People v. Stanford CA2/1 ( 2022 )

Filed 12/23/22 P. v. Stanford CA2/1
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B318464
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. PA096338)
v.
JOHNNY STANFORD,
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Los
Angeles County, Hayden A. Zacky, Judge. Affirmed in part and
remanded in part with directions.
Debbie Yen, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Steven D. Matthews and Gary A. Lieberman,
Deputy Attorneys General, for Plaintiff and Respondent.
Following a jury trial, defendant Johnny Stanford was
convicted of inflicting corporal injury on a cohabitant (Pen. Code,
§ 273.5, subd. (a); count 1),1 making criminal threats (§ 422,
subd. (a); count 2), and false imprisonment by violence (§ 236;
count 3). At his sentencing, defendant admitted to two prior
serious felony convictions under the Three Strikes law (§§ 667,
subds. (b)-(i), 1170.12). The trial court sentenced defendant to
state prison for a term of 25 years to life on the criminal threats
charge and lesser concurrent sentences on the remaining two
counts.
On appeal, defendant contends we should reverse his
corporal injury and criminal threats convictions for the trial
court’s failure to sua sponte give a unanimity instruction.
Defendant separately challenges his sentence by arguing the trial
court erred in denying his Romero2 motion and by refusing to
stay his concurrent sentences, and that his sentence amounts to
cruel or unusual punishment. We find no merit in any of these
contentions.
We do agree with defendant that the trial court erred by
adding multiple five-year enhancements to his sentences on the
corporal injury and false imprisonment counts. Accordingly, we
modify defendant’s sentence by striking those enhancements, and
affirm the judgment in all other respects.
1Unless otherwise stated, all statutory references are to
the Penal Code.
2
People v. Superior Court (Romero) (1996) 13 Cal.4th 497(Romero).
2
FACTUAL BACKGROUND
On the morning of April 2, 2021, Angela S. ran into a
recycling yard in Sun Valley, California.3 Angela was barefoot
and appeared to have urinated on herself. The supervisor at the
recycling yard observed bruises on Angela’s neck and face.
Angela, crying hysterically, informed the supervisor that her
boyfriend was trying to kill her and asked the supervisor to call
the police. Both Angela and the supervisor spoke to the 911
dispatcher. The supervisor reported that Angela stated her
boyfriend was going to kill her, and described Angela as “bruised
up.” When asked by the dispatcher whether Angela was awake,
the supervisor responded that she was “really hysterical right
now. She’s crying. She’s yelling. She’s very scared that her
boyfriend’s gonna come over and see her and try to beat her up.”
Angela also spoke to the dispatcher, reporting that she had been
trying to escape the recreational vehicle (RV) where she lived
with defendant, but could not. She stated that she had climbed
out a window when her boyfriend was momentarily at the back of
the RV. She stated that her boyfriend wanted to kill her and
asked for an ambulance. Security camera footage played at the
trial showed Angela climbing out a window of the RV and
running across the street toward the recycling yard.
Los Angeles Police Department Officers Zaman and Foster
answered the 911 call and met Angela at the recycling yard. At
that time, Angela repeated much of what she had told the 911
dispatcher: that her boyfriend would not let her leave the RV,
and that she “threw [her]self out of that window” in order to
3We use the victim’s first name to protect her privacy (see
Cal. Rules of Court, rule 8.90(b)(4)), and not out of any disrespect.
3
escape. She added that her boyfriend had choked her the night
before, and that he had threatened to “grab [Angela] from behind
and rip [her] face off.” She had been unable to call for help
because he would not allow her to have a phone. Angela told the
officers that her neck hurt where her boyfriend had choked her,
and her ankles hurt from climbing out of the RV when she made
her escape. While Officers Zaman and Foster interviewed
Angela, other officers approached the RV and demanded that
defendant come out of the vehicle. After repeated requests,
defendant exited the RV and was arrested. Paramedics
transported Angela to a hospital.
At the hospital, Angela was interviewed again by Officers
Zaman and Foster. She reported that on April 1, she had bought
a birthday card and cookies as a gift for defendant, although it
was not his birthday. At first defendant thanked her for the card
and cookies, but then he questioned why she had given him a
birthday card when it was not his birthday. He accused Angela
of lying and of infidelity. Defendant struck Angela, lifted her by
the neck and threw her on the bed, where he jumped on her and
choked her. He threatened Angela, telling her “I’m gonna fuckin’
kill you.” Angela begged defendant to stop; he did, and started
crying. Eventually defendant “calmed . . . down” and apologized
to Angela, and defendant and Angela left the RV to take a walk.
They returned to the RV between 4:00 and 5:00 p.m.
After Angela and defendant returned to the RV, defendant
asked her for her phone. While examining the contacts stored on
the phone, defendant asked Angela “This person’s new. Who is
he?” Angela responded that it was her doctor. Late that night,
after Angela had gone to sleep, defendant awakened her to
question her about a letter he had found. Angela had written it
4
to her daughter’s father. Defendant accused Angela of planning
to leave him and return to her daughter’s father. He “socked”
Angela in the jaw and choked her while telling her “Bitch, I’m
gonna fuckin’ kill you now. You’re dead.” He continued to
threaten Angela, saying for example “Bitch, just fuckin’ tell me
the truth because no matter what you say, I’m dead, you’re dead.”
Angela was unable to call the police that night because defendant
had taken her phone. Not until the morning, when defendant
was alone in the bedroom at the rear of the RV, was Angela able
to open the kitchen window and climb out.
While at the hospital, Angela was interviewed by medical
staff. Her medical records, introduced into evidence, stated as
follows: “Patient was reportedly assaulted by her boyfriend who
reported [sic] choked, kicked, punched and scratched her earlier
today. Patient with complaint of neck pain, chest pain,
abdominal pain. She has multiple scratches on her face, neck
and a bite mark on her right chest.” Another entry in her
medical records read, “Patient stated her boyfriend was ‘beating
her up and she jumped out of the window to get away.’ Patient
appears scared, crying, but glad she was able to ‘escape.’ ”
Angela was reluctant to testify. After defendant’s arrest,
she had gone to Utah to stay with her mother, and she did not
immediately respond when Salt Lake City and Los Angeles
district attorneys’ investigators tried to reach her about
returning to Los Angeles to testify at defendant’s trial. On the
stand, Angela recanted all of her previous statements. She
testified that she and defendant were in a loving relationship,
and that defendant had never struck her, choked her or
threatened her. She testified that defendant did not cause her
injuries, and they resulted from an unknown woman who was in
5
the RV with defendant, and who Angela fought in a jealous rage.
She explained that her previous statements were lies that she
told in an attempt to hurt defendant after finding him in the
company of this unknown woman. According to her trial
testimony, Angela climbed out the RV window not to escape, but
because she wanted to confront the woman again and did not
want defendant to know. She also testified that she had used
drugs on the day in question, and that her memories of the day
were confused at best.
Defense counsel rested without calling any witnesses.
Defense counsel’s closing argument focused on the two different
versions of events provided by Angela, and contended Angela’s
prior statements did not prove beyond a reasonable doubt that
defendant committed any crime. After a short period of
deliberation, the jury reached guilty verdicts on all three counts.
Outside the presence of the jury, defendant admitted to two
prior strikes, one for shooting into an occupied dwelling or vehicle
and one for armed robbery. Defendant was sentenced on
February 3, 2022, but the trial court recalled the sentence to
correct an error and resentenced defendant on February 8, 2022
as follows: 25 years to life on the criminal threats count; three
years in state prison, doubled to six years pursuant to sections
667 and 1170.12, plus two five-year enhancements for
defendant’s prior strikes, for a total of 16 years on the corporal
injury count; and two years in state prison, doubled to four years
and with two five-year enhancements for the prior strikes, for a
total of 14 years, on the false imprisonment count. The court
ordered the sentences on the corporal injury and false
imprisonment counts served concurrently with the sentence on
the criminal threats count.
6
Defendant filed a timely notice of appeal.
DISCUSSION
A. The Trial Court’s Failure to Give a Unanimity
Instruction Was Not Reversible Error
Defendant first contends the trial court erred by failing to
give a unanimity instruction on the corporal injury and criminal
threats counts. Defense counsel did not request such a jury
instruction, but that failure does not waive a claim of error.
(People v. Riel (2000) 22 Cal.4th 1153, 1199.) That is because
“[e]ven absent a request, the court should give the instruction
‘where the circumstances of the case so dictate.’ ” (Ibid., quoting
People v. Carrera (1989) 49 Cal.3d 291, 311, fn. 8.) We review de
novo a claim that the trial court failed to properly instruct the
jury. (People v. Canizalez (2011) 197 Cal.App.4th 832, 850.)
1. A Unanimity Instruction Was Not Required on the
Corporal Injury Count
Defendant asserts a unanimity instruction was required on
the corporal injury count because the prosecution introduced
evidence of two separate assaults on Angela—one in the morning,
in connection with the birthday card, and the other in the
evening, in connection with the letter Angela wrote to her
daughter’s father. Defendant argues that in the absence of a
unanimity instruction, some jurors might have based their guilty
verdict on the morning incident and others on the later one, or
jurors may have based their verdict on different injuries suffered
during these events, without all 12 jurors agreeing on what acts
and injuries constituted the crime at issue.
“[O]ur Constitution requires that each individual juror be
convinced, beyond a reasonable doubt, that the defendant
7
committed the specific offense he is charged with.” (People v.
Hernandez (2013) 217 Cal.App.4th 559, 569.) “A unanimity
instruction is given to thwart the possibility that jurors convict a
defendant based on different instances of conduct.” (Ibid.) Such
an instruction “ ‘ “eliminate[s] the danger that the defendant will
be convicted even though there is no single offense which all the
jurors agree the defendant committed” ’ ” and “ ‘ “prevent[s] the
jury from amalgamating evidence of multiple offenses, no one of
which has been proved beyond a reasonable doubt, in order to
conclude beyond a reasonable doubt that a defendant must have
done something sufficient to convict on one count.” ’ ” (Ibid., fn.
omitted.)
Courts have recognized, however, that a unanimity
instruction “is not required if ‘the defendant offered the same
defense to both acts constituting the charged crime, so no juror
could have believed defendant committed one act but disbelieved
that he committed the other.” (People v. Covarrubias (2016) 1
Cal.5th 838, 879, quoting People v. Davis (2005) 36 Cal.4th 510,
562.) Some courts have described this as an exception to any
need for a unanimity instruction. (Covarrubias, supra, at p. 879;
Davis, supra, at p. 562). Other courts have suggested a harmless
error analysis—that any error in failing to give a unanimity
instruction is harmless “[w]here the record provides no rational
basis, by way of argument or evidence, for the jury to distinguish
between the various acts, and the jury must have believed beyond
a reasonable doubt that [the] defendant committed all acts if he
committed any . . . .” (People v. Thompson (1995) 36 Cal.App.4th
843, 853; accord, People v. Diedrich (1982) 31 Cal.3d 263, 283;
People v. Hernandez, supra, 217 Cal.App.4th at p. 577.)
8
Here, there was no need for a unanimity instruction given
that defendant offered the same defense to the alleged incidents
and any failure to give the instruction was harmless. In People v.
Thompson (1984) 160 Cal.App.3d 220, for example, the defendant
was convicted of corporal injury in violation of section 273.5 after
the jury heard “evidence of numerous sexual and physical
assaults” committed against his wife. (Thompson, supra, at
p. 223.) On appeal, the defendant contended the trial court had
erred by failing to give a unanimity instruction, because the
jurors did not necessarily all convict him for the same assault.
The Court of Appeal rejected this argument, citing the unitary
defense exception. “[T]he defendant here offered only one
defense: that he did not hit [his wife]. The essence of the jury’s
task was to decide who was telling the truth, the [defendant] or
his wife. There was no possibility of some jurors believing one
defense, and some another.” (Id. at p. 226.)
The unitary defense exception applies here for the same
reasons. While defendant asserts he offered multiple defenses at
trial, our review of the closing argument shows no such thing.
Defendant did not dispute the injuries Angela suffered, but
claimed he did not cause them. He offered the same defense in
connection with the injuries related to the birthday card and the
injuries related to the letter Angela wrote to her daughter’s
father. That defense was that Angela’s description of what
occurred inside the RV shortly after the event to third parties
was not credible in light of her contradictory testimony under
oath at the trial. Defense counsel argued that Angela was the
only witness who knew what happened inside the RV, that
Angela told two different versions of what had happened, and the
9
version to which Angela testified at trial “is what happened that
day. And as a result, you should return a verdict of not guilty.”
We see no possibility that any juror, given this defense and
the jury’s binary choice between Angela’s two versions of what
occurred, could conclude that defendant had (or had not) struck
and choked Angela on the morning of April 1, 2021, while
reaching the opposite conclusion as to the assault occurring later
that night. We accordingly find the trial court did not err in
failing sua sponte to give a unanimity instruction. (See, e.g.,
People v. Covarrubias, supra, 1 Cal.5th at p. 880 [unanimity
instruction was not required when defense’s main argument was
that key witness had been untruthful about alleged crimes, and
verdict implied jury did not believe that defense]; People v.
Thompson, supra, 160 Cal.App.3d at p. 226 [any error in failing
to give a unanimity instruction was harmless because juror had
to decide between two competing factual recitations, so “[t]here
was no possibility of some jurors believing one defense, and some
another”].)4
4 A further exception provides that “no unanimity
instruction is required if the case falls within the continuous-
course-of-conduct exception, which arises ‘when the acts are so
closely connected in time as to form part of one transaction’
[citation], or ‘when . . . the statute contemplates a continuous
course of conduct of a series of acts over a period of time’
[citation].” (People v. Jennings (2010) 50 Cal.4th 616, 679.)
Because the unitary defense exception applies here, we do not
address the parties’ arguments concerning whether the
continuous-course-of-conduct exception is also applicable.
10
2. A Unanimity Instruction Was Not Required on the
Criminal Threats Count
Defendant’s argument that a unanimity instruction was
required on the criminal threats count is similarly unpersuasive.
Defendant asserts the instruction was required because the
prosecution presented two discrete instances of defendant
threatening Angela—once in the morning when he threatened to
kill her for lying about her reasons for giving him a birthday
card, and an incident at night when he threatened to kill her over
his belief that Angela was planning to leave defendant and move
to Utah. But a unanimity instruction was not required (and
alternatively, any failure to give it harmless) because defendant
offered the same defense to both events—that Angela’s trial
testimony showed there was no proof beyond a reasonable doubt
he threatened her, and her statements to the contrary on April 2,
2021, were not credible. As is the case with the corporal injury
count, given this defense no juror could believe that defendant
threatened (or did not threaten) Angela in the morning of April 1,
while reaching a different conclusion as to whether he did so later
that night. (See, e.g., People v. Covarrubias, supra, 1 Cal.5th at
p. 880; People v. Thompson, supra, 160 Cal.App.3d 220 at p. 226.)
B. The Trial Court Did Not Impose Multiple Sentences
for the Same Conduct in Violation of Section 654
Defendant argues the trial court improperly sentenced him
to concurrent terms on the corporal injury and false
imprisonment counts because those convictions resulted from a
single indivisible course of conduct. Section 654 provides that
“[a]n act or omission that is punishable in different ways by
different provisions of law may be punished under either of such
provisions, but in no case shall the act or omission be punished
11
under more than one provision. . . .” (Id., subd. (a).) Section 654
therefore “precludes multiple punishments for a single act or
indivisible course of conduct.” (People v. Hester (2000) 22 Cal.4th
290, 294.)
“ ‘ “ ‘Whether a course of criminal conduct is divisible and
therefore gives rise to more than one act within the meaning of
section 654 depends on the intent and objective of the actor.’ ” ’ ”
(People v. Jackson (2016) 1 Cal.5th 269, 354.) “If [the] defendant
harbored ‘multiple criminal objectives,’ which were independent
of and not merely incidental to each other, he may be punished
for each statutory violation committed in pursuit of each
objective, ‘even though the violations shared common acts or were
parts of an otherwise indivisible course of conduct.’ [Citation.]”
(People v. Harrison (1989) 48 Cal.3d 321, 335.)
Whether a defendant harbored multiple objectives is a
question of fact for the trial court. (People v. Coleman (1989) 48
Cal.3d 112, 162; see also People v. Hutchins (2001) 90
Cal.App.4th 1308, 1312 [“the law gives the trial court broad
latitude” in determining “whether section 654 is factually
applicable to a given series of offenses”].) “When a trial court
sentences a defendant to separate terms without making an
express finding the defendant entertained separate objectives,
the trial court is deemed to have made an implied finding each
offense had a separate objective.” (People v. Islas (2012) 210
Cal.App.4th 116, 129.) We review that implied finding for
substantial evidence. (People v. Brents (2012) 53 Cal.4th 599,
618.) “We review the trial court’s determination in the light most
favorable to the respondent and presume the existence of every
fact the trial court could reasonably deduce from the evidence.”
(People v. Jones (2002) 103 Cal.App.4th 1139, 1143.)
12
We assume for purposes of argument that defendant’s
violations shared common acts or were parts of an otherwise
indivisible course of conduct. The question then is whether
defendant harbored multiple criminal objectives. Defendant
argues all of the charged crimes had a single objective, but fails
to identify specifically what it was. He instead offers two
possibilities—that the objective was either to force Angela to tell
the truth about the birthday card or to force her to tell him she
was going to leave him. Reviewing the trial court’s determination
in the light most favorable to respondent and presuming the
existence of every fact the trial court could reasonably deduce
from the evidence, we disagree there was a single objective.
Substantial evidence supports a finding of multiple objectives,
namely to injure Angela through a physical assault (corporal
injury, count 1), to frighten her for alleged past infidelity as well
as to keep her under his coercive control by threatening harm
(criminal threats, count 2), and to prevent Angela from leaving
him by keeping her in the RV and taking her phone away so she
could not call for help (false imprisonment, count 3). Accordingly,
we find no error in the trial court’s decision to impose concurrent
terms of imprisonment in this matter.
C. The Trial Court Did Not Abuse its Discretion by
Denying Defendant’s Romero Motion
Defendant next contends the trial court abused its
discretion when it refused to dismiss prior strikes based on his
1994 conviction for shooting at an occupied dwelling or vehicle
and his 2006 conviction for armed robbery. The trial court has
discretion to dismiss strikes based on prior offenses. (Romero,
supra, 13 Cal.4th at pp. 529-530.) In ruling on a Romero motion,
the sentencing court “must consider whether, in light of the
13
nature and circumstances of his present felonies and prior
serious and/or violent felony convictions, 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 treated as though he had not previously been convicted
of one or more serious and/or violent felonies.” (People v.
Williams (1998) 17 Cal.4th 148, 161.) The defendant bears the
burden to show that the decision not to strike was irrational or
arbitrary. (People v. Superior Court (Du) (1992) 5 Cal.App.4th
822, 831.) As our Supreme Court observed in People v. Carmony
(2004) 33 Cal.4th 367, “a trial court does not abuse its discretion
unless its decision is so irrational or arbitrary that no reasonable
person could agree with it.” (Id. at p. 377.) “ ‘[I]t is not enough to
show that reasonable people might disagree about whether to
strike one or more’ prior conviction allegations.” (Id. at p. 378.)
In ruling on the Romero motion, the trial court
acknowledged the factors it needed to consider under People v.
Williams, supra, 17 Cal.4th at p. 161. The court summarized
defendant’s criminal history, which included the following
convictions prior to the second strike 2006 robbery conviction: a
1989 conviction for transportation or sale of a controlled
substance, for which defendant received probation and 240 days
in jail; a 1991 arrest for participation in a criminal street gang
that led to defendant’s probation being revoked and a sentence of
three years in state prison; a 1991 conviction for felony evading of
a peace officer, for which defendant was sentenced to two years in
state prison; the 1994 first strike conviction for shooting at an
inhabited dwelling or vehicle, for which defendant was sentenced
to three year years in state prison; and a 1996 federal conviction
for armed bank robbery for which he was sentenced to 115
14
months in prison (and for which he later served an additional
nine months when his federal supervised release was revoked).
Defendant was on parole at the time he assaulted Angela.
Given these facts, the court found it could not “say that
[defendant] is outside the spirit of the [T]hree [S]trikes law. He
is a recidivist who kept repeating his criminal conduct. As I said
before, even after serving lengthy prison sentences, he did re-
offend. I think that if I were to strike a strike in this case, that
would be an abuse of my discretion based on the state of the law.
So I’m going to deny the Romero motion.”
A trial court abuses its discretion in refusing to dismiss a
prior strike when it was not aware of its discretion to dismiss,
where it considered impermissible factors in refusing to dismiss,
or where the resulting sentence leads to an arbitrary, capricious
or patently absurd result. (People v. Carmony, supra, 33 Cal.4th
at p. 375.) None of that occurred here, and we find no reversible
error in the trial court’s ruling. The court was aware that it had
the power to dismiss a strike, and considered only permissible
factors when exercising its discretion. The factor that the court
did emphasize—defendant’s lengthy criminal history—was
entirely proper. (See, e.g., People v. Brugman (2021) 62
Cal.App.5th 608, 640 [no abuse of discretion, citing the
defendant’s “continuous history of criminal conduct”]; People v.
Humphrey (1997) 58 Cal.App.4th 809, 813 [reversing dismissal of
prior strike where the defendant “led a continuous life of crime
after the prior”].) Nor is the sentence here an arbitrary or
patently absurd result.
Defendant’s suggestion that his prior strikes were remote
in time ignores the periods defendant was incarcerated for those
offenses. The 1994 conviction resulted in a three-year prison
15
sentence, and by 1996 defendant was serving approximately nine
years in federal prison for armed bank robbery. In 2006, soon
after his release from federal prison, defendant reoffended, was
convicted of armed robbery and was sentenced to 15 years in
state prison. He was released in 2019, and shortly thereafter was
returned to federal prison for nine months for violating his
supervised release from his bank robbery conviction. After
release from federal custody, he then committed his offenses
against Angela in early 2021. Defendant’s record shows a
recurrent pattern of serious and often violent crime, followed by a
prison sentence, followed by a new offense soon after release. Nor
do we agree with defendant that the trial court abused its
discretion because this was defendant’s first domestic violence
offense. A trial court does not abuse its discretion in denying a
request to dismiss a prior strike because that strike was for a
different violent crime than the one for which the defendant is
now being sentenced.
Defendant finally claims the court abused its discretion by
failing to accord proper weight to his age and his history of drug
use. A defendant’s age is not one of the mitigating factors listed
in rule 4.423(b) of the California Rules of Court, and in any event
“middle age, considered alone, cannot take a defendant outside
the spirit of the [Three Strikes] law.” (People v. Strong (2001) 87
Cal.App.4th 328, 332.) The court did consider that defendant was
under the influence of drugs at the time he assaulted Angela, but
did not identify that as a mitigating or aggravating factor in its
decision. Particularly given defendant’s prior narcotics related
convictions, as well as the other information before the court, it
was within the court’s discretion to find the Romero motion was
not justified by defendant’s drug use.
16
D. Defendant’s Sentence is Not Cruel or Unusual
Punishment
Defendant contends that his 25 years to life sentence “is so
grossly disproportionate to his offense that it violates the Eighth
and Fourteenth Amendments of the United States Constitution
as well as the California Constitution.” The People contend
defendant waived this argument by failing to raise it at the
sentencing hearing. While a constitutional challenge to the
length of sentence may be waived if not made at sentencing, we
believe it prudent to address this claim given defendant’s related
claim of ineffective assistance of counsel.5 (See, e.g., People v.
Martin (1995) 32 Cal.App.4th 656, 661, disapproved on another
ground in People v. Deloza (1998) 18 Cal.4th 585, 600, fn. 10.)
“ ‘Whether a punishment is cruel and/or unusual is a
question of law subject to our independent review . . . .’ ” (People
v. Wilson (2020) 56 Cal.App.5th 128, 166-167.) We must give
appropriate deference to the Legislature’s power to determine
what punishment is appropriate for crimes. (Solem v. Helm
(1983) 463 U.S. 277, 290 [100 S.Ct. 3001, 77 L.Ed.2d 637]
[“Reviewing courts . . . should grant substantial deference to the
broad authority that legislatures necessarily possess in
determining the types and limits of punishments for crimes, as
5 Defendant asserts that should we find he waived his
constitutional challenge to his sentence, the failure to make that
argument means he received ineffective assistance of counsel.
Our election to address defendant’s constitutional claim on the
merits, and our conclusion that the claim is without merit,
renders moot defendant’s ineffective assistance claim. (See
People v. Bradley (2012) 208 Cal.App.4th 64, 90 [“Failure to raise
a meritless objection is not ineffective assistance of counsel”].)
17
well as to the discretion that trial courts possess in sentencing
convicted criminals”].) As our Supreme Court has observed, “the
three strikes law not only establishes a sentencing norm, it
carefully circumscribes the trial court’s power to depart from this
norm . . . . In doing so, the law creates a strong presumption that
any sentence that confirms to these sentencing norms is both
rational and proper.” (People v. Carmony, supra, 33 Cal.4th at
p. 378.) Thus, reducing a sentence “is a solemn power to be
exercised sparingly only when, as a matter of law, the
Constitution forbids what the sentencing law compels.” (People v.
Mora (1995) 39 Cal.App.4th 607, 616.)
In deciding whether a sentence is cruel or unusual, we
must determine whether 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 established a three-
prong test to determine constitutionality, but defendant expressly
limits his challenge to the first of the three prongs: the nature of
the offense and/or the offender with particular regard to the
degree of danger both present to society.
Defendant argues that “[a] 25 [years] to life sentence is
disproportionate when this was [his] first domestic violence
offense. At trial, there [was] no evidence of any other domestic
violence incidents against other victims. It is undisputed that
drugs likely fueled the toxic events of that day. . . . All of these
factors constitute the ‘totality of the circumstances’ that is
relevant to a disproportionality analysis.”
The sentence here is undoubtedly severe, but it is
authorized by California law and not unconstitutionally cruel or
unusual. Our Legislature has classified “criminal threats, in
18
violation of [s]ection 422” as a “ ‘serious felony’ ” (§ 1192.7, subd.
(c)(38)). The seriousness of that felony is demonstrated by
defendant’s protracted physical assault and terrorizing of Angela
that resulted in multiple injuries and filled her with such fear
that she urinated on herself before fleeing for her life. Defendant
is a habitual offender with a lengthy criminal career involving
repeated crimes of violence. While this may be his first
conviction for domestic violence, his prior crimes include bank
robbery and armed robbery, both of which are “serious felonies”
under section 1192.7, subdivision (d), as well as “violent felonies”
under section 667.5, subdivision (c)(9). As the trial court
observed, prior to his offenses in this case, “since 1988,
[defendant] has been sentenced to a total of 36 years in state [and
federal] prison. . . . He is a recidivist who kept repeating his
criminal conduct. As I said before, even after serving lengthy
prison sentences, he did re-offend.”
Under the Three Strikes law, defendant’s sentence is based
not only on his current offense but also his prior offenses. Given
the totality of defendant’s criminal history up to and including
the current offenses as recited earlier in this opinion, we see no
merit to his claim that his sentence was so disproportionate to his
crimes as to be unconstitutional. (Compare People v. Avila (2020)
57 Cal.App.5th 1134 [life sentence unconstitutional where the
defendant was convicted of attempting to collect “rent” from
roadside fruit vendors, did not commit violence or threatened it,
the crime caused $20 worth of damage, and prior convictions
remote in time].)
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E. The Serious Felony Enhancements Were Incorrect
and Should be Stricken
The trial court sentenced defendant to 16 years on the
corporal injury charge (count 1) and 14 years on the false
imprisonment charge (count 3), with both terms to be served
concurrently to his sentence on the criminal threats charge
(count 2). Both the sentences on counts 1 and 3 included two
five-year serious felony enhancements imposed pursuant to
section 667, subdivision (a). That statute provides that the
enhancements are to be imposed on “[a] person convicted of a
serious felony who previously has been convicted of a serious
felony.” (Ibid.) Defendant argues, the People agree, and we
concur that neither count 1 nor count 3 involved a “serious
felony,” as defined in section 1192.7, subdivision (c). Accordingly,
we direct the trial court to modify defendant’s sentence by
striking the two five-year enhancements added to his sentences
on both counts 1 and 3, which will reduce the sentences on those
counts to six years and four years, respectively.
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DISPOSITION
The matter is remanded with directions to strike the two
enhancements imposed under section 667, subdivision (a) on
count 1, as well as the two similar enhancements imposed on
count 3. In all other respects, the judgment is affirmed. The trial
court is directed to prepare an amended abstract of judgment
reflecting the stricken enhancements and to forward a certified
copy to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED
WEINGART, J.
We concur:
ROTHSCHILD, P. J.
BENDIX, J.
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