Filed 3/15/13 P. v. Jackson CA4/1
                    NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.


                  COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                DIVISION ONE

                                         STATE OF CALIFORNIA



THE PEOPLE,                                                           D061164

         Plaintiff and Respondent,

         v.                                                           (Super. Ct. No. SCD233151)

ROBERT JOSEPH JACKSON,

         Defendant and Appellant.


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

Amalia L. Meza, Judge. Affirmed.



         A jury found Robert Joseph Jackson1 guilty of residential burglary and

robbery. The court found true that he had five prison priors, four serious felony

priors, and four strike priors and sentenced him to 46 years to life in prison. Jackson

appeals, contending (1) there was insufficient evidence to support his convictions,


1 Defendant was charged in the second amended information as Robert Anderson
aka Robert Joseph Jackson. Prior to trial, he informed the court that his true name is
Robert Joseph Jackson. Accordingly, the court modified the information to reflect
the defendant's name as Robert Joseph Jackson aka Robert Anderson.
and (2) his sentence constitutes cruel and unusual punishment. We reject Jackson's

contentions and affirm the judgment.

                FACTUAL AND PROCEDURAL BACKGROUND

       In September 2010, Clifton and Ledesma Broadhurst were building a shed

outside of their home when they heard a noise possibly coming from inside the

house. They went inside and saw their patio door was open and Ledesma's purse was

sitting wide open on the freezer instead of in the cupboard where it was usually

stored. Clifton then saw a man trying to leave through a security door. The man was

African American, six feet four inches to six feet five inches tall, had a slender build

and was wearing a white polo shirt with red and black stripes. The man approached

and said, "Everything is cool. Everything is fine." Clifton stepped in between the

man and Ledesma and instructed the man to stay there while he called the police.

The man shoved Clifton out of the way and then grabbed Ledesma by the wrists and

threw her to the ground. After Clifton helped Ledesma up, he saw that the man had

jumped over the gate in the front yard and was headed toward an alley. When

Clifton got to the alley, the man was gone. In the meantime, Ledesma checked her

purse and noticed that her wallet containing at least $30 was missing. Clifton

returned home where Ledesma was on the phone with a 911 dispatcher.

       Duane Zugel, who lived in the area, heard the struggle and also called 911.

Zugel told the operator that he saw an African American male in his mid-twenties in

a striped shirt run to an apartment complex north of him. Zugel described the



                                           2
suspect as being in his twenties based on the man's thin build and the way he was

running.

       Officer Richard Barton received a report of the burglary and set up a

perimeter to attempt to locate the perpetrator. Officer Joseph Thomas was at a point

on the perimeter when he heard a broadcast description of the suspect. A

neighborhood resident told Officer Thomas that she saw a male matching the

description of the suspect run behind her yard. On top of a bush in the front yard of a

nearby residence, Officer Thomas found a polo shirt with vertical red, blue, white

and green stripes. The shirt was moist with fresh sweat and blood stains.

Approximately 10 feet away, just on the other side of a fence, officers found a wallet.

Clifton and Ledesma later identified the shirt as the one the suspect had been wearing

and the wallet as the one stolen from their home. The location where the shirt and

wallet were found was about four-tenths of a mile from the Broadhurst's home.

       Tests on the shirt and wallet revealed that both items had blood on them.

A DNA analysis of samples taken from the shirt and wallet matched Jackson's DNA

profile. The probability that a person selected at random would have the same DNA

profile obtained from the items of evidence and Jackson was one in four sextillion

African Americans.

Defense

       Officer Timothy Lindstrom was one of the officers who responded to the

burglary call. While he was driving to the area, Officer Lindstrom saw a man

wearing a black and red striped shirt and who generally matched the description of

                                          3
the suspect. The man ran when Officer Lindstrom approached. Officer Lindstrom

chased him into an alley, but lost sight of him.

       After receiving information from a neighbor, officers tracked down William

Harrell, who had a warrant out for his arrest, at his home. Officers brought Harrell

outside for a curbside lineup. Clifton was confident that Harrell was not the person

who he saw inside his home. In an uncertain tone, Ledesma stated, "Yes, I think it's

him." Officers took a DNA sample from Harrell, but did not arrest him. Harrell's

DNA was not on either the shirt or wallet found by other officers.

       The Broadhursts' neighbor, Johanne Geoffrion, testified that she saw a man

wearing a striped shirt run down the sidewalk in front of the Broadhursts' home and

into an alley. The man was agile and moving very fast. Geoffrion described the man

as young, African American and five feet nine to five feet ten inches tall. The height

description may not have been accurate because Geoffrion was looking down from

her vantage point. Further, Geoffrion described the man as in his twenties based on

the way he moved and because he did not have gray hair.

                                     DISCUSSION

                             I. Sufficiency of the Evidence

A. Additional Facts

       At trial, Officer Barton initially testified that he collected the shirt and wallet

by placing them in one bag. He later clarified that testimony by stating that he must

have used two separate bags for the evidence because his handwriting indicating

different addresses was on two bags. He then placed the two smaller bags in one

                                             4
larger bag. Officer Barton recalled that the shirt was moist with blood, but did not

see blood stains on the wallet. Officers Thomas and Brandon Woodland both

recalled that the evidence was in two separate bags. Similarly, Clifton testified that

he thought the evidence was in two bags. However, Ledesma thought the items were

in one bag.

       After he collected the evidence, Officer Barton took the items to the

Broadhursts' home. He took the wallet and shirt out of the bag and placed them on

the trunk of his vehicle so that the Broadhursts could identify them. Officer

Woodland and Clifton testified that an officer showed Clifton the shirt for

identification by pulling a portion of it out of the bag and a similar procedure was

used for the wallet. Ledesma stated that the evidence was shown to her in a bag and

then put on the trunk of a police vehicle.

B. Analysis

       Jackson contends there was insufficient evidence to support his convictions

because nobody specifically identified him as the perpetrator, another man fitting the

description of the suspect was found in the vicinity, and DNA from the shirt could

have contaminated the wallet when the items were placed in the same bag.

       In assessing challenges to the sufficiency of the evidence, we review the

whole record in the light most favorable to the judgment to determine whether it

contains substantial evidence from which a reasonable trier of fact could find guilt

beyond a reasonable doubt. (People v. Maury (2003) 30 Cal.4th 342, 396.) It is not

our function to reweigh the evidence (People v. Ochoa (1993) 6 Cal.4th 1199, 1206)

                                             5
and reversal is not warranted merely because the circumstances might also be

reasonably reconciled with a contrary finding. (People v. Thomas (1992) 2 Cal.4th

489, 514.) Our sole function is to determine if any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt. (People v.

Bolin (1998) 18 Cal.4th 297, 331; People v. Marshall (1997) 15 Cal.4th 1, 34.)

Before a conviction can be set aside for insufficiency of the evidence, it must clearly

appear that there is insufficient evidence to support it under any hypothesis. (People

v. Johnson (1980) 26 Cal.3d 557, 575–578.) The same standard of review applies

even "when the conviction rests primarily on circumstantial evidence." (People v.

Kraft (2000) 23 Cal.4th 978, 1053.)

       Here, despite Jackson's contentions, there was sufficient evidence to support

his convictions. Although no witnesses were able to specifically identify Jackson as

the perpetrator, direct identification evidence is not required so long as circumstantial

evidence establishes guilt beyond a reasonable doubt. (People v. Ekstrand (1938) 28

Cal.App.2d 1, 3.) There was an abundance of circumstantial evidence in this case.

The Broadhursts both described the perpetrator as a tall, thin African American man

wearing a striped shirt. Neighbors gave a similar description. While the witnesses

described the perpetrator as a young man or in his twenties and Jackson was actually

54 years old, the witnesses' descriptions were based on the perpetrator's agility and

movements. Additionally, officers found a striped shirt moist with blood and sweat

only about four-tenths of a mile from the Broadhursts' home. Jackson's DNA was on

that shirt, and Ledesma's wallet was found only ten feet away from it.

                                           6
       We are not persuaded by Jackson's argument that there was insufficient

evidence to establish he was the perpetrator because blood from the shirt could have

contaminated the wallet. Although Officer Barton initially testified that he placed

the shirt and wallet in one bag, he clarified that testimony by stating that he must

have used two separate bags and then placed them in one larger bag. This procedure

was supported by testimony from Clifton and Officers Thomas and Woodland who

all recalled that the evidence was in two separate bags. Although Ledesma had a

different recollection, the jury was free to reject her testimony and accept the

testimony of other witnesses. The same is true regarding the discrepancies in

testimony concerning the procedures used to show the shirt and wallet to the

Broadhursts. Regardless, even without evidence of Jackson's DNA on the wallet, we

conclude there was substantial evidence to support the convictions.

       Lastly, we are not convinced that because Harrell generally fit the description

of the suspect and was found in the vicinity, Jackson's convictions should be

reversed. Harrell's DNA was not on the shirt or the wallet found near the crime

scene, whereas Jackson's DNA was on the items. Additionally, Clifton was

confident that Harrell was not the person who he saw inside his home and Ledesma

was uncertain. The evidence involving Harrell does not negate the strong evidence

supporting the jury's verdicts.

       In sum, we conclude there was sufficient evidence to support Jackson's

convictions.



                                           7
                      II. Cruel and Unusual Punishment Claim

A. Background

       The court found true that Jackson had five prison priors, four serious felony

priors, and four strike priors and sentenced him to a total term of 46 years to life in

prison. As a result of Jackson's strike priors, his sentence included two terms of 25

years to life for the residential burglary and robbery. The robbery sentence was

stayed pursuant to Penal Code section 654. Additionally, the court imposed a

sentence of five years for each serious felony prior (20 years total) and one year each

for Jackson's five prison priors. Four of the five prison prior terms were stayed.

       Jackson's criminal history dates back to 1974 when he burglarized a home and

stole a .22 caliber pistol. Less than two years later, while being pursued for a purse

snatching incident, Jackson struck a police officer on the back of the head with an

unknown object, resulting in a concussion. In 1978, Jackson was convicted of

multiple burglary offenses. In 1980, he committed domestic violence against his

girlfriend and became violent when arrested. Between 1984 and 2002, Jackson had

additional theft-related convictions, including an incident where he forcefully stole a

wallet out of a man's pocket, causing the pocket to tear and the man to fall to the

ground, and an incident where Jackson grabbed a victim from behind while

instructing someone else to steal the victim's wallet.

B. Analysis

       Jackson contends that his sentence of 46 years to life constitutes cruel and

unusual punishment under the federal and California Constitutions because his

                                            8
current and past offenses were driven by drug addiction and did not result in serious

harm to his victims. We reject this argument.

       Under the California Constitution, punishment is disproportionate if it "shocks

the conscience" considering the offender's history and the seriousness of his offenses.

(In re Lynch (1972) 8 Cal.3d 410, 424.) In analyzing a disproportionality claim

under the state Constitution, we examine (1) "the nature of the offense and/or the

offender, with particular regard to the degree of danger both present to society" (id.

at p. 425), (2) the sentence compared to the sentences for more serious offenses in

California (id. at p. 426), and (3) the sentence compared to sentences for the same

offense in other states (id. at p. 427; see also People v. Dillon (1983) 34 Cal.3d 441,

479). If a particular punishment is proportionate to the defendant's individual

culpability, there is no requirement it be proportionate to the punishments imposed in

other similar cases. (People v. Webb (1993) 6 Cal.4th 494, 536.) Accordingly, a

determination of whether a punishment violates the state constitutional prohibition

against cruel and unusual punishment may be based solely on the offense and the

offender. (People v. Ayon (1996) 46 Cal.App.4th 385, 399.)

       A defendant must overcome a considerable burden in order to establish that

the sentence is disproportionate to his level of culpability. Successful challenges to

proportionality are an "exquisite rarity." (People v. Weddle (1991) 1 Cal.App.4th

1190, 1196–1197.) Courts in a number of California cases have rejected claims that

sentences under the Three Strikes law violated the state Constitution's prohibition

against cruel or unusual punishment. (See, e.g., People v. Romero (2002) 99

                                           9
Cal.App.4th 1418, 1431–1432 (Romero); People v. Cortez (1999) 73 Cal.App.4th

276, 286; People v. Askey (1996) 49 Cal.App.4th 381, 388.)

       With regard to the first prong of the analysis, Jackson asserts that although he

has sustained numerous convictions, they were the result of his inability to control

his drug addiction and nobody was seriously harmed during the offenses. Jackson

argues that the offenses that resulted in harm to his victims took place more than 30

years ago and, since that time, his offenses do not reflect a continuing pattern of

violent behavior. Jackson downplays the significance of his long and serious

criminal history. In addition to the incidents where Jackson assaulted a police officer

and committed domestic violence against his girlfriend, he also harmed the

Broadhursts, forcefully stole a man's wallet causing the victim to fall to the ground,

and grabbed a victim from behind and held him while someone else stole the victim's

wallet. While the motivation for these crimes may have been to support Jackson's

drug addiction, they included force, fear and violence. Further, we note that there is

no indication that Jackson has attempted to address his destructive drug addiction.

       Jackson's lengthy criminal history has not been deterred by parole and was

interrupted only by periods of incarceration. In addition to the nature of the current

offense, "recidivism is a legitimate factor to consider when imposing a greater

sentence than for a first time offense." (People v. Cuevas (2001) 89 Cal.App.4th

689, 704–705.) "Under the three strikes law, defendants are punished not just for

their current offense but for their recidivism. Recidivism in the commission of

multiple felonies poses a danger to society justifying the imposition of longer

                                           10
sentences for subsequent offenses. [Citation.]" (People v. Cooper (1996) 43

Cal.App.4th 815, 823–824.) Despite his admitted drug addiction, Jackson has not

changed his behavior and has engaged in conduct resulting in harm to others to

support his addiction. While Jackson's sentence is harsh, it is not disproportionate to

his culpability. (People v. Stone (1999) 75 Cal.App.4th 707, 715 [25 years to life

sentence for a nonviolent drug offense is constitutional].) Although we find

Jackson's sentence was not disproportionate based on his current offenses and

criminal history, we nevertheless consider the other disproportionality factors.

       Jackson next compares his punishment with punishments that are prescribed

for more serious crimes in California, including voluntary manslaughter, rape,

kidnapping and premeditated murder. He contends that he poses a lesser danger to

society than persons who commit those crimes. We reject Jackson's comparison of

his sentence under the Three Strikes law to the sentence for first degree murder or to

the sentences for other serious or violent crimes, in the absence of prior strikes. (See,

e.g., Romero, supra, 99 Cal.App.4th at p. 1433 [" ' "Because the Legislature may

constitutionally enact statutes imposing more severe punishment for habitual

criminals, it is illogical to compare [defendant's] punishment for his 'offense,' which

includes his recidivist behavior, to the punishment of others who have committed

more serious crimes, but have not qualified as repeat felons." [Citation.]'

[Citation.]"].)

       Jackson also compares his sentence to recidivist punishments for similar

crimes in other jurisdictions, asserting that "[t]here appears to be no state besides

                                           11
California with a recidivist statute requiring such mandatory application and lengthy

imprisonment regardless of mitigating circumstances." The fact " '[t]hat California's

punishment scheme is among the most extreme does not compel the conclusion that

it is unconstitutionally cruel or unusual. This state constitutional consideration does

not require California to march in lockstep with other states in fashioning a penal

code. It does not require "conforming our Penal Code to the 'majority rule' or the

least common denominator of penalties nationwide." [Citation.] Otherwise,

California could never take the toughest stance against repeat offenders or any other

type of criminal conduct.' " (Romero, supra, 99 Cal.App.4th at p. 1433, quoting

People v. Martinez (1999) 71 Cal.App.4th 1502, 1516.)

       Accordingly, we reject Jackson's argument that his sentence constitutes cruel

and unusual punishment under California's Constitution. Similarly, we cannot say

that Jackson's Three Strikes sentence violates the federal Constitution based on his

present offenses and past recidivism. The Eighth Amendment of the federal

Constitution includes a narrow proportionality protection against grossly

disproportionate sentences, but the constitutional protection against such sentences

applies only in the " 'exceedingly rare' " and " 'extreme' " case. (Ewing v. California

(2003) 538 U.S. 11, 17–18, 20, 21, 29–30 (plur. opn. of O'Connor, J.) [affirming a

sentence of 25 years to life under the Three Strikes law for a recidivist who had

shoplifted golf clubs worth $1,200, and whose prior convictions were for theft, grand

theft of an automobile, burglary, robbery, and battery]; Lockyer v. Andrade (2003)

538 U.S. 63, 77 [two consecutive 25 years to life terms for two petty thefts not

                                           12
grossly disproportionate].) In view of Jackson's current and past offenses and his

continuous criminal history, which has not been deterred, we conclude his sentence

is not grossly disproportionate to his crimes and does not shock the conscience.

Thus, Jackson's sentence does not constitute cruel and unusual punishment.

                                   DISPOSITION

      The judgment is affirmed.



                                                                  MCINTYRE, J.

WE CONCUR:

HUFFMAN, Acting P. J.

MCDONALD, J.




                                         13
