Court of Appeal:
Dhanidina Says Punishment, Under Three-Strikes Law, Was Disproportionate to Offense of Crushing Oranges of Street Peddlers From Whom Defendant Sought to Extort Payments for Protection
By a MetNews Staff Writer
The Court of Appeal for this district yesterday ordered the resentencing of a man who tried to set up a minor league protection racket—in two instances crushing oranges being sold at freeway off-ramps, each time telling the vendor he would have to pay him money—and who drew a sentence, under the Three Strikes Law, of 25 years to life in prison plus 14 years.
Justice Halim Dhanidina of Div. Three wrote the opinion which upsets the sentence imposed by Los Angeles Superior Court Judge Steven D. Blades on Rene Avila.
“[N]o reasonable person could agree that the sentence imposed on Avila was just,” Dhanidina declared, in a portion of the opinion that was certified for publication.
He said Blades abused his discretion “by denying Avila’s Romero motion”—seeking a dismissal of one or more of the strikes for sentencing purposes—and added:
“Worse, Avila’s sentence is cruel or unusual punishment under the California Constitution….”
He cited the California Supreme Court’s 1972 decision in In re Lynch in which it was held that a sentence violates Art I, §17 of the state Constitution if “it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.” Avila’s sentence, he said, comes under that prohibition.
On Feb. 19, 2018, Avila instructed a street vendor that he would be obliged to pay $100 in rent to sell his oranges and flowers at the off-ramp; the following day, Avila came to collect; the man did not pay; he crushed two bags of oranges. A jury convicted him, of attempted extortion.
On Feb. 21, 2018, Avila approached another vendor near the same freeway off-ramp, tossed a bag of oranges to the ground, stomped on them, and instructed, “Money, money, money,” then squashed a second bag of oranges. The jury found him guilty of second-degree burglary.
“A punishment passes constitutional muster only if the totality of the circumstances surrounding the current offenses can bear the weight of the sentence imposed….Avila’s current offenses alone cannot justify the sentence imposed. It bears repeating: he squashed oranges and was sentenced to life.”
The jurist said:
“In our tripartite system of government, the legislative branch defines crimes and prescribes punishment….It is therefore the rare case where a court could declare the length of a sentence mandated by the Legislature unconstitutionally excessive….Even so, it is the judiciary’s responsibility to condemn any punishment that is cruel or unusual.”
The current offenses, Dhanidina observed, are “relatively minor,” and the hefty sentence is predicated on past transgressions. To justify the sentence that was meted out, he said, that prior conduct must constitute serious wrongdoing.
He noted that the prior crimes had been committed nearly three decades before the current lawbreaking and that a drug possession offense would now be a misdemeanor.
Dhanidina went on to say:
“We are aware that lengthy sentences like the one imposed on Avila have been common, especially when the Three Strikes law was at play. However, common is not synonymous with constitutional. What has become routine should not blunt our constitutional senses to what shocks the conscience and offends fundamental notions of human dignity. Crushing oranges, even for the purpose of trying to steal or to extort money, is not constitutionally worthy of the sentence imposed where, as here, the defendant’s criminal history on close examination cannot bear its share of such a sentence.
“Life in prison for destroying fruit, even when done by someone with a criminal record in the course of an attempted robbery, robs recidivist sentencing of its moral foundation and renders the solemn exercise of judicial authority devoid of meaning. There comes a time when the people who populate the justice system must take a fresh look at old habits and the profound consequences they have in undermining our institutional credibility and public confidence. In Avila’s case, the time is now.”
Blades expressed the view that the sentence he imposed on Avila was in conformity with the objectives of the Three-Strikes Law. In the course of his discussion of the denial of the Romero motion, Dhanidina said:
“The trial court noted that Avila had victimized vulnerable people eking out a living by selling fruit. What right, the trial court questioned, did Avila have to charge rent to people selling things on the street? The trial court added that Avila committed his current crimes in a ‘violent’ and ‘brutal’ way by intimidating victims making just $300 a week. ‘His acts really amounted to thuggery.’ The trial court then speculated that had someone not called the police, ‘who knows what would have happened.’
“Without a doubt, Avila’s conduct was offensive. Preying on some of the most vulnerable people in society is contemptible. The prosecutor’s own opening statement aptly characterized Avila as a ‘bully.’ However, the trial court speculated about what might have happened had the police not been called, implying the infliction of physical harm to the victims that never appeared in the evidence at trial. Sentencing is not the proper venue for the trial court’s imagination.”
The opinion directs that two of Avila’s priors be stricken and that the defendant be resentenced.
Gaining the rate order was Riverside attorney Tracy L. Emblem, serving under appointment by the Court of Appeal.
The case is People v. Avila, B294632.
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