonies that he committed in 1980, which included forcible rape, assault to commit rape, sodomy, robbery and burglary. As the trial court noted, these crimes were “about as serious as you can go for a [nonhomicidal] situation.…” Defendant has continued since that time to commit violent crimes of aggression. He was convicted in 1987 of assault by a prisoner and was given an additional six-year sentence on top of the 10-year term he received in 1980. Defendant violated parole and in 2000 was convicted of two more felonies involving violence, including attempted forcible sodomy against a child under age 14 and resisting an officer, for which he received a sentence of three years eight months. In 2005, he was convicted of battery by a prisoner on a nonconfined person in violation of section 4501.5, for which he received an eight-year term. The present offense fits into defendant’s recidivist pattern of aggressive criminal behavior.
The first four of these crimes are the prior strikes admitted by defendant in the present case.
In reviewing the proportionality of the punishment, it is appropriate to give considerable weight to the fact that defendant is “a frequent repeat offender who seemingly has not learned from past incarceration.” (People v. Martinez (1999) 71 Cal.App.4th 1502, 1510-1511 (Martinez).) In Martinez, a defendant was convicted of possession of methamphetamine, and the court upheld the life sentence imposed under the Three Strikes law based on his recidivism. (Martinez, supra, at pp. 1510-1511.) “Recidivism in the commission of multiple felonies poses a manifest danger to society, justifying the imposition of longer sentences for subsequent offenses. [Citations.]” (People v. Stone (1999) 75 Cal.App.4th 707, 715 [sentence of 25 years to life for drug conviction not cruel and unusual punishment given the defendant’s recidivism].) Where a defendant is being punished not merely for the current offense, but also because of his recidivism, our courts have found that sentences such as the one in the present case did not constitute cruel and unusual punishment. (See, e.g., People v. Romero (2002) 99 Cal.App.4th 1418, 1432 [25 years to life for current offense of petty theft, where priors included lewd acts with a child and battery on a police officer]; People v. Meeks (2004) 123 Cal.App.4th 695, 707-710 [25 years to life for failure to register as sex offender, where extensive record of recidivism involving serious felonies]; People v. Goodwin (1997) 59 Cal.App.4th 1084, 1093-1094 [25 years to life for commercial burglary, where the defendant had prior residential burglary and theft convictions]; People v. Ayon (1996) 46 Cal.App.4th 385, 398-400, disapproved on other grounds in People v. Deloza (1998) 18 Cal.4th 585, 600, fn. 10 [indeterminate sentence of 240 years to life for seven counts of armed robbery, where the defendant had prior strikes that included four residential burglaries].)
As we summarized in People v. Cooper (1996) 43 Cal.App.4th 815:
“Under the three strikes law, defendants are punished not just for their current offense but for their recidivism. Recidivism in the commission of multiple felonies poses a danger to society justifying the imposition of longer sentences for subsequent offenses. (Rummel v. Estelle (1980) 445 U.S. 263, 284.) The primary goals of recidivist statutes are: ‘… to deter repeat offenders and, at some point in the life of one who repeatedly commits criminal offenses serious enough to be punished as felonies, to segregate that person from the rest of society for an extended period of time. This segregation and its duration are based not merely on that person’s most recent offense but also on the propensities he has demonstrated over a period of time during which he has been convicted of and sentenced for other crimes. Like the line dividing felony theft from petty larceny, the point at which a recidivist will be deemed to have demonstrated the necessary propensities and the amount of time that the recidivist will be isolated from society are matters largely within the discretion of the punishing jurisdiction.’ [Citation.]” (Id. at pp. 823-824.)
Defendant has failed to show that his sentence is grossly disproportionate in comparison with other recidivist offenders having similar criminal records. (See People v. Goodwin, supra, 59 Cal.App.4th at p. 1094.) Having considered defendant’s individual culpability, his recidivism, and the danger he poses to society based on these factors, we conclude that defendant’s sentence is not so disproportionate that it shocks the conscience and offends fundamental notions of human dignity. (In re Lynch, supra, 8 Cal.3d at p. 424.) Accordingly, defendant’s claim that his sentence was cruel and unusual under the California constitution is rejected.
In appellate review on grounds of cruel and unusual punishment, as long as the punishment is not unconstitutionally disproportionate to the defendant’s individual culpability based on consideration of the offense and the offender, there is no requirement that it be proportionate to punishment imposed in other cases. (People v. Stanley (2006) 39 Cal.4th 913, 966-967 [intercase review not required].) Accordingly, the determination may be based on consideration of the offense and the offender alone. (See, e.g., People v. Ayon, supra, 46 Cal.App.4th at p. 399 [“Determinations whether a punishment is cruel or unusual may be made based on the first prong alone”-i.e., the offense and the offender]; People v. Meeks, supra, 123 Cal.App.4th at p. 707 [only necessary to consider secondary criteria in rare case that comparison leads to inference of gross disproportionality].) In any event, as we have noted herein, defendant has not shown his sentence is grossly disproportionate to other recidivist offenders with similar criminal records.
Similarly, the prohibition under the federal constitution against cruel and unusual punishment is applicable to noncapital cases only in exceedingly rare or extreme cases involving sentences which are grossly disproportionate to the offense-which is described as a “‘narrow proportionality principle.’” (Ewing v. California (2003) 538 U.S. 11, 20, 30 [lead opn. of O’Connor, J.] (Ewing); Lockyer v. Andrade (2003) 538 U.S. 63, 73.)
In Ewing, the Supreme Court upheld a three strikes sentence, even when applied concerning a nonviolent third strike. The defendant had stolen three golf clubs worth $1,200 as his third strike offense and was sentenced to 25 years to life. (Ewing, supra, 538 U.S. at p. 20.) The Supreme Court explained that the sentence did not constitute cruel and unusual punishment: “When the California Legislature enacted the three strikes law, it made a judgment that protecting the public safety requires incapacitating criminals who have already been convicted of at least one serious or violent crime. Nothing in the Eighth Amendment prohibits California from making that choice.” (Id. at p. 25.) Further, the Supreme Court explained that the legislative goal of punishing recidivist offenders more harshly is justified: “In weighing the gravity of [the defendant’s] offense, we must place on the scales not only his current felony, but also his long history of felony recidivism. Any other approach would fail to accord proper deference to the policy judgments that find expression in the legislature’s choice of sanctions. In imposing a three strikes sentence, the State’s interest is not merely punishing the offense of conviction, or the ‘triggering’ offense: ‘[I]t is in addition the interest … in dealing in a harsher manner with those who by repeated criminal acts have shown that they are simply incapable of conforming to the norms of society as established by its criminal law.’ [Citations.] To give full effect to the State’s choice of this legitimate penological goal, our proportionality review of [the defendant’s] sentence must take that goal into account.” (Id. at p. 29.) The court concluded the defendant’s sentence in that case “is justified by the State’s public-safety interest in incapacitating and deterring recidivist felons, and amply supported by his own long, serious criminal record.” (Id. at pp. 29-30, fn. omitted.)
Based on the above analysis, we conclude that defendant has failed to demonstrate a violation of the prohibition against cruel and unusual punishment under the federal constitution. Considering defendant’s history of aggressive criminal behavior and recidivism, his punishment was not grossly disproportionate. (See Lockyer v.Andrade, supra, 538 U.S. at pp. 66-68, 77 [two consecutive terms of 25 years to life under Three Strikes law for thefts of videotapes not grossly disproportionate under federal constitutional standards].)
DISPOSITION
The judgment is affirmed.
WE CONCUR: Wiseman, Acting P.J., Poochigian, J.