Filed 5/31/13 P. v. Horton CA4/1
                     NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                   COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                          STATE OF CALIFORNIA



THE PEOPLE,                                                            D061799

         Plaintiff and Respondent,

         v.                                                            (Super. Ct. No. SCN278129)

TIMOTHY RODERICK HORTON,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Daniel

B. Goldstein, Judge. Affirmed.

         Donna L. Harris, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Joy

Utomi, Deputy Attorneys General, for Plaintiff and Respondent.



         Timothy Roderick Horton pleaded guilty to failure to register as a sex offender

within five days of changing his residence address. He also admitted the truth of five
felony offenses that qualified as strike priors. The trial court sentenced Horton to an

indeterminate term of 25 years to life. Horton asserts the trial court erred in refusing

to strike all five of his prior strike convictions or at least four of them, and claims that

the resulting sentence of 25 years to life is cruel and unusual. He also asserts the

abstract of judgment must be corrected and an amended abstract prepared to reflect

that the trial court ordered certain fines be stayed. We reject Horton's contentions and

affirm the judgment.

                                      DISCUSSION

                          I. Motion to Strike Prior Convictions

A. Horton's Criminal History

       In 1980, when Horton was 22 years old, he received a six-year prison sentence

after being convicted of rape, forcible oral copulation, assault and kidnapping. Horton

had been drinking in a bar where the victim worked as a dancer. He hid in the back of

the victim's van until she got off work. He put a tire iron to the victim's throat and

forced her to drive to Balboa Park. After forcing the victim to disrobe, he raped her

for about five minutes. When the victim did not respond to his kiss, Horton slapped

her face, bound, gagged and blindfolded her. He then forced her legs apart and orally

copulated her. Horton lit several matches, let them burn near the victim's vagina and

then digitally penetrated her. The attack stopped when a park worker came by to

investigate the van.

       In 1985, about three years after being paroled, Horton went to a party with

another victim. As he drove the victim home, Horton began making sexual advances

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towards her. When the victim protested, he hit her, stabbed her in the neck with a pen

and ripped off her shirt. After parking the car, Horton forced the victim to disrobe,

tightened a belt around her neck and then forced her to orally copulate him. He also

digitally penetrated her, placed an object into her vagina and threatened to kill her if

she did not cooperate. He eventually drove the victim back to her car. The victim left

and reported the incident to a police officer. Horton received a 15-year prison term

after being convicted of forcible oral copulation, penetration with a foreign object and

false imprisonment.

       In 1985, Horton repeatedly raped a woman at knifepoint, choked her and

threatened to kill her. A hospital examination of the victim revealed injuries consistent

with her description of the assault, but Horton was never charged for this offense

because law enforcement lost contact with the victim.

B. Motion to Strike Hearing

       Horton requested that the trial court strike his prior strike convictions and

sentence him to probation or the middle term of two years. Defense counsel pointed

out that after being released from prison in 1993, Horton maintained sobriety and

successfully completed parole in 1996. Other than the conviction in this matter and a

traffic infraction, Horton suffered no other convictions since he was released from

prison about 18 years ago. Horton is married, lived with his wife and stepgrandson,

and was employed as a tow truck driver for years. Horton claimed that his

stepgrandson had been ostracized where they previously lived and that he did not



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register his new address to protect his stepgrandson and family from the stigma

associated with the registration requirement.

       Horton has "COPD" with half of his lung function, has suffered five heart

attacks and has two occluded vessels beyond repair. A psychological evaluator

concluded that Horton did not meet the diagnostic criteria for paraphilia, that he was

not at substantial risk for sexual reoffense and posed a low risk of violence towards

others. The People opposed the motion and, after pointing out several other factors,

requested that Horton be sentenced to 25 years to life in prison.

       At the hearing, the trial court heard statements from Horton and Horton's

stepgrandson. After hearing argument from the prosecutor, the trial court noted that it

read the probation report and that it needed to weigh the seriousness of the prior strike

offenses, the amount of time between these offenses and the current offense, and

whether the sentence imposed offends equal protection and due process. The court

stated that Horton was "slippery" about registering and that this weighed "heavily"

because the community and law enforcement did not have notice of his whereabouts.

It then commented that because the case was charged with one count, the maximum

sentence if it struck four strikes would be six years—the aggravated term doubled, and

if it did not strike four strikes, the mandatory sentence was 25 years to life. However,

based on Horton's history, it was not willing to strike four strikes and there was "no

point" in striking one or two strikes. Accordingly, the trial court declined to strike the

strike priors and imposed a sentence of 25 years to life.



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C. Analysis

       Horton contends that the trial court abused its discretion in refusing to strike his

prior strike convictions because his offenses, background, character and prospects

demonstrate that he is outside the spirit of the Three Strikes law.

       A trial court has limited discretion to strike prior convictions in Three Strikes

cases (Pen. Code, § 1385; People v. Superior Court (Romero) (1996) 13 Cal.4th 497,

530) and we will not disturb the trial court's ruling absent an abuse of that discretion

(People v. Gillispie (1997) 60 Cal.App.4th 429, 434). (Undesignated statutory

references are to the Penal Code.) In reviewing under this standard, we are guided by

two principles. First, the party attacking the sentence must clearly show that the

sentencing decision was irrational or arbitrary. (People v. Carmony (2004) 33 Cal.4th

367, 376–377 (Carmony).) Without such a showing, we presume that the trial court

acted to achieve legitimate sentencing objectives and we will not set aside its

discretionary determination to impose a particular sentence. (Ibid.) Second, we are

not authorized to substitute our judgment for the judgment of the trial court and we

will not reverse the trial court's decision merely because reasonable people might

disagree. (Ibid.)

       A trial court abuses its discretion for failing to strike a prior strike only in very

"limited circumstances." (Carmony, supra, 33 Cal.4th at p. 378.) These limited

circumstances include a showing that the trial court was unaware of its discretion to

strike, the trial court considered impermissible factors, or where the trial court's



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mechanical application of the statute yields " 'an "arbitrary, capricious or patently

absurd" result'. . . ." (Ibid.)

       Applying these principles, the trial court did not abuse its discretion. Horton

has made no showing of the use of improper reasons by the trial court, i.e., a

misunderstanding of the power to strike or the use of an inappropriate reason. (See

Carmony, supra, 33 Cal.4th at p. 378.) Moreover, Horton has not shown that the trial

court made an arbitrary, capricious or patently absurd decision.

       In arguing that the trial court abused its discretion in refusing to strike his prior

convictions, Horton argues the same factors he raised below, namely: the five prior

offenses involved two incidents within one period of aberrant behavior; the present

offense did not involve violence, physical harm or monetary damage; he has a family

and had been gainfully employed for about 19 years; and a psychologist did not

consider him dangerous.

       As the trial court acknowledged, Horton's prior convictions were "severe." In

2010, Horton's employer fired him for using a company credit card to purchase

pornography and a company computer to access adult Web sites and send e-mails

soliciting sex. Additionally, while out on bail for the current offense and subject to the

condition prohibiting association with minors, Horton violated the condition by being

alone with minors on several occasions. Moreover, Horton's failure to register

spanned a number of years and was intentional.

       Given that Horton has five prior strike convictions, the trial court would have

needed to strike four of the strike priors to make any difference in Horton's sentence.

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The trial court expressly considered this option and rejected it. While reasonable

minds could differ, we cannot say that the trial court's refusal to strike Horton's prior

strike convictions was irrational, arbitrary or patently absurd. (Carmony, supra, 33

Cal.4th at p. 378.) Accordingly, the trial court did not abuse its discretion.

                         II. Cruel and/or Unusual Punishment

       Horton contends that his sentence of 25 years to life for the current offense

constitutes cruel and unusual punishment under the federal and California

Constitutions because it is effectively a sentence of life without parole and thus is cruel

and unusual as applied to him. (U.S. Const., 8th Amend. [prohibits infliction of "cruel

and unusual" punishment]; Cal. Const., art. I, § 17 [prohibits infliction of "[c]ruel or

unusual" punishment].) Horton asserted in his motion to dismiss a strike that a life

term should not be imposed; however, he never objected that such a sentence would

constitute cruel and unusual punishment, nor did he raise this objection at the

sentencing. (People v. Norman (2003) 109 Cal.App.4th 221, 229.) In any event, we

exercise our discretion to consider his contention on its merits to avoid a claim of

ineffectiveness of counsel. (Id. at p. 230.)

       Generally, the Eighth Amendment prohibits only those sentences that are

grossly disproportionate to the crime. (Ewing v. California (2003) 538 U.S. 11, 23–24

(Ewing).) Similarly, the California Constitution is violated when the punishment "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, fn. omitted (Lynch).) Lengthy prison sentences imposed under a recidivist

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statute have long survived scrutiny under both Constitutions. (See, e.g., In re

Rosencrantz (1928) 205 Cal. 534, 539–540; People v. Weaver (1984) 161 Cal.App.3d

119, 125.)

       We examine three factors to determine whether a sentence is proportionate to

the offense and the defendant's circumstances such that it does or does not constitute

cruel and unusual punishment: (1) the gravity of the offense and the harshness of the

penalty; (2) sentences imposed for other crimes in the same jurisdiction; and

(3) sentences imposed for the same crime in other jurisdictions. (Ewing, supra, 538

U.S. at p. 22; Lynch, supra, 8 Cal.3d at pp. 425–427 [comparable three-prong test].)

Here, Horton contends his punishment is unconstitutional as applied to him and has

thus limited his argument to the first factor identified in Lynch—the nature of the

offense and the offender.

       In In re Coley (2012) 55 Cal.4th 524 (Coley), our high court recently addressed

whether a defendant convicted of failing to update his sex offender registration

received cruel and unusual punishment when sentenced to 25 years to life under the

Three Strikes law. (Id. at p. 530.) The Coley court recognized that the sentence

actually imposed under the Three Strikes law is frequently dependent upon the trial

court's exercise of discretion in determining whether to strike any of the serious or

violent prior convictions (id. at pp. 559–560) and that it is appropriate to rely upon the

trial court's reasons and findings in evaluating such a claim. (Id. at pp. 560–561.)

Significantly, our high court noted the trial court's finding that the defendant



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"deliberately failed to register as a sex offender even though he knew he had an

obligation to do so." (Id. at p. 561.)

       Similarly here, Horton admitted that he intentionally failed to register.

Although he claimed that his intent was not to deceive or defy the police or the courts,

his willful action thwarted the purpose of the registration requirement, which is to aid

police surveillance of certain sex offenders whom the Legislature has deemed to pose

"a 'continuing threat to society' [citation] and require constant vigilance." (Wright v.

Superior Court (1997) 15 Cal.4th 521, 527.)

       Turning to Horton's criminal history, he committed two extremely violent

sexual assaults that resulted in his five prior strike convictions. While these incidents

are remote, evidence in the record of Horton's current state of mind do not weigh in his

favor. In 2010, he was fired for using a company credit card to purchase pornography

and a company computer to send e-mails soliciting sex. Additionally, during his 2010

psychological evaluation, he was not truthful regarding his age when the offenses

occurred and blamed the offenses on substance abuse. The Attorney General's

recitation of the prior crimes, however, suggests substance abuse was not involved.

Although Horton implies that his physical condition is extremely poor, it did not

prevent him from soliciting sex and a letter written on his behalf showed he was active

as he spent "a great deal of time" golfing. Finally, in considering the harshness of the

penalty, we take into consideration that Horton is a repeat offender whom the

Legislature may punish more severely than it punishes a first-time offender. (Ewing,

supra, 538 U.S. at pp. 24–26.)

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       On this record, Horton's decision to disregard the registration requirement "may

properly be viewed as an indicator of potentially significant future dangerousness."

(Coley, supra, 55 Cal.4th at p. 562.) We conclude, therefore, that while Horton's

sentence is harsh, it does not violate either the state or federal constitutional

prohibitions on cruel and unusual punishment.

                                III. Abstract of Judgment

A. Facts

       At the sentencing hearing, the court ordered Horton to pay a $5,000 restitution

fine (§ 1202.4, subd. (b)), a $40 court security fee (§ 1465.8, subd. (a)(1)), a $30

criminal conviction assessment (Gov. Code, § 70373, subd. (a)) and booking fees in

the amount of $154 (Gov. Code, § 29550.1). The court also imposed a parole

revocation fine of $5,000 "suspended unless probation/parole revoked." (§ 1202.45.)

When asked by defense counsel whether the court was "[r]unning the fines concurrent

[or] staying the fines," the court responded, "I'll stay all fines. Yes." The court

minutes stated that "the court stay[ed] all fines/fees." The abstract of judgment,

however, reflected the imposition of all fines and fees, except that the $5,000 fine

under section 1202.45 was "suspended unless parole is revoked."

B. Analysis

       Horton contends that the abstract of judgment does not reflect the stay on "all"

the fines and fees as ordered by the trial court. We disagree because the facilities

assessment fee and the court security fee are mandatory and the trial court had no

authority to stay those fees. (People v. Woods (2010) 191 Cal.App.4th 269, 272–273.)

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Similarly, the restitution fine cannot be stayed. (Ibid.) Also, the plain language of the

booking fee statute makes clear that this fee is mandatory and not subject to a

defendant's ability to pay. Accordingly, while the trial court erroneously ordered that

these fees be "stayed," the abstract of judgment correctly showed the imposition of

these fees. Finally, as reflected in the abstract of judgment, and conceded by the

Attorney General, the only fine properly stayed was the parole revocation fine unless

parole is revoked (§ 1202.45).

                                     DISPOSITION

       The judgment is affirmed.



                                                                   MCINTYRE, J.

WE CONCUR:

MCDONALD, Acting P. J.

O'ROURKE, J.




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