Opinion
B226682
02-01-2012
THE PEOPLE, Plaintiff and Respondent, v. STEPHEN PAUL JONES et al., Defendants and Appellants.
Nancy J. King, under appointment by the Court of Appeal, for Defendant and Appellant Stephen Paul Jones. John Steinberg, under appointment by the Court of Appeal, for Defendant and Appellant James R. Keys. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka and Lance E. Winters, Senior Assistant Attorneys General, Linda C. Johnson and Theresa A. Patterson, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BA306578)
APPEAL from judgments of the Superior Court of Los Angeles County, Kathleen Kennedy, Judge. Affirmed.
Nancy J. King, under appointment by the Court of Appeal, for Defendant and Appellant Stephen Paul Jones.
John Steinberg, under appointment by the Court of Appeal, for Defendant and Appellant James R. Keys.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka and Lance E. Winters, Senior Assistant Attorneys General, Linda C. Johnson and Theresa A. Patterson, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
Following a jury trial with dual juries, appellants James Robert Keys and Steven Paul Jones were convicted of multiple offenses. Both appellants were found guilty of home invasion robbery (Pen. Code, § 211; counts 6 & 9) and first degree burglary (§ 459; counts 7 & 10). Additionally, Jones was found guilty of: rape while acting in concert (§ 264.1; counts 4 & 8); oral copulation (§ 288a, subd. (c)(2); counts 5, 15 & 17); rape (§ 261, subd. (a)(2); count 13 &14); sexual penetration by foreign object (§ 289, subd. (a)(1); count 16); and kidnapping to commit robbery (§ 209, subd. (b)(1); counts 20 & 22). The jury found true numerous allegations concerning the use of a firearm (§§ 12022.53, subds. (b) & (e)(1)) and the infliction of great bodily injury on the victims (§§ 12022.7).
All further statutory references are to the Penal Code unless otherwise indicated.
Both appellants were also found guilty of crimes that were lesser included to the crimes charged. Keys was found guilty of assault—a lesser included offense to that charged in counts 4 and 8. Jones was found guilty of simple kidnapping—a lesser included offense to kidnapping for the purpose of oral copulation as charged in count 18.
The trial court found Keys had prior juvenile adjudications within the meaning of sections 667, subdivisions (b) through (i) and 667, subdivision (a)(1). Keys was sentenced to a determinate term of 3 years in state prison plus two consecutive indeterminate terms of 25 years to life. The trial court imposed and stayed, pursuant to section 654, terms on counts 7 and 10.
Jones was sentenced to a determinate term of 76 years, 4 months in state prison. In addition, the trial court imposed consecutive indeterminate terms as follows: two life terms with the possibility of parole; three terms of 25 years to life; and one term of 15 years to life. The court imposed and stayed, pursuant to section 654, terms on counts 7, 10, and 18.
Jones contends the evidence presented supports a conviction for one count of burglary rather than two counts. He also maintains the trial court erred by failing to sever 2005 robbery, kidnapping and sexual assault charges from 2006 home invasion robbery and sexual assault offenses.
Keys contends: (1) there was insufficient evidence to support the convictions for assault; (2) the trial court improperly instructed the jury on the natural and probable consequence doctrine; (3) the trial court erred in denying Keys's motion to dismiss his prior juvenile adjudications; (4) the sentence imposed violated the ban on cruel and/or unusual punishment; and (5) crimes committed as a juvenile could not be used to increase his sentence because he was not afforded a right to a jury trial when he sustained the juvenile adjudications.
We reject all of the contentions and affirm the judgments of conviction.
II. FACTS
A. Prosecution Evidence
1. Kidnapping, Robbery and Sexual Assault on May 15, 2005
On the evening of May 15, 2005, Cornell Murphy and his girlfriend Leah H. were sitting in Murphy's vehicle when they were approached by two African-American men brandishing guns. One of the men was Jones but the other man was not identified. Both men ordered the couple to open the car door and Murphy complied.
Following the demands of one of the men, Murphy provided his wallet. After pulling Leah from the car and forcing her to the ground, Jones ordered her into the back seat and his cohort into the front passenger seat.
The assailant in the front seat held a gun to Murphy's head and told him to drive to an automated teller machine (ATM). Murphy complied, but when he reached the machine it was not working. While on his way to a second machine, Murphy was struck in the head with a hard object by Jones. Murphy eventually reached the second machine, withdrew $200, and provided it to the man in the front seat.
While the vehicle was parked outside one of the ATM's, Jones unzipped his pants and ordered Leah to orally copulate him. She initially refused. But, as the group drove away from the ATM, Jones "shoved" Leah's head down and forced her to orally copulate him. Jones ejaculated into her mouth. Leah "spit up" a portion of the substance into her hair.
Murphy was ordered to park the vehicle on a residential side street. The men searched the car. Jones exited the vehicle, walked to the driver's door and punched Murphy. The men took Murphy's cellular telephone and car keys. Jones took Leah's cellular telephone.
The assailants walked away from the vehicle with Leah. Jones ordered Murphy to stay in the vehicle or he would be shot. While walking, Jones told Leah that he liked her and that he wanted to see her again. Leah was frightened and said she may be able to see Jones again if he let her go. The men allowed Leah to leave whereupon she ran home and called the police.
Leah underwent a sexual assault examination at the hospital. Deoxyribonucleic acid (DNA) testing revealed Jones's sperm was in her hair. 2. Home Invasion Robbery and Sexual Assaults on July 25, 2006 a. Background
On July 25, 2006, two roommates, T. G. and Paula L., lived in an apartment in Hollywood. They were victims of a home invasion robbery and sexual assaults. They identified three perpetrators of the crimes. Each woman used a different method to distinguish among the men who entered the apartment. T. referred to the men as the "first" man/suspect, the "second" man/suspect and the "third" man/suspect. She further explained the third man/suspect was "skinny." Paula distinguished the men by size: the large man, the medium man, and the skinny/smaller man.
T. testified all sexual assaults were committed by the "first" man. Paula testified the sexual assaults were committed by the medium-sized man. Jones's sperm and DNA were located throughout the residence
Viewing the evidence in the light most favorable to the verdict, Jones was the person who committed the sexual assaults and was the person referred to as the first man/suspect by T. and the medium-sized man by Paula. Similarly, because neither Keys nor Jones was the smaller "skinny" intruder and because another male was identified as the smaller assailant, the record supports the conclusion that Keys was the second man/suspect or the large assailant.
Accordingly, we refer to Jones where the record reflects T. identified the "first" man/suspect or Paula makes reference to the medium-sized man. We refer to Keys where the record reflects T.'s reference to the "second" man/suspect or Paula's reference to the large man. b. The Crimes
T. went to bed at approximately midnight and, because it was a hot night, she left her bedroom window open. T. woke up to the sound of her bedroom door opening. Two men were present—while one was moving across the room, Keys grabbed her by the neck and exclaimed, "This is a robbery. We want all your money." A third man appeared and handed Keys a gun whereupon Keys said, "This is not a joke. This is a robbery." T. motioned to a bag where her wallet was located and one of the men retrieved the wallet.
Keys and the third man went into Paula's bedroom while T. stayed behind with Jones. At around 4:00 a.m., Paula's bedroom door "burst open." Keys grabbed her by the throat and asked, "Where's the money?" Paula gasped for air and was eventually pushed into T.'s room.
While in T.'s room, Keys asked Paula for the location of money and valuables. He then pulled Paula back to her own bedroom and pushed her to the floor. When Paula indicated the women did not have a safe, Keys punched her in the face multiple times causing her to black out. She regained consciousness, while still on the ground, to discover her underwear was removed and Jones had his finger in her vagina. He removed his finger, threw Paula on the bed and ordered her to orally copulate him. She hesitated but Jones grabbed her head and forced her mouth onto his penis, moving her head up and down. Jones then required Paula to get on her hands and knees on the bed. When she did so, Jones inserted his penis into her vagina.
Jones touched T.'s breasts and ordered her to orally copulate him. She complied. When Jones left T. alone in her room, T. got down on her knees and yelled through her bedroom window. Jones ran back into the room and choked her to the point where she was gagging and unable to breathe. The other two men entered the room and told the Jones to "stop." He did so but then punched T. near her eye and told her, "Never do that again."
After T. was observed reaching for her cellular telephone, Jones grabbed her and took her to the dining area where she was forced to kneel on a chair and grab the back of the seat while he attempted to rape her from behind. Jones moved T. to Paula's bedroom where he ordered both women to orally copulate him and required Paula to kneel next to the bed and orally copulate T. while he pushed Paula's head into T.'s vagina. T. saw Jones behind Paula—Jones was moving back and forth as if he was raping her.
Jones required Paula and T. to switch positions. The women followed the orders and T. orally copulated Paula while Jones inserted his penis into T.'s vagina. He then forced Paula to "suck" his penis and T. to "lick" his testicles. When he was finished, Jones told T. and Paula to shower together. Jones explained, "You have to wash up very, very well. I don't want any evidence." He washed his penis in the shower and forced Paula to dry his penis with a pink towel.
Following the shower, Jones threatened the women that the men would "look for" them or their families if they did not provide accurate personal identification numbers to their ATM cards. The women provided the numbers and complied with orders to turn over the keys to Paula's vehicle. After the women were tied with cords, the three assailants left the premises. The women were able to untie themselves and T. ran to the window. She observed the men enter a dark red car that was the same make and model as the vehicle that another witness testified was taken from him at gunpoint by Keys the previous night. The women fled to a neighbor's home and called the police.
Justin Adams lived next door to Paula and T. He arrived home from work at approximately 3:30 a.m. and sometime thereafter, while standing on his front porch smoking a cigarette, he observed a red or maroon vehicle containing two African-American males drive by very slowly. The vehicle looked similar to the one a witness had testified Keys stole from him the previous night.
Adams returned inside his home and looked out of the window. He observed the vehicle stop and, at some point, heard the women's door open. The two men eventually left the apartment "rapidly."
Paula and T. knocked on Adams's door and entered his apartment. They were very upset and their faces were swollen. Paula indicated they were assaulted with pistols and fists. Adams called 911.
Paula and T. were treated for their injuries at the hospital. Paula had marks on her face, a black eye, bruised vocal cords, a severe ear injury, and pain in her hip. Her throat was delicate and she sustained a fractured hyoid bone which was indicative of strangulation. T.'s neck was bruised and showed signs of hemorrhage on the skin. She had swelling, bruising and an abrasion near her left eye. Her cheek and jaw were bruised and tender. Both women had portions of their bodies swabbed. c. The Investigation
On July 25, 2006, at 6:20 p.m., Keys was arrested while sitting in the front passenger seat of a vehicle near a gas station. Cellular telephones belonging to T. and Paula were found in his possession. In the trunk of the vehicle were two computers and a black bag that had been taken from the women's apartment.
A letter found in Jones's jail cell on July 31, 2008, was presented to Jones's jury. It indicated "Ping" and "Slick" stated they "hit the lick" and that "the bitches" "came on to" Jones resulting in a "3some." The letter further indicated Ping "ran off with the shit we took from the ho's." It was signed, "Paul, A.K.A. Young Frog." A police officer explained Ping was a reference to Keys and "hit the lick" was slang for a "house or a home."
A surreptitious recording of Keys in his jail cell was played for Keys's jury. Keys was recorded indicating he participated in a robbery and was the driver of the vehicle involved. During the robbery he observed "Frog" raping two women "doggy style." He also indicated Frog was "making the females eat each other . . . ." He explained they were unable to find a safe but they were able to take other items.
In T. and Paula's apartment, a match of Jones's DNA profile was found in sperm on a towel in the bathroom and bedding from T.'s bedroom. A substance matching his DNA profile was found in semen on the drain in the bathroom of T. and Paula's apartment as well as on T.'s neck. Sperm containing Jones's DNA was also found on a sample of Leah's hair.
B. Defense Evidence
Detective Gregory Stern testified in Keys's defense. When he showed T. a photographic lineup containing Keys, the detective recalled T. indicated she did not believe Keys was the person who raped her. However, in his written report, the detective indicated T. said she did not believe Keys was "the suspect" but she thought that, of the people in the lineup, Keys looked "most like the suspect."
Dr. Robert Shomer testified about various factors impacting the accuracy of eyewitness identification. Among the factors that decrease the reliability of identification include, but are not limited to, a lapse of time of more than 24 hours since the observation, the witness being a different race than the person identified, and/or the observation being made during an unexpected highly stressful event.
III. DISCUSSION
A. Sufficiency of the Evidence
1. Applicable Law
"'"To determine the sufficiency of the evidence to support a conviction, an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt."' [Citations.]" (People v. Valdez (2004) 32 Cal.4th 73, 104.) When making this determination, the reviewing court presumes every fact in support of the judgment that the jury could have reasonably deduced from the evidence. (People v. Rayford (1994) 9 Cal.4th 1, 23.) The same standard of review applies even if the prosecution relies on circumstantial evidence. (People v. Scott (2011) 52 Cal.4th 452, 487, citing People v. Guerra (2006) 37 Cal.4th 1067, 1129, overruled on a different point in People v. Rundle (2008) 43 Cal.4th 76, 151.) 2. Sufficient Evidence Demonstrated Jones Committed Two Burglaries
Jones was convicted of two counts of burglary. He argues one of the burglary convictions should be reversed because the evidence demonstrated he made only one entry into an inhabited dwelling, i.e., the entry into the apartment of T. and Paula. He is incorrect.
"Every person who enters any house, room [or] apartment . . . with intent to commit grand or petit larceny or any felony is guilty of burglary. . . ." (§ 459, italics added.) If a defendant enters a bedroom within a single family residence with the requisite intent to commit a theft or felony therein, such entry constitutes a burglary even if the requisite intent was formed after the entry into the house. (People v. Sparks (2002) 28 Cal.4th 71, 73, 81.)
We acknowledge Division Two of this district has held that entry into two separate bedrooms of two roommates sharing an apartment constitutes only one burglary. (People v. Richardson (2004) 117 Cal.App.4th 570, 573-577 ("Richardson").) However, the facts in Richardson are distinguishable. Richardson entered the apartment of his sister and her roommate while the occupants were not home. Although each resident of the apartment had separate bedrooms, there were no locks on the bedrooms and Richardson's sister stored clothing in her roommate's bedroom closet. Richardson stole items from each bedroom. (Id. at p. 572.)
Richardson held that entry into the bedrooms of the two roommates could not constitute separate burglaries for two reasons. The first related to the roommates' expectations that they would be protected against unauthorized entry into the bedroom. In this regard, Richardson found the roommates did not have separate reasonable expectations against unauthorized entry and therefore did not establish separate dwelling places because (1) there were no locks on the bedroom doors, and (2) the defendant's sister stored clothing in her roommate's closet. (Id. at p. 575.)
The second reason supporting only one burglary concerned the intent of the defendant. Richardson recognized "the policy of protecting occupants with reasonable expectations of separate protections" may be advanced by convicting the defendant of separate burglaries if "he formed the intent to burglarize the second bedroom after burglarizing the first." (Id. at p. 575.) But, because there was no evidence regarding Richardson's intent, the appellate court was unable to find his intent supported two burglaries. (Ibid.)
The facts before us are different from those in Richardson. The burglaries occurred in the early hours of the morning when the two women were sleeping with their bedroom doors closed. No roommate was using a closet in the other roommate's bedroom. By closing the bedroom door and sleeping in the early hours of the morning, the women were clearly discouraging unauthorized entry into the bedrooms. It is one thing to leave a residence with a bedroom door unlocked as in Richardson and quite another to secure oneself behind a bedroom door at night for the purpose of sleeping. The latter scenario demonstrates a reasonable expectation of protection against unauthorized entry. By closing a bedroom door and sleeping in the early hours of the morning, the occupant of the bedroom has adequately conveyed to others in the apartment that entry into the bedroom without first obtaining permission is prohibited.
In addition, the evidence demonstrates Jones formed the intent to burglarize Paula's room after he burglarized T.'s room. He and his cohorts first entered T.'s bedroom and T. was told, "We want all your money." After her wallet was secured, the men led her around the house asking what was behind certain doors. At one point she identified her roommate's bedroom door. Thereafter, Paula's bedroom door was "burst open" by one of the men and Paula was asked, "Where's the money?"
Viewing the evidence in the light most favorable to the two verdicts, a rational trier of fact could have concluded: (1) T. and Paula established reasonable protections of unauthorized entry by closing their doors and sleeping in the early morning hours; and (2) Jones had the initial intent to burglarize T. and, after doing so, formed the intent to burglarize Paula upon his discovery that she was in the nearby bedroom.
"The purpose of the burglary laws is to forestall situations that are dangerous to personal safety caused by the unauthorized entry of an intruder into an inhabited dwelling. [Citation.]" (Richardson, supra, at p. 574.) "[A] different burglary occurs each time the perpetrator enters into a separate dwelling space if a new and separate danger is posed to each of the occupants upon entry into each dwelling." (Id. at p. 574, citing People v. O'Keefe (1990) 222 Cal.App.3d 517, 521.) Such was the case here—a new and separate danger was posed to Paula when her door was burst open by an assailant. Jones's burglary convictions were supported by sufficient evidence and consistent with the policy underlying the burglary statute. 3. There Was Sufficient Evidence Keys Committed Two Assaults
Keys was charged with rape in concert against T. and Paula—counts 4 and 8 respectively. He was convicted of the lesser included offense of assault on both charges.
Keys maintains his liability for simple assault was based on the theory that he either aided and abetted the rapes or that the sexual assault was a natural and probable consequence of the robbery. Extrapolating on this assertion, it appears he argues that there was insufficient evidence to support the simple assault convictions because (1) he was not present and did not directly aid and abet the rapes, and (2) the rapes were spontaneous and impulsive acts of Jones as opposed to a natural and probable consequence of the robbery.
Keys's argument misses the mark. The jury was instructed on principles of aiding and abetting, including the natural and probable consequences doctrine, only as it related to the greater offense of rape in concert. Once the jury found Keys not guilty of that offense, it was required to consider whether, in the course of events corresponding to Jones's rape of the two women, Keys committed the lesser included offense of simple assault.
"An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." (§ 240.) The record reflects the events in the women's apartment unfolded quickly. During the course of those events Keys's contribution to the crimes included choking both women and punching Paula in the face. The jury's finding that Keys assaulted T. and Paula is supported by sufficient evidence.
C. Severance
Jones argues the trial court abused its discretion by denying his motion to sever the charges related to the commission of the 2005 offenses (i.e., the charges involving Leah) from the charges related to the commission of the 2006 crimes (i.e., the crimes committed against T. and Paula). We evaluate the relevant factors governing severance as they were presented to the trial court to determine whether there was an abuse of discretion. (People v. McKinnon (2011) 52 Cal.4th 610, 630, citing People v. Zambrano (2007) 41 Cal.4th 1082, 1128, overruled on a different point in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) As explained below, the trial court did not abuse its discretion by denying the motion to sever.
Section 954 provides in pertinent part: "An accusatory pleading may charge . . . two or more different offenses of the same class of crimes or offenses, under separate counts, and if two or more accusatory pleadings are filed in such cases in the same court, the court may order them to be consolidated . . . provided, that the court in which a case is triable, in the interests of justice and for good cause shown, may in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately . . . ."
"[A] joint trial 'ordinarily avoids the increased expenditure of funds and judicial resources which may result if the charges were to be tried in two or more separate trials.' [Citations.]" (People v. McKinnon, supra, 52 Cal.4th at p. 630.) It is preferred over separate trials. (People v. Soper (2009) 45 Cal.4th 759, 771-772.)
"'Denial of a severance motion may be an abuse of discretion if the evidence related to the joined counts is not cross-admissible; if evidence relevant to some but not all of the counts is highly inflammatory; if a relatively weak case has been joined with a strong case so as to suggest a possible "spillover" effect that might affect the outcome; or one of the charges carries the death penalty.' [Citations.]" (People v. McKinnon, supra, 52 Cal.4th at p. 630.)
It may be unnecessary for an appellate court to reach the issue of cross-admissibility if the defendant "fails to establish that, notwithstanding any absence of cross-admissibility, he was unfairly prejudiced by joinder of the two . . . cases." (Id., at p. 630.) "'"While . . . cross-admissibility ordinarily dispels any inference of prejudice, [the Supreme Court has] never held that the absence of cross-admissibility, by itself, sufficed to demonstrate prejudice."' [Citations.] '[E]ven if cross-admissibility did not support consolidation of the cases, the absence of cross-admissibility alone would not be sufficient to establish prejudice where (1) the offenses were properly joinable under section 954, and (2) no other factor relevant to the assessment of prejudice demonstrates an abuse of discretion.' [Citations.]" (Id. at pp. 630-631.)
The 2005 offenses (i.e., kidnapping to commit robbery and sexual assault) were of the same class as the 2006 offenses (i.e., robbery, burglary and sexual assault). (See People v. Ochoa (1998) 19 Cal.4th 353, 409; People v. Leney (1989) 213 Cal.App.3d 265, 269.) Thus, we first determine, apart from the issue of cross-admissibility, whether any of the remaining three factors required severance. (See § 954.1; see also People v. McKinnon, supra, 52 Cal.4th at p. 630.)
Initially, we quickly dispense with the factor regarding the death penalty. Joinder of the offenses did not render Jones eligible for the death penalty. This factor is nonexistent.
The evidence relevant to the 2005 and 2006 crimes was inflammatory. The category of crimes Jones contends should have been severed concerned the abduction of a couple at gunpoint whereupon the boyfriend of the sexual assault victim drove around town, looking for an ATM, with a gun pointed at his head. His girlfriend was forced to not only orally copulate Jones and but also endure Jones's ejaculation into her mouth. That category of offenses is no more inflammatory than the home invasion robbery of two women who were forced to orally copulate Jones and endure various sexual penetrations. The events are similarly repulsive.
The evidence concerning the 2006 offenses was not relatively weak when compared to the 2005 offenses. Jones's identity was convincingly established in both categories of crimes. In the 2005 crimes his DNA was found in sperm on Leah's hair and Leah was able to identify Jones in a photographic lineup as well as in court during her trial testimony. In the 2006 crimes, his DNA (sperm) was found in multiple locations: on T.'s bedding; on a towel in her bathroom; on the shower drain in the bathroom; and on T.'s neck. The forensic evidence implicating Jones in the 2006 crimes was corroborated by his written jailhouse letter detailing his account of the events.
Thus, before reaching the issue of cross-admissibility, it is clear that the application of the remaining three factors does not demonstrate joinder of the offenses was prejudicial or that the trial court abused its discretion in denying the severance motion. We need not reach the issue of cross-admissibility.
Finally, contrary to Jones's claim, joinder did not amount to a denial of fundamental fairness. "'A pretrial ruling that was correct when made can be reversed on appeal only if joinder was so grossly unfair as to deny due process.' [Citation.]" (People v. Hartsch (2010) 49 Cal.4th 472, 494-495.) Joinder of the charges did not render Jones's trial fundamentally unfair given the DNA evidence, Leah's identifications, and Jones's incriminating letter.
D. Keys Was not Prejudiced By the Natural and Probable Consequence Instruction
Keys contends the trial court improperly instructed his jury on the natural and probable consequence doctrine as it related to the charges of rape in concert. Even assuming the instruction was not warranted by the evidence, we conclude any error in reading it to the jury was harmless under People v. Watson (1956) 46 Cal.2d 818. (Cal. Const., art. VI, § 13; People v. Breverman (1998) 19 Cal.4th 142, 149, 164-179 [Watson harmless error standard is used to evaluate violations of California instructional requirements that are not structural defects in criminal proceedings].) Watson requires we assess, "'after an examination of the entire cause, including the evidence'" (Cal. Const., art. VI, § 13), whether it appears reasonably probable that the defendant would have obtained a more favorable outcome if the error had not occurred. (People v. Watson, supra, 46 Cal.3d at p. 836.)
Keys has not established any prejudicial error as he was acquitted of the rape charges. Although he was convicted of the lesser included offense of simple assault, the jury was not instructed that it could base such a verdict on the natural and probable consequences doctrine.
E. Keys Motion to Dismiss His Prior Juvenile Adjudications
Following a court trial, it was found true that Keys had four prior juvenile adjudications alleged under the Three Strikes law (§ 667, subds. (b) - (i)). He made a motion to dismiss the adjudications pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497. The trial court denied the motion, recognizing Keys had not led a law-abiding life for an "extended period of time," was on parole from the California Youth Authority when he committed the offenses charged, and that the crimes he committed were "horrendous." Keys's contention that this ruling constituted an abuse of discretion is without merit.
In ruling on a defendant's motion to dismiss a prior conviction alleged pursuant to the Three Strikes law, "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." (People v. Williams (1998) 17 Cal.4th 148, 161.) The trial court's ruling is reviewed for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 376.)
"[A] trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (People v. Carmony, supra, 33 Cal.4th 367, 377.) "Because the circumstances must be 'extraordinary . . . by which a career criminal can be deemed to fall outside the spirit of the very scheme within which he squarely falls once he commits a strike as part of a long and continuous criminal record, the continuation of which the law was meant to attack' [citation], the circumstances where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme must be even more extraordinary. Of course, in such an extraordinary case—where the relevant factors described in [People v. ] Williams, supra, 17 Cal.4th 148, manifestly support the striking of a prior conviction and no reasonable minds could differ—the failure to strike would constitute an abuse of discretion." (Id. at p. 378.)
This is not such an extraordinary case. Prior to issuing its ruling, the trial court read Keys's written motion; listened to statements from Keys's mother, aunt, and grandmother; and considered oral arguments of counsel. From 1999 to his arrest for the charged offenses in July 2006, Keys committed multiple crimes. In January 1999, he gave false identification to a peace officer resulting in a sustained petition. The following month, a petition was sustained against Keys for failing to comply with a court order. Approximately 19 months later, he committed kidnapping, robbery and carjacking. These offenses resulted in a disposition requiring a commitment to the California Youth Authority. He was on parole from that commitment (for approximately one year) when he assaulted and robbed T. and Paula. Given Keys's criminal history and the gravity of the home invasion robbery, the trial court's decision to deny his motion to dismiss his prior adjudications was neither irrational nor arbitrary. There was no abuse of discretion.
F. Cruel and/or Unusual Punishment
Keys contends his punishment constitutes both cruel and unusual punishment under the federal Constitution and cruel or unusual punishment under the California Constitution. He did not raise these claims in the trial court and therefore is precluded from raising them on appeal. (People v. Norman (2003) 109 Cal.App.4th 221, 229; People v. Kelley (1997) 52 Cal.App.4th 568, 583; People v. DeJesus (1995) 38 Cal.App.4th 1, 27.) Nevertheless, the claims lack merit.
For purposes of the Eighth Amendment, the question of whether punishment for a noncapital crime must carry a "proportionate" sentence is a "narrow principle." (Ewing v. California (2003) 538 U.S. 11, 21.) The United States Supreme Court has, "'on occasion stated that the Eighth Amendment prohibits imposition of a sentence that is grossly disproportionate to the severity of the crime.' [Citation.] But, 'outside the context of capital punishment, successful challenges to the proportionality of particular sentences have been exceedingly rare.' [Citation.]" (Ibid., italics added.) In this regard, the United States Supreme Court has suggested great restraint should be placed on a finding that noncapital punishment amounts to cruel and unusual punishment by emphasizing that such a finding is only applicable in an "extreme" case such as a statute dictating a life term for a parking violation. (Rummel v. Estelle (1980) 445 U.S. 263, 274 & fn. 11.)
Under the California Constitution, a punishment may violate article I, section 17, "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; People v. Preciado (1981) 116 Cal.App.3d 409, 412.) "An examination of the nature of the offense and of the offender, '"with particular regard to the degree of danger both present to society"' is particularly relevant in determining this issue." (People v. Felix (2003) 108 Cal.App.4th 994, 1000.) "Because choosing the appropriate penalty is a legislative weighing function involving the seriousness of the crime and policy factors, the courts should not intervene unless the prescribed punishment is out of proportion to the crime. [Citation.]" (Id. at pp. 999-1000.)
Applying these principles to Keys, we conclude his sentence does not violate either the federal or state Constitutions. As outlined above, his criminal conduct was deterred only when he was committed to the California Youth Authority. Despite the fact that he had committed serious offenses in the past such as carjacking, robbery and kidnapping, he was granted parole after a five-year commitment to the California Youth Authority. Although Keys was given this opportunity to turn his life around, he chose to commit equally violent crimes and stand by while his companion brutally raped and sexually assaulted two women. His punishment neither constitutes the "extreme" case of an Eighth Amendment violation nor the level of disproportionality required to run afoul of the state Constitution.
For these reasons, trial counsel's performance was not inadequate and any failure to raise the issues in the trial court did not prejudice Keys. (See Williams v. Taylor (2000) 529 U.S. 362, 390-391; Strickland v. Washington (1984) 466 U.S. 668, 687-694.)
G. Keys's Prior Juvenile Adjudications
Keys argues his prior juvenile adjudications could not be used as qualifying prior convictions pursuant to the Three Strikes law (§ 667, subds. (b) - (i)) because he was not provided with the right to a jury trial on the prior adjudications. He acknowledges this claim has been rejected by the California Supreme Court in People v. Nguyen (2009) 46 Cal.4th 1007, 1016. We are obligated to follow Nguyen and find Keys's claim meritless. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
IV. DISPOSITION
The judgments are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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TURNER, P. J.
KRIEGLER, J.