People v. Jordan CA2/8 ( 2014 )

Filed 12/3/14 P. v. Jordan CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B249279
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA391352)
v.
ANTOINE DENELL JORDAN,
Defendant and Appellant.
APPEAL from the judgment of the Superior Court of Los Angeles County.
Edmund Willcox Clarke, Jr., Judge. Affirmed.
Carlo A. Spiga for Defendant and Appellant.
Kamala D. Harris, Attorney General, Lance E. Winters, Assistant Attorney
General, Margaret E. Maxwell, Douglas L. Wilson and Tannaz Kouhpainezhad, Deputy
Attorneys General, for Plaintiff and Respondent.
**********
In 1983, defendant and appellant Antoine Denell Jordan was convicted by jury of
26 separate felonies as a result of a notoriously violent crime spree which included rape,
kidnapping and robbery of women on and near the University of Southern California
campus in 1981. He was sentenced to 44 years in state prison. Shortly after he was
sentenced, defendant committed sodomy by force on another inmate and was convicted
of that felony in 1985. Defendant was released on parole in 2005. Because of his many
convictions of sex offenses, defendant was required to register as a sex offender pursuant
to the Sex Offender Registration Act (hereafter “Act”; Pen. Code, § 290 et seq.).1
Following his release, defendant twice committed parole violations and was
returned to prison, each time for a period of six months. Upon his release on the second
parole violation, defendant registered an address in Los Angeles as his residence. In late
2011, an officer with the Los Angeles Police Department discovered defendant had been
living for several years at different addresses, including one in Anaheim, and one in
Fullerton. Defendant had never registered the changes of address or the multiple
residences, or identified vehicles owned and registered by him at those addresses as
required under the Act. Defendant told the investigating officer he did not register those
addresses because he did not want his wife, who lived there, to be harassed as a result of
his status as a registered sex offender.
Defendant was thereafter charged with and convicted by jury of eight felony
violations of the Act. The court sentenced defendant as a third-strike offender to an
aggregate state prison term of 25 years to life, plus 16 months. Defendant contends his
sentence is grossly disproportionate to his present offenses which were merely regulatory
violations, and his sentence was based primarily on his past criminal record. Defendant
argues his sentence therefore violates the Eighth Amendment’s proscription against cruel
and unusual punishment and the double jeopardy clause of the Fifth Amendment.
1 All further undesignated section references are to the Penal Code.
2
Defendant further contends the trial court applied the incorrect legal standard, and abused
its discretion, in denying his Romero2 motion. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant has not raised a substantial evidence question. We therefore summarize
only those facts and procedural issues material to our discussion, as well as some
additional facts for context.
In 1983, defendant was convicted by jury of 26 felonies, including several rapes
and robberies against multiple victims, some involving the use of a deadly weapon. He
received a 44-year prison sentence. In 1985, defendant was convicted of one count of
sodomy by force arising from an assault on another inmate committed the day after he
received his 44-year sentence, for which he was sentenced to an additional three years.
Defendant was released from prison in 2005 on parole. In 2006, less than a year
after his release, defendant was arrested and given a six-month term for failing to attend
three sessions of a parolee outpatient program in violation of the terms of his parole.
Then, in 2008, defendant was again arrested for violating parole based on several
instances of violating curfew and for possession of sexually explicit material on his cell
phone. Defendant was given another six-month term.
Following his release, defendant registered an address on South 2nd Avenue in the
City of Los Angeles as his residence in February 2009, and thereafter re-registered that
address as his residence in November 2009 and November 2010. On each of those
occasions, defendant initialed the form acknowledging his obligation under the Act to
report changes of address and multiple residences.
On November 8, 2011, defendant went to the police station near his Los Angeles
address for his annual registration. Officer Bryan Swaim of the Los Angeles Police
Department Sex Crimes Unit met with defendant to complete the registration, as he had
in November of 2009 and 2010. Again, defendant registered only the Los Angeles
2 People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
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address, did not indicate he had moved or had multiple residences, and did not identify or
register any vehicles.
During the registration process, which included taking an updated photograph and
fingerprints of defendant, Officer Swaim noticed defendant was wearing a “really nice”
motorcycle jacket. He noticed defendant had never registered any vehicles in his name,
so he asked defendant about his means of transportation. Defendant said he was riding a
motorcycle that belonged to his brother. Officer Swaim went outside with defendant and
took a photograph of the motorcycle and its license plate number. When they went back
inside, Officer Swaim asked defendant again about the motorcycle. Defendant admitted
the motorcycle belonged to him.
After defendant completed the registration process and left the station, Officer
Swaim made some inquiries regarding the motorcycle. Officer Swaim discovered the
motorcycle was registered with the Department of Motor Vehicles (DMV) to defendant at
an address in the City of Fullerton which had never been registered by defendant. Upon
further investigation, Officer Swaim discovered the following additional information that
had never been disclosed by defendant to law enforcement during his annual registration
appearances or at any other time: a second motorcycle and two vehicles (a Chrysler and
a Chevrolet Suburban) registered with the DMV in defendant’s name at the Fullerton
address; a DMV disabled placard listing defendant’s Fullerton address; a cable television
account in defendant’s name at the Fullerton address; and another address listed with the
DMV in the City of Anaheim (apparently another former residence).
Officer Swaim contacted defendant and asked him to come back to the station to
discuss the new information. Defendant complied and, during an interview at the station,
conceded that he “split” his time between the Los Angeles address (his sister’s
apartment) and the Fullerton address. He said he kept some of his belongings at the
Fullerton address and received mail there. The vehicles were also registered to him at the
Fullerton address. Defendant said he did not report the Fullerton address because he did
not want people coming to the door and bothering his wife on account of his status as a
registered sex offender. Defendant explained he was in Fullerton every day but only
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slept there a couple nights a week. Defendant was arrested on multiple registration
violations.
After his arrest, defendant registered his Fullerton address with law enforcement in
the City of Fullerton on November 15, 2011.
In 2012, defendant was charged, by amended information, with three counts of
failure by a convicted sex offender to register multiple residences (§ 290.0103; counts 2,
5 and 7), two counts of failure by a convicted sex offender to file a change of address
(§ 290.013, subd. (a)4; counts 1 and 4), and three counts of failure by a convicted sex
offender to provide accurate registration information (§ 290.015, subd. (a)5; counts 3, 6
and 8).
As to all counts, it was specially alleged defendant had suffered 27 prior felony
convictions within the meaning of the “Three Strikes” law. (§§ 667, subds. (b)-(i),
1170.12, subds. (a)-(d).) The prior strikes included eight robberies (§ 211), one
attempted robbery (§§ 211, 664), one kidnapping (§ 207), five attempted kidnappings
(§§ 207, 664), three rapes (§ 261, subd. (a)(2)), two rapes in concert (§§ 261, subd. (a)(2),
3 Section 290.010 provides in relevant part: “If the person who is registering has
more than one residence address at which he or she regularly resides, he or she shall
register in accordance with the Act in each of the jurisdictions in which he or she
regularly resides, regardless of the number of days or nights spent there.”
4 Section 290.013, subdivision (a) provides in relevant part: “Any person who was
last registered at a residence address pursuant to the Act who changes his or her residence
address, whether within the jurisdiction in which he or she is currently registered or to a
new jurisdiction inside or outside the state, shall, in person, within five working days of
the move, inform the law enforcement agency or agencies with which he or she last
registered of the move.”
5 Section 290.015, subdivision (a) provides in relevant part: “A person who is
subject to the Act shall register, or reregister if he or she has previously registered, upon
release from incarceration, placement, commitment, or release on probation pursuant to
subdivision (b) of Section 290.” The statute also enumerates the information to be
disclosed during the registration process, including “the license plate number of any
vehicle owned by, regularly driven by, or registered in the name” of the registrant.
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264.1), five oral copulations (§ 288a), one attempted sodomy (§§ 286, 664) and one
sodomy (§ 286). It was further alleged defendant had suffered five prior prison terms.
(§ 667.5.) Defendant’s criminal history also included convictions for grand theft and
burglary in 1980 that were not alleged as qualifying strikes.
Defendant pled not guilty and denied the special allegations.
Trial by jury began in August 2012. Officer Swaim testified to the above facts,
and generally explained the registration process under the Act, including a sex offender’s
obligation to register on an annual basis or within five days of any change of address, and
to identify all locations used as a residence and vehicle information. The prosecution
called several neighbors who testified to regularly seeing defendant at the Anaheim
address for about a year, starting in 2009, including at a homeowners’ association
meeting. Defendant’s audiotaped interview with Officer Swaim was played for the jury.
Defendant’s wife, Carmen Jordan, testified for the defense. She stated defendant
resided at his registered Los Angeles address, which was his sister’s residence, but did
come over to her residence in Fullerton five days a week to help take care of their two
children while she worked. She said defendant would stay overnight sometimes on the
weekends. She explained that only she was on the lease agreement for the Fullerton
residence. She admitted defendant received his paychecks and some mail at the Fullerton
address, and that their vehicles were registered there. Mrs. Jordan also conceded that
when she was living at the Anaheim address, defendant stayed there on a similar
schedule. A mutual friend of defendant and his sister also testified that she regularly
visited (several times a week) at the Los Angeles address and knew defendant lived there.
She said defendant slept on a pullout bed in the living room, and was often around to help
her with appointments and other matters because she suffered from congestive heart
failure. Defendant did not testify in his own defense.
The jury found defendant guilty on all eight counts.
The bifurcated jury trial on the prior strikes and prison priors took place on
August 15, 2012. The jury found true that defendant had previously been convicted of 26
felonies within the meaning of the Three Strikes law, and had suffered five prison priors.
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The record is not clear why one of the attempted kidnapping priors alleged in the
information was not submitted to the jury for consideration.
The parties submitted lengthy sentencing memoranda and the court heard
argument over the course of two days, including a personal statement by defendant. The
court granted the prosecution’s motion to strike the prison priors and accepted the
prosecution’s stipulation that counts 2, 4, 5, 6 and 7 were properly stayed pursuant to
section 654.
The court sentenced defendant as a third-strike offender and imposed a 25-to-life
term on count 8, plus consecutive eight-month terms (one-third the midterm) on each of
counts 1 and 3. The court imposed and stayed eight-month terms on counts 2, 4, 5, 6 and
7. The court awarded defendant 941 days of custody credits, and imposed various fines
and fees.
This appeal followed.
DISCUSSION
Defendant raises three arguments challenging the sentence imposed by the court:
(1) the sentence violates the Eighth Amendment proscription against cruel and unusual
punishment; (2) the sentence violates the double jeopardy clause of the Fifth
Amendment; and (3) the court applied an incorrect legal standard in determining whether
it had the discretion to strike any prior convictions within the meaning of the Three
Strikes law, and otherwise abused its discretion in denying his Romero motion. We find
no error.
1. Eighth Amendment
Defendant contends his state prison sentence of 25 years to life, plus 16 months, is
grossly disproportionate to his present registration offenses in violation of the Eighth
Amendment proscription against cruel and unusual punishment. Defendant argues his
violations of the Act, while felonies, are victimless and essentially “regulatory” and, as
such, do not warrant a life sentence.
“The Eighth Amendment, which forbids cruel and unusual punishments, contains
a ‘narrow proportionality principle’ that ‘applies to noncapital sentences.’ [Citation.]”
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(Ewing v. California (2003) 538 U.S. 11, 20 (Ewing) [affirming sentence of 25 years to
life imposed on a third-strike offender convicted of felony grand theft for the theft of
$1,200 worth of merchandise].) The Eighth Amendment prohibits only a sentence that is
“grossly disproportionate” to the severity of the charged crime(s). (Ewing, at p. 21.)
Outside the context of a capital sentence, “ ‘successful challenges to the proportionality
of particular sentences have been exceedingly rare.’ [Citation.]” (Ibid.)
In arguing his life sentence is grossly disproportionate to the registration violations
of which he was convicted, defendant relies heavily on People v. Carmony (2005) 127
Cal.App.4th 1066 (Carmony II) and Gonzalez v. Duncan (9th Cir. 2008) 551 F.3d 875(Gonzalez).
However, Carmony II and Gonzalez are factually dissimilar. In Carmony II, the
defendant had registered his correct address just a month before his birthday, but then
failed to register again within five days of his birthday as required by the Act. There was
no change of information, and his parole officer and law enforcement had his correct
address and other information as required by the Act. The third-strike sentence was
found grossly disproportionate because the defendant “did not evade or intend to evade
law enforcement officers” and his violation of the Act was “technical and harmless.”
(Carmony II, supra, 127 Cal.App.4th at p. 1078.) Gonzalez involved a similar technical
violation, in which the defendant had continued to reside at his registered address, and
updated his information on an annual basis, but had not done so within five days of his
birthday. (Gonzalez, 551 F.3d at pp. 884-885.)
The facts here more squarely align with In re Coley (2012) 55 Cal.4th 524, in
which our Supreme Court rejected the defendant’s challenge to the imposition of a third-
strike sentence for an alleged “technical” violation of the registration requirements of the
Act, distinguishing both Carmony II and Gonzalez. “Some defendants—as in Carmony II
and Gonzalez—who have properly registered their current address and whose overall
conduct demonstrates a general good faith effort to comply with the sex offender
registration requirements may commit this offense through a mere negligent oversight
that does not adversely impact the fundamental purpose of the sex offender registration
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regime. Other defendants, however, may violate this statutory provision by intentionally
failing to update their sex offender registration within five working days of their
birthdays as part of a more general course of conduct that demonstrates a deliberate
general unwillingness to comply with the sex offender registration requirements. In
analyzing a cruel and unusual punishment challenge to a sentence imposed upon a
defendant convicted of this offense, a court may not simply look to the nature of the
offense in the abstract, but must take into consideration all of the relevant specific
circumstances under which the offense actually was committed.” (In re Coley, at p. 553,
italics added.)
The defendant in In re Coley was released on parole in January 2001, but failed to
register any address. The defendant reported a residential address to the DMV and was
arrested there in August 2001 for having failed to comply with the Act. (In re Coley,
supra, 55 Cal.4th at pp. 532-533.) Given the defendant’s lengthy criminal history, the
trial court imposed a third-strike sentence which the Supreme Court upheld. “Because
the trial court found [the defendant] deliberately failed to register as a sex offender even
though he knew he had an obligation to do so, [the defendant’s] triggering offense
demonstrated that, notwithstanding the significant punishment that he had incurred as a
result of his prior serious and violent felony convictions, [the defendant] was still
intentionally unwilling to comply with important legal requirements prescribed by the
state’s criminal laws. As a consequence, [the defendant’s] current criminal conduct and
conviction clearly bore a rational and substantial relationship to the antirecidivist
purposes of the Three Strikes law.” (In re Coley, at pp. 561-562.)
The court went on to explain that “in determining the gravity of [the defendant’s]
conduct in evaluating an Eighth Amendment challenge to a sentence imposed under a
recidivist sentencing statute, we must consider not only [the defendant’s] triggering
offense but also the nature and extent of [the defendant’s] criminal history. [Citation.] In
light of the particularly heinous nature of [the defendant’s] prior criminal activity
[citation], [the defendant’s] present offense—efectting a deliberate decision by [the
defendant’s] to refuse to comply with an important legal obligation—may properly be
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viewed as an indicator of potentially significant future dangerousness. Taking into
account both the circumstances of [the defendant’s] triggering offense and [the
defendant’s] very serious criminal history, we conclude that the 25-year-to-life sentence
imposed upon [the defendant] does not constitute cruel and unusual punishment in
violation of the Eighth Amendment.” (In re Coley, supra, 55 Cal.4th at p. 562, italics
added.)
We find defendant also made a deliberate decision to refuse to comply with his
registration obligations. Defendant intentionally did not register either the Fullerton or
Anaheim address where he stayed on a daily basis to care for his two children, ostensibly
because he did not want anyone to bother his wife about having a sex offender in the
home. It is undisputed he knew of his obligations under the Act, but for at least two
years, he deliberately registered only the Los Angeles address. He also did not provide
any information regarding four separate vehicles he owned and drove on a regular basis,
and lied to Officer Swaim when he was asked a direct question about his vehicle
ownership. When considered in conjunction with defendant’s significant and violent
criminal history, the imposition of a third-strike sentence does not offend the Eighth
Amendment. (In re Coley, supra, 55 Cal.4th at p. 562; accord, Ewing, supra, 538 U.S. at
p. 29 [In weighing the gravity of a habitual offender’s present offense, the court “must
place on the scales not only [the] current felony, but also [the offender’s] 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.”].)
2. Fifth Amendment
Defendant also contends his sentence is primarily intended to punish him a second
time for his past crimes and therefore violates the double jeopardy clause of the Fifth
Amendment.
Defendant’s sentence does not offend the double jeopardy clause. “Recidivism
has long been recognized as a legitimate basis for increased punishment.” (Ewing, supra,538 U.S. at p. 25.) The Supreme Court has repeatedly upheld state recidivism statutes
and “rejected double jeopardy challenges because the enhanced punishment imposed for
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the later offense ‘is not to be viewed as either a new jeopardy or additional penalty for the
earlier crimes,’ but instead as ‘a stiffened penalty for the latest crime, which is considered
to be an aggravated offense because a repetitive one.’ [Citations.]” (Witte v. United
States (1995) 515 U.S. 389, 400; accord, Monge v. California (1998) 524 U.S. 721, 728.)
Defendant’s sentence was not imposed as an additional penalty for prior crimes.
Defendant’s sentence is the statutorily prescribed enhanced sentence for his current
felonies which were properly considered aggravated offenses because of defendant’s
status as a recidivist with a lengthy and serious criminal history.
3. Romero Motion
Finally, defendant argues the trial court applied the wrong standard in ruling on his
Romero motion, and otherwise abused its discretion in refusing to grant defendant’s
motion, in whole or in part.
The record belies defendant’s contention the court used an incorrect legal standard
in denying his motion. Viewed in their totality, the court’s comments accurately reflect
the relevant standard articulated by the Supreme Court in both People v. Williams (1998)
17 Cal.4th 148 (Williams) and People v. Carmony (2004) 33 Cal.4th 367 (Carmony I). In
determining whether to grant or deny a Romero motion, the trial court “ ‘must consider
whether, in light of the nature and circumstances of [the defendant’s] 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.’ [Citation.] [¶] Thus, the three
strikes law not only establishes a sentencing norm, it carefully circumscribes the trial
court’s power to depart from this norm and requires the court to explicitly justify its
decision to do so. In doing so, the law creates a strong presumption that any sentence
that conforms to these sentencing norms is both rational and proper.” (Carmony I, at
pp. 377-378; accord, Williams, supra, at p. 161.)
Further, plaintiff has failed to show that in applying this standard, the trial court
abused its discretion. Our review of the court’s denial of defendant’s Romero motion “is
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subject to review under the deferential abuse of discretion standard.” (Carmony I, supra,
33 Cal.4th at pp. 374, 376.)
The trial court considered the “nature and circumstances of [defendant’s] present
felonies and prior serious and/or violent felony convictions, and the particulars of his
background, character, and prospects.” (Williams, supra, 17 Cal.4th at p. 161.) The
court found to defendant’s credit that he had assumed family responsibilities and made
efforts at employment since his release. He also noted defendant’s relative cooperation
with authorities, but qualified that his level of “candor” at some points in the process was
“subject to discussion.” The court also found the current offenses were notably less
serious than defendant’s prior violent felonies. As for the remoteness factor stressed by
defendant in his briefs, the court explained that the remoteness of his prior serious
felonies was “somewhat undercut” by the fact defendant had been incarcerated for more
than two decades.
As to aggravating factors, the court stated defendant unquestionably had a history
of numerous and “very violent” offenses, many involving the use of weapons. The prior
felonies occurred over a lengthy period of time, and consisted of “multiple predatory
crimes” inflicted on multiple victims, “followed by another violent sexual offense” that
occurred while defendant was in jail. We agree with the trial court’s assessment that:
“[I]t’s hard to picture a more adverse set of strikes.”
On the current charges, the court expressed its concern defendant had made
“misrepresentations” in statements to the media reporting on his prosecution under the
Act, including that he was trying to avoid the “hardship of registration,” that he had been
“sold out” by his lawyer on the earlier charges, that he had been “treated by the police
and the court system unfairly,” and that he was, in essence, a victim. The court found the
statements indicated defendant was remorseless. The court emphasized there was no
evidence defendant had expressed remorse for any of his crimes. The court stated that
“despite the mitigating factors in his favor, [defendant] does fall within the spirit of the
Three Strikes law.”
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The court plainly gave thoughtful consideration to the relevant criteria, and on
balance, found defendant fell squarely within the letter and spirit of the Three Strikes law.
We agree.
DISPOSITION
The judgment of conviction is affirmed.
GRIMES, J.
We concur:
RUBIN, Acting P. J.
FLIER, J.
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