Filed 12/3/14 P. v. Jordan CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE,
Plaintiff and Respondent,

v.
ANTOINE DENELL JORDAN,
Defendant and Appellant. B249279
(Los Angeles County Super. Ct. No. BA391352)

APPEAL from the judgment of the Superior Court of Los Angeles County. Edmund Willcox Clarke, Jr., Judge. Affirmed.

Carlo A. Spiga for De fendant 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 Pl aintiff and Respondent.

* * * * * * * * * *2 In 1983, defendant and appellant Antoin e Denell Jordan was convicted by jury of 26 separate felonies as a result of a notorious ly 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 y ears 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 releas ed on parole in 2005. Because of his many convictions of sex offenses, defendant was requi red to register as a sex offender pursuant to the Sex Offender Registration Act (hereaf ter “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 addre ss in Los Angeles as his residence. In late 2011, an officer with the Lo s Angeles Police Department di scovered defendant had been living for several years at different addre sses, including one in Anaheim, and one in Fullerton. Defendant had ne ver registered the changes of address or the multiple residences, or identified vehi cles owned and registered by him at those addresses as required under the Act. Defendant told the in vestigating officer he did not register those addresses because he did not want his wife, w ho 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. De fendant contends his sentence is grossly disproportionate to his pr esent offenses which were merely regulatory violations, and his sentence was based primarily on his past criminal record. Defendant argues his sentence therefore violates the Ei ghth Amendment’s proscription against cruel and unusual punishment and the double je opardy clause of the Fifth Amendment.

1 All further undesignated section references are to the Penal Code.3 Defendant further contends the trial court app lied the incorrect legal standard, and abused its discretion, in denying his Romero 2 motion. We affirm. FACTUAL AND PROCED URAL BACKGROUND Defendant has not raised a substantial evidence question. We therefore summarize only those facts and procedural issues mate rial 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 aris ing from an assault on another inmate committed the day after he received his 44-year sentence, fo r 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 a nd 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 possessi on of sexually explicit material on his cell phone. Defendant was given another six-month term. Following his release, defe ndant registered an address on South 2nd Avenue in the City of Los Angeles as his residence in Febr uary 2009, and thereaft er re-registered that address as his residence in November 20 09 and November 2010. On each of those occasions, defendant initialed the form ackno wledging his obligation under the Act to report changes of address and multiple residences. On November 8, 2011, defendant went to the police station n ear his Los Angeles address for his annual registration. Offi cer 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 ).4 address, did not indicate he ha d moved or had multiple reside nces, and did not identify or register any vehicles. During the registration process, which in cluded 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 tran sportation. Defendant said he was riding a motorcycle that belonged to his brother. O fficer 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 de fendant again about the moto rcycle. Defendant admitted the motorcycle belonged to him. After defendant completed the registrati on 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 Fu llerton which had never been regi stered by defendant. Upon further investigation, Officer Swaim discovere d the following additional information that had never been disclosed by defendant to la w enforcement during his annual registration appearances or at any other time: a second mo torcycle 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 defenda nt’s Fullerton address; a cable television
account in defendant’s name at the Fullerton address; and an other address listed with the DMV in the City of Anaheim (apparen tly another former residence). Officer Swaim contacted defendant and aske d him to come back to the station to discuss the new information. Defendant complie d 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 ad dress. He said he kept so me 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 Fulle rton 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 explai ned he was in Fullert on every day but only5 slept there a couple nights a week. Defenda nt was arrested on multiple registration violations. After his arrest, defendant registered hi s Fullerton address with law enforcement in the City of Fullerton on November 15, 2011. In 2012, defendant was charged, by amen ded information, with three counts of failure by a convicted sex offender to re gister multiple residences (§ 290.010 3 ; 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 registrati on information (§ 290.015, subd. (a) 5 ; counts 3, 6 and 8). As to all counts, it was specially allege d defendant had suffered 27 prior felony convictions within the meani ng of the “Three Strikes” law. (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d).) The prior strike s included eight robberies (§ 211), one attempted robbery (§§ 211, 664), one kidnap ping (§ 207), five attempted kidnappings (§§ 207, 664), three rapes (§ 2 61, subd. (a)(2)), two rapes in concert (§§ 261, subd. (a)(2),

3 Section 290.010 provides in relevant par t: “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 ju risdictions in which he or she regularly resides, regardless of the numbe r 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 pursuan t to the Act who changes his or her residence address, whether within the jurisdiction in whic h he or she is currently registered or to a new jurisdiction inside or outsid e the state, shall, in person, within five working days of the move, inform the law enfo rcement 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, plac ement, commitment, or releas e on probation pursuant to subdivision (b) of Section 290.” The statut e 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 re gistered in the name” of the registrant.6 264.1), five oral copulations (§ 288a), one attempted sodomy (§§ 286, 664) and one sodomy (§ 286). It was further alleged defendant had su ffered five prior prison terms. (§ 667.5.) Defendant’s criminal history al so included convictions for grand theft and burglary in 1980 that were not alle ged as qualifying strikes. Defendant pled not guilty and deni ed the special allegations. Trial by jury began in August 2012. O fficer Swaim testified to the above facts, and generally explained the re gistration process under the Act, including a sex offender’s obligation to register on an annual basis or with in five days of any change of address, and to identify all locations used as a residenc e and vehicle information. The prosecution called several neighbors who testified to regularly seeing defenda nt at the Anaheim address for about a year, starting in 2009, including at a homeowners’ association meeting. Defendant’s audiotap ed interview with O fficer Swaim was played for the jury. Defendant’s wife, Carmen Jordan, testifie d 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 da ys a week to help take care of their two children while she work ed. She said defendant would stay overnight sometimes on the weekends. She explained that only she wa s on the lease agreement for the Fullerton residence. She admitted defendant received hi s paychecks and some mail at the Fullerton address, and that their vehicles were register ed 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 Ange les address and knew defe ndant 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 te stify in his own defense. The jury found defendant gu ilty on all eight counts. The bifurcated jury tria l on the prior strikes and pr ison priors took place on August 15, 2012. The ju ry 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.7 The record is not clear why one of the a ttempted kidnapping priors alleged in the information was not submitted to the jury for consideration. The parties submitted le ngthy sentencing me moranda and the court heard argument over the course of two days, incl uding a personal statement by defendant. The court granted the prosecution’s motion to st rike 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-t hird 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 defend ant 941 days of custody cred its, and imposed various fines and fees. This appeal followed. DISCUSSION
Defendant raises three ar guments challenging the sentence imposed by the court: (1) the sentence violates th e Eighth Amendment proscriptio n against cruel and unusual punishment; (2) the sentence violates the double jeopardy clause of the Fifth Amendment; and (3) the court applied an incorr ect legal standard in determining whether it had the discretion to strike any prior co nvictions 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 regist ration offenses in violation of the Eighth Amendment proscription agains t cruel and unusual punishme nt. Defendant argues his violations of the Act, while felonies, are vict imless 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 ‘app lies to noncapital sentences.’ [Citation.]”8 ( Ewing v. California (2003) 538 U.S. 11, 20 ( Ewing ) [affirming sentence of 25 years to life imposed on a third-strike offender convic ted of felony grand theft for the theft of $1,200 worth of merchandise].) The Eighth Am endment prohibits only a sentence that is “grossly disproportionate” to the seve rity of the charged crime(s). ( Ewing, at p. 21.) Outside the context of a capita l sentence, “ ‘successful cha llenges to the proportionality of particular sentences have been exceedingly rare.’ [Citation.]” ( Ibid .) In arguing his life sentence is grossly disp roportionate 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 hi s birthday, but then failed to register again within five days of his birthday as required by the Act. There was no change of information, an d 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 defe ndant “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 defenda nt had continued to reside at his registered address, and updated his information on an annual basis, but had not done so with in 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 defend ant’s challenge to the imposition of a thirdstrike sentence for an alleged “technical” viola tion 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 w ith the sex offender registration requirements may commit this o ffense through a mere negligent oversight that does not adversely impact the fundamen tal purpose of the sex offender registration9 regime. Other defendants, however, may violat e this statutory provis ion by intentionally failing to update their sex offender regist ration within five working days of their birthdays as part of a more ge neral course of conduct that demonstrates a deliberate general unwillingness to co mply 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 offe nse 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 reporte d 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 de fendant’s lengthy criminal history, the trial court imposed a third-strike sentence which the Supreme Court upheld. “Because the trial court found [the defendant] deliberat ely failed to register as a sex offender even though he knew he ha d an obligation to do so, [the defendant’s] triggering offense demonstrated that, notwithstanding the signifi cant punishment that he had incurred as a result of his prior serious and violent felo ny convictions, [the defendant] was still intentionally unwilling to comp ly with important legal re quirements prescribed by the state’s criminal laws. As a consequence, [the defendant’s] current criminal conduct and conviction clearly bore a rational and substa ntial 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 de termining the gravity of [the defendant’s] conduct in evaluating an Eighth Amendment challenge to a sentence imposed under a recidivist sentencing statute, we must c onsider 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 be10 viewed as an indicator of poten tially significant future dangerousness . Taking into account both the circumstances of [the de fendant’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 a nd 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 intentiona lly did not register e ither the Fullerton or Anaheim address where he stayed on a daily ba sis to care for his tw o children, ostensibly because he did not want anyo ne to bother his wife about having a sex offender in the home. It is undisputed he knew of his ob ligations 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 vehicl es he owned and drove on a regular basis, and lied to Officer Swaim when he was as ked a direct question about his vehicle ownership. When considered in conjunctio n 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 woul d fail to accord proper deference to the policy judgments that find expression in th e 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 violat es the double jeopardy clause of the Fifth Amendment.
Defendant’s sentence does not offend th e 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 re peatedly upheld state recidivism statutes and “rejected double jeopardy challenges beca use the enhanced punishment imposed for11 the later offense ‘is not to be viewed as eith er 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 pres cribed enhanced sentence for his current felonies which were properly considered aggravated offenses because of defendant’s status as a recidivist with a lengt hy and serious criminal history. 3. Romero Motion Finally, defendant argues the trial court ap plied the wrong standard in ruling on his
Romero motion, and otherwise abused its disc retion 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 to tality, 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 circumstance s of [the defendant’s] present felonies and prior serious and/or violent felony convicti ons, 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 treat ed as though he had not previously been convicted of one or more serious and/or violen t felonies.’ [Citation.] [¶] Thus, the three strikes law not only establishes a sentencing norm, it carefully ci rcumscribes 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 cr eates a strong presumption that any sentence that conforms to these sentencing nor ms 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 sta ndard, the trial court abused its discretion. Our review of the court’s denial of defendant’s Romero motion “is12 subject to review under the deferentia l abuse of discretion standard.” ( Carmony I , supra , 33 Cal.4th at pp. 374, 376.) The trial court considered the “nature a nd circumstances of [defendant’s] present felonies and prior serious and/or violent fe lony 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 f ound the current offens es were notably less serious than defendant’s prior violent feloni es. As for the remoteness factor stressed by defendant in his briefs, the court explaine d 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 st ated defendant unquestionably had a history of numerous and “very violent” offenses, ma ny involving the use of weapons. The prior felonies occurred over a lengt hy period of time, and consis ted of “multiple predatory crimes” inflicted on multiple victims, “follo wed by another violent sexual offense” that occurred while defendant was in jail. We agre e 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 e xpressed 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 registratio n,” that he had been “sold out” by his lawyer on the earlier charge s, 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 remors eless. The court emphasized there was no evidence defendant had expresse d remorse for any of his crimes. The court stated that “despite the mitigating factors in his favor, [defendant] does fall with in the spirit of the Three Strikes law.”13 The court plainly gave thoughtful consid eration to the relevant criteria, and on balance, found defendant fell squarely within th e 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.