People v. King

• Decision Date: 11 June 1993
• Docket Number: No. AO58038,AO58038
• Citation: 20 Cal.Rptr.2d 220,16 Cal.App.4th 567
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. James KING, Defendant and Appellant.

Page 220

20 Cal.Rptr.2d 220

16 Cal.App.4th 567

The PEOPLE, Plaintiff and Respondent, v. James KING, Defendant and Appellant.

No. AO58038.

Court of Appeal, First District, Division 1, California.

June 11, 1993.

Jeff Brown, Public Defender, Peter G. Keane, Chief Deputy Public Defender, Grace Lidia Suarez and Paul DeMeester, Deputy Public Defenders, City and County of San Francisco, San Francisco, for defendant and appellant.

Arlo Smith, Dist. Atty., and Celia E. Rowland, Asst. Dist. Atty., City and County of San Francisco; San Francisco, for plaintiff and respondent.

NEWSOM, Associate Justice.

Appellant was convicted following a jury trial of misdemeanor indecent exposure in violation of Penal Code section 314, subdivision 1. ¹ On appeal, he challenges that part of this sentence which requires him to register as a sex offender pursuant to section 290.

The evidence presented at trial shows that Renee Lepre (hereafter Renee) was working as a street artist in front of the Shreve's Building in San Francisco on March 16, 1991. At around 11 a.m., in a nearby "alleyway," she observed appellant "exposing himself and soliciting women...." As pedestrians passed the alleyway, appellant pointed to them and yelled: "Come and get some of this. Look at this. You need some of this." He also made other "lewd gestures" or comments "about sexual acts" to women who walked by the alley. As he yelled, appellant was "stroking his private parts," and had an "erection."

Renee looked unsuccessfully for a "security person" in Shreve's to report the incident, then returned to the street to "finish setting up" her display. As she was speaking with another street artist, Lynn Sunday (hereafter Lynn), appellant approached and said: "You missed it; you should have been there; you should have had some; oh, you missed it; you should have been there." The women moved across the street and away from appellant. Lynn and another woman went in search of a police officer, while Renee returned to her car to get her display.

Appellant followed Renee to her car and kept repeating, "I'm going to help you" as he was "pulling" and "tugging" on her jewelry display. Appellant appeared "hostile" to Renee, as though he might "attack" her. Lynn returned to Renee's location and asked if she could help. Appellant responded by stating: "You know what you need? You need your pussy licked...." Then he "swung around and left," striking a passing pedestrian as he did so.

Appellant walked rapidly away but was apprehended momentarily upon the arrival of the police. The women described appellant as "intimidating," "hostile" and "scary."

Appellant contends that the trial court violated the constitutional proscription against cruel and unusual punishment by imposing a registration requirement under section 290 for his misdemeanor conviction of indecent exposure. His argument is twofold: first, as a matter of law the mandatory sex offender registration requirement of section 290 constitutes cruel and unusual punishment when applied to a misdemeanor conviction of indecent exposure; second, even if we engage in a "case-by-case analysis," the evidence fails to support the trial court's finding that imposition of a registration requirement upon him was constitutional.

A penalty offends the proscription against cruel and unusual punishment when 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, 105 Cal.Rptr. 217, 503 P.2d 921 (hereafter Lynch ); In re DeBeque (1989) 212 Cal.App.3d 241, 248, 260 Cal.Rptr. 441.) "Whether a particular punishment is disproportionate to the offense is, of course, a question of degree. The choice of fitting and proper penalties is not an exact science, but a legislative skill involving an appraisal of the evils to be corrected, the weighing of practical alternatives, consideration of relevant policy factors, and responsiveness to the public will; in appropriate cases, some leeway for experimentation may also be permissible. The judiciary, accordingly, should not interfere in this process unless a statute prescribes a penalty 'out of all proportion to the offense' [citations], i.e., so severe in relation to the crime as to violate the prohibition against cruel or unusual punishment." (Lynch, supra, 8 Cal.3d at pp. 423-424, 105 Cal.Rptr. 217, 503 P.2d 921; People v. Kun (1987) 195 Cal.App.3d 370, 374, 240 Cal.Rptr. 564.)

"It is a defendant's burden to prove the punishment prescribed for his or her offense is unconstitutional. (People v. Wingo (1975) 14 Cal.3d 169, 174, 183 [121 Cal.Rptr. 97, 534 P.2d 1001].) Statutes prescribing punishments, as with other statutes, must be upheld unless they are clearly and unmistakably shown to be unconstitutional. [Citation.]" (People v. Almodovar (1987) 190 Cal.App.3d 732, 739, 235 Cal.Rptr. 616.)

A tripartite test has been established to determine whether a penalty offends the prohibition against cruel and unusual punishment. First, courts examine the nature of the offense and the offender, "with particular regard to the degree of danger both present to society." Second, a comparison is made of the challenged penalty with those imposed in the same jurisdiction for more serious crimes. Third, the challenged penalty is compared with those imposed for the same offense in other jurisdictions. (In re Reed (1983) 33 Cal.3d 914, 923, 191 Cal.Rptr. 658, 663 P.2d 216; Lynch, supra, 8 Cal.3d 410, 425-427, 105 Cal.Rptr. 217, 503 P.2d 921; People v. Hernandez (1985) 169 Cal.App.3d 282, 288, 215 Cal.Rptr. 166.) In undertaking this three-part analysis, we consider the "totality of circumstances" surrounding the commission of the offense. (People v. Dillon (1983) 34 Cal.3d 441, 479, 194 Cal.Rptr. 390, 668 P.2d 697; People v. Ladanio (1989) 211 Cal.App.3d 1114, 1120, 260 Cal.Rptr. 12; People v. Hernandez, supra, 169 Cal.App.3d at pp. 288-289, 215 Cal.Rptr. 166.)

Relying on In re Reed, supra, 33 Cal.3d 914, 191 Cal.Rptr. 658, 663 P.2d 216 (hereafter Reed ) and In re King (1984) 157 Cal.App.3d 554, 204 Cal.Rptr. 39 (hereafter King ), appellant maintains that imposition of a registration requirement for a misdemeanor violation of section 314, subdivision 1 is inherently cruel and unusual punishment, even without consideration given to the specific facts of the case or particular nature of the offender. In Reed, our high court declared that "insofar as section 290 requires ... registration of persons convicted under section 647(a), it is void under article I, section 17, of the California Constitution" as cruel and unusual punishment." (33 Cal.3d at p. 926, 191 Cal.Rptr. 658, 663 P.2d 216, emphasis added.) In King, the court, adhering to the decision in Reed, concluded: "[T]he continuing penalty of sex offender registration is out of all proportion to the crime of misdemeanor indecent exposure. Registration pursuant to section 290 cannot constitutionally be imposed as punishment for persons convicted of misdemeanors under section 314.1." (157 Cal.App.3d at p. 558, 204 Cal.Rptr. 39.)

We are not persuaded that Reed or King must be read as proscribing as cruel and unusual punishment mandatory sex offender registration in all cases of misdemeanor violations of sections 647, subdivision (a) and 314, subdivision 1, respectively. The established three-pronged test for cruel and unusual punishment has been characterized as a "flexible and progressive" approach rather than a rigid standard. (Reed, supra, 33 Cal.3d at p. 923, 191 Cal.Rptr. 658, 663 P.2d 216.) The three prongs or factors enumerated in Lynch are not absolute tests to be mechanically applied but serve only as guides. (People v. Wingo (1975) 14 Cal.3d 169, 179, 121 Cal.Rptr. 97, 534 P.2d 1001; In re DeBeque, supra, 212 Cal.App.3d at p. 249, 260 Cal.Rptr. 441; People v. Monroe (1985) 168 Cal.App.3d 1205, 1210, 215 Cal.Rptr. 51; People v. Williams (1980) 101 Cal.App.3d 711, 720, 161 Cal.Rptr. 830.) "The importance of each prong depends on the specific facts of each case and application of the first prong alone may suffice in determining whether a punishment is cruel and unusual. [Citation.]" (In re DeBeque, supra, 212 Cal.App.3d at p. 249, 260 Cal.Rptr. 441.) A determination that a punishment is disproportionate to the offense is "based on the facts." (People v. Weddle (1991) 1 Cal.App.4th 1190, 1197, 2 Cal.Rptr.2d 714.) "The 'techniques' to aid in determining proportionality call first for an examination of 'the nature of the offense and/or the offender, with particular regard to the degree of danger both present to society.' (In re Lynch, supra, 8 Cal.3d at p. 425 [105 Cal.Rptr. 217, 503 P.2d 921].) 'In conducting this inquiry, however, the courts are to consider not only the offense in the abstract--i.e., as defined by the Legislature--but also "the facts of the crime in question" [citation]--i.e., the totality of the circumstances surrounding the commission of the offense in the case at bar, including such factors as its motive, the way it was committed, the extent of the defendant's involvement, and the consequences of his acts.' (People v. Dillon, supra, 34 Cal.3d at p. 479 [194 Cal.Rptr. 390, 668 P.2d 697].)" (People v. Morales (1992) 5 Cal.App.4th 917, 930, 7 Cal.Rptr.2d 358.)

In both Reed and King, the particular facts relating to the defendants and their individual offenses were examined and found to comprise "minor" indiscretions. In Reed, the court observed that the defendant was "not the prototype of one who poses a grave threat to society; nor does his relatively simple sexual indiscretion place him in the ranks of those who commit more heinous registerable sex offenses." (33 Cal.3d at p. 924, 191 Cal.Rptr. 658, 663 P.2d 216; see also King, supra, 157 Cal.App.3d at p. 557, 204 Cal.Rptr. 39.) ²

We recognize that a statutory punishment may be cruel and unusual either on its face--or as applied to the particular ...