Summary
noting witness's observation that "[p]imps frequently lure girls as young as fourteen into prostitution, enticing them with drugs, alcohol, and gifts"
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B227423 Los Angeles County Super. Ct. No. NA083605
12-07-2011
THE PEOPLE, Plaintiff and Respondent, v. DESHON PURVIS, Defendant and Appellant.
Verna Wefald, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews and Blythe J. Leszkay, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of Los Angeles County, Tomson T. Ong, Judge. Affirmed.
Verna Wefald, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews and Blythe J. Leszkay, Deputy Attorneys General, for Plaintiff and Respondent.
Deshon Purvis appeals his convictions on the following 17 counts:
1. Kidnapping to commit rape in violation of Penal Code section 209, subdivision (b)(1);
2. Sodomy by use of force in violation of section 286, subdivision (c)(2);
3. Forcible rape in violation of section 261, subdivision (a)(2);
4. Forcible rape in violation of section 261, subdivision (a)(2);
5. Forcible rape in violation of section 261, subdivision (a)(2);
6. Sodomy by use of force in violation of section 286, subdivision (c)(2);
7. Pimping a minor over age 16 in violation of section 266h, subdivision (b)(1);
8. Forcible rape in violation of section 261, subdivision (a)(2);
9. Forcible oral copulation in violation of section 288a, subdivision (c)(2);
10. Sodomy by use of force in violation of section 286, subdivision (c)(2);
11. Pimping a minor under age 16 in violation of section 266h, subdivision (b)(2);
12. Lewd act on a child in violated on section 288, subdivision (c)(1);
13. Lewd act on a child in violated on section 288, subdivision (c)(1);
14. Lewd act on a child in violated on section 288, subdivision (c)(1);
15. Lewd act on a child in violated on section 288, subdivision (c)(1);
16. Lewd act on a child in violated on section 288, subdivision (c)(1); and
17. Lewd act on a child in violated on section 288, subdivision (c)(1).
All further statutory references are to the Penal Code unless otherwise designated.
A count 18 was added but later dismissed.
Purvis contends that his total sentence of 206 years and 8 months to life constitutes cruel and unusual punishment prohibited by the federal and California constitutions. He further alleges ineffective assistance of counsel for failing to object to his sentencing at trial. As we shall explain, Purvis's sentence does not violate constitutional bans on cruel and unusual punishment, and his counsel was not ineffective at trial. Accordingly, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
A. Prostitution in Compton and Long Beach
An illicit subculture of prostitution pervades areas of Compton and Long Beach. Along Long Beach Boulevard, from approximately 47th Street to Rosecrans Avenue, pimps and prostitutes ply their trade on what they colloquially call the "Compton track." Prostitutes frequently meet their clients, or "johns," at motels located on the Compton track, and motel employees note that prostitution is a "big problem" in the area.
On the Compton track, pimps have developed a well-known modus operandi to indoctrinate young girls into a life of prostitution. Each pimp operates as the "C.E.O." of his "stable" of prostitutes, with one or more long-time prostitutes as his "bottom bitch." The "bottom bitch" manages the stable of girls and also acts as a buffer between the pimp and law enforcement, often protecting the pimp by concealing his identity. To lure new girls, or "cherries," into prostitution, a pimp will "troll" high schools or group homes or pay others a finder's fee to bring potential victims to him. Once the pimp meets a new girl, he typically offers her alcohol or marijuana to lower her resistance or takes the girl shopping for clothes or to get her hair and nails done. At some point in the indoctrination process, the pimps will use violence -- often raping or sodomizing their victims -- to intimidate the girls and break down their resistance.
Once a new girl is sufficiently indoctrinated, the pimp then begins to market her as a sexual commodity. The pimp, the bottom bitch and the cherry will check into a motel, and the bottom bitch and the cherry will go to a different room in the motel for a "date" with a john. After performing sexual services for the john, the bottom bitch ensures that the john hands the money directly to the cherry and that the cherry hands the money to the pimp, who is often sitting on the stairs outside. B. Josephine O. and "Nicole"
Josephine O. (Josie) had recently moved from Oregon to Long Beach to live with her grandmother. At the time of the relevant events, Josie was 16 years old.
On September 30, 2009, Josie skipped school to meet her friends at a hamburger stand. Once there, her friend Tanya introduced Josie to a man who provided them with marijuana, which the girls smoked. The man then took the girls to a house in Compton, where she met Antoinette W., who introduced herself to Josie as "Nicole." Nicole then described to Josie how she could make money from prostitution and drove Josie to a beauty supply store, after which they returned to the house in Compton. C. Josie and Purvis
At this point, Purvis entered the car Nicole was driving, and Josie asked him and Nicole to take her home. Purvis responded that he would take Josie home "when he was done with her." Josie continued to insist that they take her home, but Nicole drove the three of them to a dress store, a store where Nicole got her nails done, and a third store where Nicole bought high heels. After Nicole made her purchases, she drove Josie to an area in Compton, and both Nicole and Purvis described for Josie where to "stop and get picked up" by johns for prostitution.
Josie did not know Purvis's name.
The three returned to the house in Compton, where Nicole told Purvis that she did not want to go on a "date" that evening. In response, Purvis hit Nicole in the face and pulled her hair, and she screamed. After Nicole returned from her date approximately two hours later, she and Purvis took Josie to the Luxury Inn Motel, where they checked into a room.
At trial, the motel clerk confirmed that Purvis signed the room registration slip for September 30, 2009, and October 1, 2009. The clerk also confirmed that Purvis and Nicole (under an assumed name) signed several other registration slips. between July and September 2009.
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Once in the hotel room, Josie asked Purvis if she could smoke a cigarette outside, but he told her to smoke in the bathroom. Josie entered the bathroom. Purvis followed her in, locked the door, and then raped and sodomized her. After Purvis violated Josie, he lay down next to Nicole on the bed and began fondling her.
The next day, October 1, Nicole learned that Purvis had had sex with Josie, and began brutally attacking Josie as Purvis drove them down the freeway. Purvis grabbed Nicole, hit her a couple of times, and then pulled over and threw Nicole out of the car. Afterwards, Purvis drove Josie back to the motel, where he again raped and sodomized Josie.
That evening, Nicole returned to the motel, apologized to Josie, and told her that she (Josie) had a date with a customer in a room on the first floor of the motel. During the date, Nicole accompanied Josie as she orally copulated a man, who afterwards gave her a $100 bill. Nicole asked Josie to take the money to Purvis, who was sitting on the stairwell outside, to get change. When she approached Purvis with the money, he took it and asked Josie what sexual acts she performed on the man, and she told him.
On October 2, Purvis, Nicole, and Josie were still at the motel. Purvis made Josie take a bath with Nicole, and made Nicole stick her fingers in Josie's vagina. He then inserted his penis in Josie's vagina. After the bath, the three moved into the bedroom, where Purvis made Nicole put her mouth on Josie's vagina while he had sex with Nicole. Purvis then made Josie put her mouth on Nicole's vagina while Purvis had anal sex with Josie. When Josie went to the bathroom afterwards, she noticed that she was bleeding from her anus.
On October 3, Purvis learned that the police were searching for Josie. Nicole then called Josie's grandmother pretending to be a police detective and told her where she could find Josie. Purvis and Nicole then dropped Josie off at a bus stop, from which her family subsequently picked her up. D. Purvis's Arrest and Sentencing
Two weeks later, on October 14, Purvis was arrested and booked. When interviewed by detectives, Purvis initially denied being a pimp, but admitted to taking cash from Josie and to numerous sexual acts with Nicole, whose real name was discovered to be Antoinette W. These sexual acts included oral, vaginal, and anal sex. Purvis also revealed that he knew Antoinette was only fourteen years old at the time these acts occurred.
Purvis was charged with 17 counts of sex crimes against Josie and Antoinette, two underage girls. Counts 1 through 10 were committed against Josie, and Counts 11 through 17 were committed against Antoinette. The People alleged that pursuant to section 667.61, subdivision (b), with regard to counts 2 through 6, 8, and 9, that Purvis kidnapped Josie. The People further alleged that pursuant to section 667.61, subdivisions (a) and (d), with regard to counts 2 through 6, and 8 through 10, that Purvis kidnapped Josie, substantially increasing the risk of harm over and above the risk inherent in the underlying offense.
A jury convicted Purvis on all counts, finding the special allegations true. On September 15, 2010, the trial court sentenced Purvis to a total sentence of 206 years and eight months to life. Purvis filed a timely notice of appeal.
DISCUSSION
I. Cruel and Unusual Punishment
Purvis argues that his sentence of 206 years and 8 months to life violates constitutional bans on cruel and unusual punishment. We conclude his argument is meritless.
Criminal defendants have constitutional protection from cruel or unusual punishment for their crimes. (U.S. Const., 8th amend.; Cal. Const., art. I, § 17.) Federal courts have incorporated the Eighth Amendment as applicable to the states under the due process clause of the Fourteenth Amendment. (U.S. Const., 14th Amend., § 1; see also Robinson v. California (1962) 370 U.S. 660, 666-667 [holding that a state law inflicting cruel and unusual punishment violates the Fourteenth Amendment].)
However, we separately construe the California constitution's ban on cruel or unusual punishment. (People v. Cartwright (1995) 39 Cal.App.4th 1123, 1135-1136.) A punishment violates 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.) To determine whether a punishment shocks the conscience, we apply the three-part test from in Lynch. First, we examine the "nature of the offense and/or offender, with particular regard to the degree of danger both present to society." (Id. at p. 425.) Second, we compare the challenged penalty with penalties for other, more serious offenses. (Id. at p. 426.) Third, we compare the challenged penalty with the penalties other jurisdictions prescribe for the same offense. (Id. at p. 427.)
When applying the test from In re Lynch, we examine the totality of the circumstances surrounding the offense and a defendant's personal characteristics. (People v. Panah (2005) 35 Cal.4th 395, 501.) We consider "the circumstances of the offense, including motive, the extent of the defendant's involvement in the crime, the manner in which the crime was committed, and the consequences of the defendant's acts." (Ibid.) We also consider a defendant's age, prior criminality, and mental capabilities. (People v. Zepeda (2001) 87 Cal.App.4th 1183, 1214.) Finally, when we review a sentence to determine whether it is cruel or unusual punishment, we assume that the defendant will serve the maximum sentence. (In re Lynch, supra, 8 Cal.3d at p. 419; People v. Morgan (1973) 36 Cal.App.3d 444, 447.)
A. Purvis's Sentence Comports with the Federal Constitution.
We begin by observing that Purvis's sentence does not violate the federal Constitution's ban on cruel and unusual punishment. The Eighth Amendment forbids punishments that are grossly disproportionate to the offense. (Ewing v. California (2003) 538 U.S. 11, 23; see also People v. Cartwright, supra, 39 Cal.App.4th at p. 1135.) In Harmelin v. Michigan (1991) 501 U.S. 957, 965, the Supreme Court held that the Eighth Amendment contained no proportionality guarantee, expressly rejecting Solem v. Helm (1983) 463 U.S. 277, 290-292 and its three-part proportionality test analogous to that in Lynch. (See also Cartwright at p. 1135 [noting Harmelin's rejection of the Solem test].) As a result, Purvis's reliance on Solem's three-part test is misplaced.
Here, under the Harmelin standard Purvis's sentence is not grossly disproportionate to his numerous offenses. Section 667.61, subdivision (i) sets forth mandatory consecutive sentences for certain sexual offenses if committed against the same victim on separate occasions. The trial court therefore calculated Purvis's sentence according to this mandatory sentencing scheme. In Harmelin, the Supreme Court upheld a life sentence without the possibility of parole for a first-time offender charged with possessing 672 grams of cocaine. (Harmelin v. Michigan, supra, 501 U.S. at pp. 961, 1001-1009.) Purvis's offenses are more severe than Harmelin's, yet Purvis's sentence of 206 years and 8 months with the possibility of parole is no more severe than the sentence upheld as constitutional in Harmelin. Therefore, as in Harmelin, Purvis's sentence is not grossly disproportionate and does not violate the Eighth Amendment's ban on cruel and unusual punishment.
B. Purvis's Sentence Comports with the California Constitution.
We also determine that when we apply the three-part test of Lynch, Purvis's sentence does not violate the California Constitution. First, we examine the nature of the offenses, the nature of the offender, and the degree of danger posed to society. Here, we find that Purvis and his multiple offenses of kidnapping, rape, sodomy, lewd act upon a minor, and pimping pose a significant degree of danger to society. An illicit subculture of pimping and prostitution thrives in Compton and Long Beach. As the long-time night clerk of the Luxury Inn Motel in Long Beach observed, prostitution has been "a big problem" at the motel. Pimps frequently lure girls as young as fourteen into prostitution, enticing them with drugs, alcohol, and gifts. To "indoctrinate" new girls into a life of prostitution, a pimp will intimidate, sexually assault, and beat the girls, often with the help of more seasoned girls already under the pimp's sway.
It is against this milieu of violence and exploitation that we must view Purvis's offenses. Purvis kidnapped Josie, raped and sodomized her, forced her to orally copulate another underage female, and prostituted her. Even a year after her ordeal, Josie still suffers from Purvis's acts; she does not trust men and does not like her hair or face being touched. She will carry these experiences with her for the rest of her life. Thus, Purvis's offenses and those similar to his pose a significant danger to the young girls in Compton and Long Beach.
Purvis also contends that his minor criminal history is a mitigating factor, yet this contention lacks merit. When questioned by Detective Johnson, Purvis admitted, "'I know that I fucked up big and that I'm going -- I know that I'm going to get a lot of time.'" Despite his minor criminal history, Purvis was fully aware at the time of questioning of the seriousness of his offenses. Likewise, the extensive paper trail of receipts from the Luxury Inn and the night clerk's identification of Purvis accompanied by Antoinette and other girls suggests a consistent pattern of victimizing and abusing young women prior to the incident with Josie. As a result, when we apply the first prong of the Lynch test to Purvis and his offenses, his sentence is not disproportionate to the severity of his offenses.
The second part of the Lynch test requires us to compare Purvis's punishment with the punishment prescribed for more serious cases in California. Purvis suggests that his sentence is greater than what an individual convicted of first degree murder would receive. As the People correctly observe, however, first degree murder is punishable by death, life in prison without the possibility of parole, or 25 years to life. (§ 190.)
California courts have also routinely imposed longer sentences than Purvis's for similar sexual offenses. Punishment under section 667.61 "is precisely tailored to fit crimes bearing certain clearly defined characteristics. For the 25-year minimum term to apply, the predicate offense must be a crime of sexual violence and it must be committed under circumstances which increase the risk of injury or death to the victim such as kidnapping, burglary, or infliction of mayhem or torture." (Fn. & italics omitted.) (People v. Estrada (1997) 57 Cal.App.4th 1270, 1280.) Purvis's sentence is therefore in line with other sentences handed down under section 667.61. (See, e.g., People v. Retanan (2007) 154 Cal.App.4th 1219, 1222, 1230-1231 [135 years to life for 17 sexual offenses against four victims]; People v. Cartwright, supra, 39 Cal.App.4th at pp. 1130, 1134-1137 [375 years to life plus 53 years for 19 sexual offenses against three victims]; People v. Wallace (1993) 14 Cal.App.4th 651, 666-667 [283-year sentence for 46 sex crimes against seven victims]; People v. Bestelmeyer (1985) 166 Cal.App.3d 520, 522-523, 531-532 [129 years for 25 sex crimes against one victim].)
The third prong of the Lynch test requires us to compare Purvis's sentence with the punishment prescribed for the same offenses in other jurisdictions. Because Purvis has not provided us with any comparative data to suggest other jurisdictions treat his multiple offenses more leniently, we need not rule on this prong of the Lynch test. (See People v. Retanan, supra, 154 Cal.App.4th at p. 1231.)
Finally, although Purvis in his reply brief cites Justice Mosk's sentiments on long prison sentences in People v. Deloza (1998) 18 Cal.4th 585, 600-602, that authority is unavailing. Justice Mosk's concurrence in Deloza holds no precedential value and thus fails to further Purvis's appeal. (See People v. Byrd (2001) 89 Cal.App.4th 1373, 1382-1383 [rejecting appellant's use of Justice Mosk's Deloza concurrence as binding authority].)
In view of the foregoing, we conclude that Purvis's sentence of 206 years and 8 months to life with the possibility of parole does not shock the conscience or offend fundamental notions of human dignity and therefore does not constitute cruel or unusual punishment under the California Constitution.
II. Ineffective Assistance of Counsel
Purvis contends that his counsel's failure to object to the duration of his sentence violated his constitutional right to effective assistance of counsel. We disagree.
Both the federal and California constitutions guarantee a criminal defendant the right to assistance of counsel. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15.) Under the federal constitutional standard, "effective assistance" requires that counsel render "'adequate legal assistance.'" (Strickland v. Washington (1984) 466 U.S. 668, 686.) Courts find inadequate legal assistance only when counsel's conduct "so undermined the proper functioning of the adversarial process" that injustice results. (Ibid.) Under the California standard, to obtain relief for ineffective assistance of counsel a defendant must show that: (1) counsel failed to meet an objective standard of professional reasonableness, and (2) defendant was prejudiced by counsel's deficient representation such that without the counsel's ineffective assistance, it is reasonably probable that defendant would have obtained a more favorable result. (See People v. Bennett (1998) 17 Cal.4th 373, 383.)
We review the record to determine whether counsel's assistance was constitutionally deficient. When the record is silent on why counsel did or did not act in the challenged manner, we affirm these cases on appeal unless counsel failed to provide an explanation when asked or unless no explanation could be satisfactory. (People v. Ledesma (1987) 43 Cal.3d 171, 218.) We may reject a claim of ineffective assistance without deciding whether counsel's performance was defective when defendant fails to show any resulting prejudice. (People v. Earp (1999) 20 Cal.4th 826, 870.)
Here, because Purvis cannot show any resulting prejudice, we decline to reverse Purvis's conviction on the ground of ineffective assistance of counsel. Purvis argues that his counsel was ineffective because she failed to object at trial that his sentence of 206 years and 8 months to life was cruel and unusual punishment. As we have shown above, Purvis's sentence of 206 years and 8 months to life is neither cruel nor unusual punishment for the offenses he committed. Because Purvis has failed to show any resulting prejudice, we reject his claim without deciding whether Purvis's counsel provided ineffective assistance.
DISPOSITION
The judgment is affirmed.
WOODS , J.
We concur:
PERLUSS, P. J.
ZELON, J.