THE PEOPLE, Plaintiff and Respondent, v. MICHAEL XAVIER BELL, Defendant and Appellant.
No. B263022
Second Dist., Div. Eight
Sept. 29, 2016
865 | S238339
THE SUPREME COURT OF CALIFORNIA GRANTED REVIEW IN THIS MATTER (see Cal. Rules of Court, rules 8.1105(e)(1)(B), 8.1115(e)) January 11, 2017, S238339.
Christopher Hawthorne for Defendant and Appellant.
OPINION
RUBIN, J.—Michael Xavier Bell appeals from the judgment imposed after he was resentenced to a combined state prison term of 43 years to life for multiple violent acts, including robbery, rape, and assault with a firearm that occurred when he was 14, contending that his parole eligibility date at age 55 violates the equal protection and cruel and unusual punishment provisions of the state and federal Constitutions. We disagree and affirm the judgment.
FACTS
The lengthy, quoted portion of our statement of facts, including the first five footnotes, is taken verbatim from this court‘s first decision in this matter. (People v. Bell (July 31, 2003, B158891) [nonpub. opn.] (Bell I).) “Appellant‘s offenses occurred on the evening of December 10, 2000, nine days before his fifteenth birthday, at two homes on a block in Torrance where he had previously resided. Viewed in accordance with the governing rules of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206 [26 Cal.Rptr.2d 23, 864 P.2d 103]), the evidence showed that shortly after 6:00 p.m., appellant knocked on the door at the home of Locke Lane, Jr., a former neighbor and friend. Lane opened the door and found appellant standing with another young male.1 They asked if they could use the phone, and Lane admitted them, explaining that his father was using it. The three went into the living room, where Lane resumed playing games on a PlayStation that was attached to the television.
“Appellant‘s accomplice left to use the bathroom. When he returned, he held an automatic handgun to Lane‘s head, and told him to put the video gear on the bed. Lane put the game controller there, and the accomplice told appellant to throw a Nintendo system on the bed too, which he did. When Lane‘s 15-year-old brother appeared, appellant‘s accomplice placed the gun inside his jacket. The brother departed, and appellant and his accomplice unhooked the PlayStation. Appellant asked Lane where he could put it. Lane indicated a pillowcase, and appellant placed the two video game systems into it, together with some games.
“About an hour later, appellant and his accomplice rang the doorbell at the home of E.M. and her son, a few houses down the block. Appellant had previously lived in the house in back of Ms. M.‘s, and she recognized him. When Ms. M. answered the door, appellant and his accomplice asked if they could use her phone. She declined and closed the door, but it remained partly open. When she moved to shut it fully, Ms. M. saw appellant and his accomplice inside the house, the accomplice holding an automatic handgun. She demanded to know what they were doing, and they told her to shut up, one of them saying, ‘I‘m going to kill you.’ Appellant‘s accomplice pointed the gun at Ms. M.‘s eight-year-old son and told him not to scream. The accomplice demanded to know where Ms. M.‘s money was, and she informed him and told him to take it.
“Appellant then took the gun from his companion. He asked where the clip was, and the accomplice told him it was loaded. Appellant put the gun to Ms. M.‘s head, and told her that she was going to give him ‘head.’ He forced her into the kitchen, ripped open her sweater, and ordered her to remove her pants, which she did, along with her underwear. Appellant sat on a chair and made her unbuckle his pants and open them. Holding the gun to her head, he forced her mouth onto his penis. Ms. M. saw her son pressing his head into a pillow on a couch, as appellant had commanded. Appellant then made her lie on the floor, saying, ‘You‘re going to like this.’ He proceeded to rape her, then dismounted her and recommenced, the gun still at her head.
“During the acts, appellant‘s accomplice reappeared, stepped over appellant and Ms. M., and inquired if there were any ‘brewskies.’ Referring to Ms. M., appellant asked the accomplice if he wanted ‘some of this.’ The accomplice declined. Appellant eventually got up and went into Ms. M.‘s son‘s room. At that point, Ms. M. ran to the door in an attempt to escape, but the intruders caught up with her and pushed her onto the couch, where her son was sitting. Appellant‘s accomplice then took Ms. M. into the kitchen, saying ‘You‘re going to give me some head.’ He sat on the chair, opened his pants, and told her to put her mouth on his penis. She complied. He then told her to stand up and bend over the counter, and tried without success to penetrate her. After failing to do so with her seated on him, he ordered her to lie on the floor, got on top of her, and raped her, holding the gun to her head.
“Appellant‘s accomplice then asked to use Ms. M.‘s car, which was in her driveway, and she gave him the keys, telling him he could take it. Handing appellant the gun, he went out to the car. Appellant then took Ms. M., who was still naked, back into the kitchen, and raped her again. Ms. M. heard the car‘s horn honking, but appellant did not get off of her until his accomplice returned and told him, ‘C‘mon.’
“Appellant stated that they had to tie up Ms. M. and her son, and the accomplice said he would take her with him. He repeated this when appellant displayed a telephone with a cord that had been ripped from the wall. Ms. M. put on some clothes, as the accomplice directed. Appellant then told him not to forget the television in the son‘s room. The accomplice handed appellant the gun and got the TV.
“Appellant‘s accomplice walked outside, followed by Ms. M., who was ‘sandwiched’ close between him and appellant. They walked toward her car, which was now on the street with the engine running, at least 36 feet from the door they had exited. When the accomplice bent down to put the TV in the car, Ms. M. ran screaming down the street.3 A neighbor let her phone the police. When she returned home, the intruders were gone with her car, having left the television in the street.
“Ms. M. flagged down a police car that had responded to her call. Officers took her and her son to San Pedro Peninsula Hospital, where a sexual assault nurse examined her and took swab samples from her genital area, breasts, and mouth area. The examination disclosed vaginal lacerations, consistent with forcible intercourse. While at the hospital, Ms. M. identified appellant from a photographic display. She also identified him at trial.4 The next day, Ms. M. returned to her house and found that the bedrooms had been ransacked and numerous additional items of jewelry were missing.
“A Los Angeles police detective obtained oral swab samples from appellant, for DNA comparison with Ms. M.‘s samples. The forensic laboratory director at Cellmark Diagnostics testified that, upon analysis, the vaginal sample contained DNA consistent with appellant‘s, with a one-in-21-billion frequency, and that he was a possible donor to the breast sample.
“Appellant did not offer an affirmative defense. In closing argument, his attorney contested the sufficiency of the proof of kidnapping, which the information alleged both as a substantive offense and as an aggravating circumstance of the sexual offenses (
Bell was convicted of three counts of robbery (
PROCEDURAL HISTORY
This case has a long and complicated procedural history. In 2003, this court affirmed the judgment after modifying it in two respects: (1) by
On remand, Bell was resentenced to 54 years to life. He appealed and we reversed and remanded for resentencing because the trial court, and not the jury, determined the facts that supported a finding concerning certain aggravating factors that led to imposition of the upper term sentence as to one of the robbery counts, in violation of Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403, 124 S.Ct. 2531]. (People v. Bell (Feb. 10, 2005, B171066) [nonpub. opn.].)
The California Supreme Court granted review and transferred the matter back to us to reconsider our decision in light of People v. Black (2005) 35 Cal.4th 1238 [29 Cal.Rptr.3d 740, 113 P.3d 534], which affirmed the validity of California‘s sentencing scheme and its delegation to the trial court of factfinding power concerning sentence-related aggravating factors. We then affirmed the judgment. (People v. Bell (Jan. 30, 2006, B171066) [nonpub. opn.].)
In Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856, 127 S.Ct. 856], the United States Supreme Court overruled People v. Black, supra, 35 Cal.4th 1238, and held that California‘s sentencing scheme was unconstitutional because it permitted judges, not juries, to make factual findings concerning aggravating sentencing factors. Bell‘s case eventually made its way back to this court for reconsideration in light of Cunningham. We affirmed, concluding that even though the trial court erred, the error was harmless because no reasonable jury would have found that the robbery in count 2 had not involved great violence. (People v. Bell (Feb. 27, 2008, B171066) [nonpub. opn.].)
Following a series of decisions by the United States and California Supreme Courts that forbade life without parole sentences for juvenile non-homicide offenders, including sentences that did not offer the opportunity for parole within a meaningful portion of the offender‘s life span, Bell filed a habeas corpus petition with the trial court contending that his sentence of 54 years to life amounted to cruel and unusual punishment because it was a de facto sentence of life without parole. In response to that petition, the trial court resentenced Bell to a combined state prison term of 43 years to life, as follows: 25 years to life on one of the rape counts, and a determinate term of 18 years on the other counts. The trial court also ordered that Bell would become eligible for parole in December 2040, when he would be 55.
DISCUSSION
1. Principles Applicable to Determining Whether Punishment Is Cruel and Unusual
We begin our discussion with a review of the law of cruel and unusual punishment and recent decisional and statutory law regarding sentencing of juvenile defendants. We then turn to the points raised on appeal.
When considering a proportionality challenge to the length of a sentence under the Eighth Amendment to the United States Constitution, we consider all the circumstances of the case. We begin by comparing the gravity of the offense and the severity of the sentence. In the rare case where this threshold comparison leads to an inference of gross disproportionality, we then compare the defendant‘s sentence to the sentences received by offenders both in California and other jurisdictions. If this comparison bears out the initial assessment that the sentence is grossly disproportionate, then the sentence is cruel and unusual. (People v. Christensen (2014) 229 Cal.App.4th 781, 805–806 [177 Cal.Rptr.3d 712].)
Determining whether a sentence is cruel or unusual under
2. The Evolving Law Concerning Sentencing of Juvenile Offenders
In Graham, supra, 560 U.S. 48, the United States Supreme Court announced a categorical rule prohibiting life without parole (LWOP) sentences for minors who were convicted of non-homicide offenses. Graham‘s holding
In Miller v. Alabama (2012) 567 U.S. 460 [183 L.Ed.2d 407, 132 S.Ct. 2455] (Miller), the Supreme Court held that sentencing schemes that made LWOP sentences mandatory for juveniles who commit homicide offenses violated the Eighth Amendment‘s ban on cruel and unusual punishment. Under Miller, LWOP sentences are still permissible, but may be imposed on only the “‘rare juvenile offender whose crime reflects irreparable corruption.’ [Citations.]” (Miller, at p. 478 [132 S.Ct. at p. 2469].) This determination must be made as part of a sentencing scheme that requires trial courts to take into account the “distinctive (and transitory) mental traits and environmental vulnerabilities” of children. (Id. at p. 473 [132 S.Ct. at p. 2465].)
Mandatory LWOP sentences for juveniles “preclude[] consideration of [their] chronological age and its hallmark features—among them, immaturity, impetuosity, and failure to appreciate risks and consequences. It prevents taking into account the family and home environment that surrounds [them]—and from which [they] cannot usually extricate [themselves]—no matter how brutal or dysfunctional. It neglects the circumstances of the homicide offense, including the extent of [their] participation in the conduct and the way familial and peer pressures may have affected [them]. Indeed, it ignores that [they] might have been charged and convicted of a lesser offense if not for incompetencies associated with youth—for example, [their] inability to deal with police officers or prosecutors (including on a plea agreement) or [their] incapacity to assist [their] own attorneys.” (Miller, supra, 567 U.S. at p. 478 [132 S.Ct. at p. 2468].) Accordingly, trial court sentencing of juvenile homicide offenders must “take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.” (Id. at p. 480 [132 S.Ct. at p. 2469].)
In People v. Caballero (2012) 55 Cal.4th 262 [145 Cal.Rptr.3d 286, 282 P.3d 291] (Caballero), the California Supreme Court applied Graham to non-homicide juvenile offenders who receive a sentence which, although subject to the possibility of parole, is so long that it amounts to a de facto LWOP sentence. Under Caballero, the sentence for a juvenile non-homicide offender must provide a “meaningful opportunity to demonstrate [his] rehabilitation and fitness to reenter society in the future” and must take into
In response to Caballero, the Legislature enacted
3. Bell‘s Parole Eligibility Date Does Not Amount to Cruel and Unusual Punishment
Bell contends that his age 55 parole eligibility date is unconstitutionally cruel and unusual for three reasons: (1) it amounts to a de facto LWOP sentence because the possibility of parole comes too late to leave him with a meaningful life expectancy; (2) it is grossly disproportionate to the punishment for more serious crimes such as special circumstances murder because section 3051 requires a parole eligibility date at 25 years after incarceration for that offense, while he is not eligible for parole for 41 years; and (3) it did not adequately account for his horrific childhood, which was marked by abuse, neglect, and mental illness.7
Although a parole eligibility date must occur while a defendant has some meaningful life expectancy remaining, how much life expectancy that entails is somewhat of an open issue. (People v. Perez (2013) 214 Cal.App.4th 49, 57–58 [154 Cal.Rptr.3d 114] (Perez).) The Perez court held that an age 47 parole eligibility date could “by no stretch of the imagination” be considered a de facto LWOP sentence. (Id. at p. 58.) We believe that rationale applies to
As for Bell‘s disproportionality argument, he relies on In re Nuñez (2009) 173 Cal.App.4th 709 [93 Cal.Rptr.3d 242], where a 14 year old convicted of kidnapping for ransom received an LWOP sentence.8 Noting that the defendant could have received no more than 25 years to life had he committed murder instead, the Nuñez court held that the LWOP sentence was “among the rarest of the rare” because he was the only known offender under age 15 to receive an LWOP sentence throughout the nation. (Id. at p. 25.) The Nuñez court therefore reversed the LWOP sentence. (Id. at pp. 715, 726.)
Nuñez is inapplicable here. Bell did not receive an LWOP sentence: he was sentenced to 43 years to life with parole eligibility after 41 years at age 55. Bell committed multiple violent crimes of a horrific and devastating nature. He broke into the victim‘s home in order to commit rape, raped and robbed her at gunpoint in front of her eight-year-old son, and tried to kidnap her in order to facilitate his crimes. Even taking into account the admittedly unfortunate circumstances of Bell‘s childhood, we cannot say that his age 55 parole eligibility date makes this the “rarest of the rare” cases where the punishment is grossly disproportionate to the crimes he committed. We therefore conclude that Bell‘s sentence was not cruel and unusual under either the federal or California Constitutions.
4. Excluding One Strike Offenders from Section 3051 Was Not an Equal Protection Violation
Both the Fourteenth Amendment to the United States Constitution and
Although respondent contends that Bell has failed to meet this hurdle because violent rapists and special circumstances murderers are not similarly situated, we will assume for purposes of our analysis that the two groups are similar, consisting of violent juvenile offenders. We apply different levels of scrutiny to different types of classifications. (Wilkinson, supra, 33 Cal.4th at p. 836.) Relying on People v. Olivas (1976) 17 Cal.3d 236 [131 Cal.Rptr. 55,
Noting that personal liberty was a fundamental right, the Olivas court applied the strict scrutiny test to strike down a sentencing scheme that allowed juvenile wards to be held in custody beyond the maximum term of imprisonment for the crime they committed. (Olivas, supra, 17 Cal.3d at p. 238.) We believe Olivas is not applicable here. As the Supreme Court has noted, Olivas concerned only the maximum term for which a juvenile offender could be held, and was inapplicable where the issue was “the method by which he may obtain release prior to expiration of the full term imposed.” (People v. Austin (1981) 30 Cal.3d 155, 162 [178 Cal.Rptr. 312, 636 P.2d 1] [juvenile wards not entitled to sentence reduction by way of conduct credits applicable to state prison inmates].)
The court in Wilkinson, supra, 33 Cal.4th 821, clarified Olivas‘s limited reach. The defendant in Wilkinson was convicted of battery on a custodial officer (
Therefore, because the purported statutory disparity does not implicate a suspect class or fundamental right, we apply the deferential rational basis test when examining the Legislature‘s sentencing choice. (Johnson v. Department of Justice (2015) 60 Cal.4th 871, 881 [183 Cal.Rptr.3d 96, 341 P.3d 1075] (Johnson); Wilkinson, supra, 33 Cal.4th at p. 838.) This standard does not depend on whether the Legislature ever actually articulated its purpose, and the underlying rationale need not be empirically substantiated. While the realities of the subject matter cannot be completely ignored, we may engage in “‘rational speculation‘” as to the justifications for the Legislature‘s decision, even if our assumption has no foundation in the
When applying the rational basis test, “‘we must accept any gross generalizations and rough accommodations that the Legislature seems to have made.’ [Citation.] ‘A classification is not arbitrary or irrational simply because there is an “imperfect fit between means and ends,“’ [citation], or ‘because it may be “to some extent both underinclusive and overinclusive.“’ [Citation.]” (Johnson, supra, 60 Cal.4th at p. 887.) “At bottom, the Legislature is afforded considerable latitude in defining and setting the consequences of criminal offenses.” (Ibid.)
The Johnson court employed this test to overrule its earlier decision in People v. Hofsheier (2006) 37 Cal.4th 1185 [39 Cal.Rptr.3d 821, 129 P.3d 29] (Hofsheier), which held that a mandatory sex offender registration requirement applicable to those who orally copulate minors (
The Johnson court disagreed with Hofsheier that there could be no plausible explanation for having discretionary sex offender registration for the crime of intercourse with a minor and mandatory sex offender registration for those who orally copulated minors. First, it cited studies showing that sex offenders could more easily manipulate minors into having oral sex instead of intercourse. As a result, the Legislature could have plausibly assumed that those sexual predators had more opportunities to reoffend. (Johnson, supra, 60 Cal.4th at pp. 883–884.) Second, legislative concerns over the costs of supporting children born to underage mothers might also have motivated the Legislature to permit discretionary registration of intercourse sex offenders to prevent interference with the father‘s “employment opportunities and the support of children conceived as a result of unlawful intercourse . . . .” (Id. at pp. 885–886.)
Bell contends there can be no rational basis for treating him more severely than a juvenile who commits the far more serious crime of special circumstances murder, especially in light of the Department of Corrections and Rehabilitation, 2010 Juvenile Justice Outcome Report (the Department of Corrections report), showing that juvenile sex offenders recidivate far less often than those who commit other crimes. Respondent contends a rational basis exists for the Legislature‘s decision to exclude one strike rapists from the mandatory minimum parole eligibility requirements of section 3051
We believe the threat of recidivism gives rise to a rational basis for the Legislature‘s decision to exclude one strike offenders from section 3051. We begin by noting that three strikes offenders were also excluded from section 3051. Because the three strikes law is geared toward repeat offenders, we believe the statutory scheme suggests that the Legislature had recidivism in mind when it excluded one strike offenders.
We also find persuasive that the Legislature has enacted several comprehensive statutory schemes that all seem to focus on the Legislature‘s concerns over recidivism by those who commit violent sex offenses. The Sexually Violent Predators Act (
As we see it, the Legislature believes that most sex offenders pose a recidivism risk. We believe the Legislature had that concern in mind when it excluded one strike offenders such as Bell from the reach of section 3051, and that the risk of recidivism provides a rational basis for doing so.
Bell relies on the Department of Corrections report to show that juvenile rapists have a low recidivism rate. That report examined recidivism among juvenile offenders, including those who committed violent non-sex offenses, violent sex offenses, and other less serious crimes. Although the Department
Based on this, and given the deferential standard we must apply, we cannot say that the Legislature lacked a rational basis for its sentencing choice.
DISPOSITION
The judgment is affirmed.
Bigelow, P. J., and Grimes, J., concurred
Appellant‘s petition for review by the Supreme Court was granted January 11, 2017, S238339.