Filed 3/15/13 P. v. Jackson CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D061164
Plaintiff and Respondent,
v. (Super. Ct. No. SCD233151)
ROBERT JOSEPH JACKSON,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Amalia L. Meza, Judge. Affirmed.
A jury found Robert Joseph Jackson1 guilty of residential burglary and
robbery. The court found true that he had five prison priors, four serious felony
priors, and four strike priors and sentenced him to 46 years to life in prison. Jackson
appeals, contending (1) there was insufficient evidence to support his convictions,
1 Defendant was charged in the second amended information as Robert Anderson aka Robert Joseph Jackson. Prior to trial, he informed the court that his true name is Robert Joseph Jackson. Accordingly, the court modified the information to reflect the defendant's name as Robert Joseph Jackson aka Robert Anderson. and (2) his sentence constitutes cruel and unusual punishment. We reject Jackson's
contentions and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In September 2010, Clifton and Ledesma Broadhurst were building a shed
outside of their home when they heard a noise possibly coming from inside the
house. They went inside and saw their patio door was open and Ledesma's purse was
sitting wide open on the freezer instead of in the cupboard where it was usually
stored. Clifton then saw a man trying to leave through a security door. The man was
African American, six feet four inches to six feet five inches tall, had a slender build
and was wearing a white polo shirt with red and black stripes. The man approached
and said, "Everything is cool. Everything is fine." Clifton stepped in between the
man and Ledesma and instructed the man to stay there while he called the police.
The man shoved Clifton out of the way and then grabbed Ledesma by the wrists and
threw her to the ground. After Clifton helped Ledesma up, he saw that the man had
jumped over the gate in the front yard and was headed toward an alley. When
Clifton got to the alley, the man was gone. In the meantime, Ledesma checked her
purse and noticed that her wallet containing at least $30 was missing. Clifton
returned home where Ledesma was on the phone with a 911 dispatcher.
Duane Zugel, who lived in the area, heard the struggle and also called 911.
Zugel told the operator that he saw an African American male in his mid-twenties in
a striped shirt run to an apartment complex north of him. Zugel described the
2 suspect as being in his twenties based on the man's thin build and the way he was
running.
Officer Richard Barton received a report of the burglary and set up a
perimeter to attempt to locate the perpetrator. Officer Joseph Thomas was at a point
on the perimeter when he heard a broadcast description of the suspect. A
neighborhood resident told Officer Thomas that she saw a male matching the
description of the suspect run behind her yard. On top of a bush in the front yard of a
nearby residence, Officer Thomas found a polo shirt with vertical red, blue, white
and green stripes. The shirt was moist with fresh sweat and blood stains.
Approximately 10 feet away, just on the other side of a fence, officers found a wallet.
Clifton and Ledesma later identified the shirt as the one the suspect had been wearing
and the wallet as the one stolen from their home. The location where the shirt and
wallet were found was about four-tenths of a mile from the Broadhurst's home.
Tests on the shirt and wallet revealed that both items had blood on them.
A DNA analysis of samples taken from the shirt and wallet matched Jackson's DNA
profile. The probability that a person selected at random would have the same DNA
profile obtained from the items of evidence and Jackson was one in four sextillion
African Americans.
Defense
Officer Timothy Lindstrom was one of the officers who responded to the
burglary call. While he was driving to the area, Officer Lindstrom saw a man
wearing a black and red striped shirt and who generally matched the description of
3 the suspect. The man ran when Officer Lindstrom approached. Officer Lindstrom
chased him into an alley, but lost sight of him.
After receiving information from a neighbor, officers tracked down William
Harrell, who had a warrant out for his arrest, at his home. Officers brought Harrell
outside for a curbside lineup. Clifton was confident that Harrell was not the person
who he saw inside his home. In an uncertain tone, Ledesma stated, "Yes, I think it's
him." Officers took a DNA sample from Harrell, but did not arrest him. Harrell's
DNA was not on either the shirt or wallet found by other officers.
The Broadhursts' neighbor, Johanne Geoffrion, testified that she saw a man
wearing a striped shirt run down the sidewalk in front of the Broadhursts' home and
into an alley. The man was agile and moving very fast. Geoffrion described the man
as young, African American and five feet nine to five feet ten inches tall. The height
description may not have been accurate because Geoffrion was looking down from
her vantage point. Further, Geoffrion described the man as in his twenties based on
the way he moved and because he did not have gray hair.
DISCUSSION
I. Sufficiency of the Evidence
A. Additional Facts
At trial, Officer Barton initially testified that he collected the shirt and wallet
by placing them in one bag. He later clarified that testimony by stating that he must
have used two separate bags for the evidence because his handwriting indicating
different addresses was on two bags. He then placed the two smaller bags in one
4 larger bag. Officer Barton recalled that the shirt was moist with blood, but did not
see blood stains on the wallet. Officers Thomas and Brandon Woodland both
recalled that the evidence was in two separate bags. Similarly, Clifton testified that
he thought the evidence was in two bags. However, Ledesma thought the items were
in one bag.
After he collected the evidence, Officer Barton took the items to the
Broadhursts' home. He took the wallet and shirt out of the bag and placed them on
the trunk of his vehicle so that the Broadhursts could identify them. Officer
Woodland and Clifton testified that an officer showed Clifton the shirt for
identification by pulling a portion of it out of the bag and a similar procedure was
used for the wallet. Ledesma stated that the evidence was shown to her in a bag and
then put on the trunk of a police vehicle.
B. Analysis
Jackson contends there was insufficient evidence to support his convictions
because nobody specifically identified him as the perpetrator, another man fitting the
description of the suspect was found in the vicinity, and DNA from the shirt could
have contaminated the wallet when the items were placed in the same bag.
In assessing challenges to the sufficiency of the evidence, we review the
whole record in the light most favorable to the judgment to determine whether it
contains substantial evidence from which a reasonable trier of fact could find guilt
beyond a reasonable doubt. (People v. Maury (2003) 30 Cal.4th 342, 396.) It is not
our function to reweigh the evidence (People v. Ochoa (1993) 6 Cal.4th 1199, 1206)
5 and reversal is not warranted merely because the circumstances might also be
reasonably reconciled with a contrary finding. (People v. Thomas (1992) 2 Cal.4th
489, 514.) Our sole function is to determine if any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt. (People v.
Bolin (1998) 18 Cal.4th 297, 331; People v. Marshall (1997) 15 Cal.4th 1, 34.)
Before a conviction can be set aside for insufficiency of the evidence, it must clearly
appear that there is insufficient evidence to support it under any hypothesis. (People
v. Johnson (1980) 26 Cal.3d 557, 575–578.) The same standard of review applies
even "when the conviction rests primarily on circumstantial evidence." (People v.
Kraft (2000) 23 Cal.4th 978, 1053.)
Here, despite Jackson's contentions, there was sufficient evidence to support
his convictions. Although no witnesses were able to specifically identify Jackson as
the perpetrator, direct identification evidence is not required so long as circumstantial
evidence establishes guilt beyond a reasonable doubt. (People v. Ekstrand (1938) 28
Cal.App.2d 1, 3.) There was an abundance of circumstantial evidence in this case.
The Broadhursts both described the perpetrator as a tall, thin African American man
wearing a striped shirt. Neighbors gave a similar description. While the witnesses
described the perpetrator as a young man or in his twenties and Jackson was actually
54 years old, the witnesses' descriptions were based on the perpetrator's agility and
movements. Additionally, officers found a striped shirt moist with blood and sweat
only about four-tenths of a mile from the Broadhursts' home. Jackson's DNA was on
that shirt, and Ledesma's wallet was found only ten feet away from it.
6 We are not persuaded by Jackson's argument that there was insufficient
evidence to establish he was the perpetrator because blood from the shirt could have
contaminated the wallet. Although Officer Barton initially testified that he placed
the shirt and wallet in one bag, he clarified that testimony by stating that he must
have used two separate bags and then placed them in one larger bag. This procedure
was supported by testimony from Clifton and Officers Thomas and Woodland who
all recalled that the evidence was in two separate bags. Although Ledesma had a
different recollection, the jury was free to reject her testimony and accept the
testimony of other witnesses. The same is true regarding the discrepancies in
testimony concerning the procedures used to show the shirt and wallet to the
Broadhursts. Regardless, even without evidence of Jackson's DNA on the wallet, we
conclude there was substantial evidence to support the convictions.
Lastly, we are not convinced that because Harrell generally fit the description
of the suspect and was found in the vicinity, Jackson's convictions should be
reversed. Harrell's DNA was not on the shirt or the wallet found near the crime
scene, whereas Jackson's DNA was on the items. Additionally, Clifton was
confident that Harrell was not the person who he saw inside his home and Ledesma
was uncertain. The evidence involving Harrell does not negate the strong evidence
supporting the jury's verdicts.
In sum, we conclude there was sufficient evidence to support Jackson's
convictions.
7 II. Cruel and Unusual Punishment Claim
A. Background
The court found true that Jackson had five prison priors, four serious felony
priors, and four strike priors and sentenced him to a total term of 46 years to life in
prison. As a result of Jackson's strike priors, his sentence included two terms of 25
years to life for the residential burglary and robbery. The robbery sentence was
stayed pursuant to Penal Code section 654. Additionally, the court imposed a
sentence of five years for each serious felony prior (20 years total) and one year each
for Jackson's five prison priors. Four of the five prison prior terms were stayed.
Jackson's criminal history dates back to 1974 when he burglarized a home and
stole a .22 caliber pistol. Less than two years later, while being pursued for a purse
snatching incident, Jackson struck a police officer on the back of the head with an
unknown object, resulting in a concussion. In 1978, Jackson was convicted of
multiple burglary offenses. In 1980, he committed domestic violence against his
girlfriend and became violent when arrested. Between 1984 and 2002, Jackson had
additional theft-related convictions, including an incident where he forcefully stole a
wallet out of a man's pocket, causing the pocket to tear and the man to fall to the
ground, and an incident where Jackson grabbed a victim from behind while
instructing someone else to steal the victim's wallet.
Jackson contends that his sentence of 46 years to life constitutes cruel and
unusual punishment under the federal and California Constitutions because his
8 current and past offenses were driven by drug addiction and did not result in serious
harm to his victims. We reject this argument.
Under the California Constitution, punishment is disproportionate if it "shocks
the conscience" considering the offender's history and the seriousness of his offenses.
(In re Lynch (1972) 8 Cal.3d 410, 424.) In analyzing a disproportionality claim
under the state Constitution, we examine (1) "the nature of the offense and/or the
offender, with particular regard to the degree of danger both present to society" (id.
at p. 425), (2) the sentence compared to the sentences for more serious offenses in
California (id. at p. 426), and (3) the sentence compared to sentences for the same
offense in other states (id. at p. 427; see also People v. Dillon (1983) 34 Cal.3d 441,
479). If a particular punishment is proportionate to the defendant's individual
culpability, there is no requirement it be proportionate to the punishments imposed in
other similar cases. (People v. Webb (1993) 6 Cal.4th 494, 536.) Accordingly, a
determination of whether a punishment violates the state constitutional prohibition
against cruel and unusual punishment may be based solely on the offense and the
offender. (People v. Ayon (1996) 46 Cal.App.4th 385, 399.)
A defendant must overcome a considerable burden in order to establish that
the sentence is disproportionate to his level of culpability. Successful challenges to
proportionality are an "exquisite rarity." (People v. Weddle (1991) 1 Cal.App.4th
1190, 1196–1197.) Courts in a number of California cases have rejected claims that
sentences under the Three Strikes law violated the state Constitution's prohibition
against cruel or unusual punishment. (See, e.g., People v. Romero (2002) 99
9 Cal.App.4th 1418, 1431–1432 (Romero); People v. Cortez (1999) 73 Cal.App.4th
276, 286; People v. Askey (1996) 49 Cal.App.4th 381, 388.)
With regard to the first prong of the analysis, Jackson asserts that although he
has sustained numerous convictions, they were the result of his inability to control
his drug addiction and nobody was seriously harmed during the offenses. Jackson
argues that the offenses that resulted in harm to his victims took place more than 30
years ago and, since that time, his offenses do not reflect a continuing pattern of
violent behavior. Jackson downplays the significance of his long and serious
criminal history. In addition to the incidents where Jackson assaulted a police officer
and committed domestic violence against his girlfriend, he also harmed the
Broadhursts, forcefully stole a man's wallet causing the victim to fall to the ground,
and grabbed a victim from behind and held him while someone else stole the victim's
wallet. While the motivation for these crimes may have been to support Jackson's
drug addiction, they included force, fear and violence. Further, we note that there is
no indication that Jackson has attempted to address his destructive drug addiction.
Jackson's lengthy criminal history has not been deterred by parole and was
interrupted only by periods of incarceration. In addition to the nature of the current
offense, "recidivism is a legitimate factor to consider when imposing a greater
sentence than for a first time offense." (People v. Cuevas (2001) 89 Cal.App.4th
689, 704–705.) "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
10 sentences for subsequent offenses. [Citation.]" (People v. Cooper (1996) 43
Cal.App.4th 815, 823–824.) Despite his admitted drug addiction, Jackson has not
changed his behavior and has engaged in conduct resulting in harm to others to
support his addiction. While Jackson's sentence is harsh, it is not disproportionate to
his culpability. (People v. Stone (1999) 75 Cal.App.4th 707, 715 [25 years to life
sentence for a nonviolent drug offense is constitutional].) Although we find
Jackson's sentence was not disproportionate based on his current offenses and
criminal history, we nevertheless consider the other disproportionality factors.
Jackson next compares his punishment with punishments that are prescribed
for more serious crimes in California, including voluntary manslaughter, rape,
kidnapping and premeditated murder. He contends that he poses a lesser danger to
society than persons who commit those crimes. We reject Jackson's comparison of
his sentence under the Three Strikes law to the sentence for first degree murder or to
the sentences for other serious or violent crimes, in the absence of prior strikes. (See,
e.g., Romero, supra, 99 Cal.App.4th at p. 1433 [" ' "Because the Legislature may
constitutionally enact statutes imposing more severe punishment for habitual
criminals, it is illogical to compare [defendant's] punishment for his 'offense,' which
includes his recidivist behavior, to the punishment of others who have committed
more serious crimes, but have not qualified as repeat felons." [Citation.]'
[Citation.]"].)
Jackson also compares his sentence to recidivist punishments for similar
crimes in other jurisdictions, asserting that "[t]here appears to be no state besides
11 California with a recidivist statute requiring such mandatory application and lengthy
imprisonment regardless of mitigating circumstances." The fact " '[t]hat California's
punishment scheme is among the most extreme does not compel the conclusion that
it is unconstitutionally cruel or unusual. This state constitutional consideration does
not require California to march in lockstep with other states in fashioning a penal
code. It does not require "conforming our Penal Code to the 'majority rule' or the
least common denominator of penalties nationwide." [Citation.] Otherwise,
California could never take the toughest stance against repeat offenders or any other
type of criminal conduct.' " (Romero, supra, 99 Cal.App.4th at p. 1433, quoting
People v. Martinez (1999) 71 Cal.App.4th 1502, 1516.)
Accordingly, we reject Jackson's argument that his sentence constitutes cruel
and unusual punishment under California's Constitution. Similarly, we cannot say
that Jackson's Three Strikes sentence violates the federal Constitution based on his
present offenses and past recidivism. The Eighth Amendment of the federal
Constitution includes a narrow proportionality protection against grossly
disproportionate sentences, but the constitutional protection against such sentences
applies only in the " 'exceedingly rare' " and " 'extreme' " case. (Ewing v. California
(2003) 538 U.S. 11, 17–18, 20, 21, 29–30 (plur. opn. of O'Connor, J.) [affirming a
sentence of 25 years to life under the Three Strikes law for a recidivist who had
shoplifted golf clubs worth $1,200, and whose prior convictions were for theft, grand
theft of an automobile, burglary, robbery, and battery]; Lockyer v. Andrade (2003)
538 U.S. 63, 77 [two consecutive 25 years to life terms for two petty thefts not
12 grossly disproportionate].) In view of Jackson's current and past offenses and his
continuous criminal history, which has not been deterred, we conclude his sentence
is not grossly disproportionate to his crimes and does not shock the conscience.
Thus, Jackson's sentence does not constitute cruel and unusual punishment.
DISPOSITION
The judgment is affirmed.
MCINTYRE, J.
WE CONCUR:
HUFFMAN, Acting P. J.
MCDONALD, J.