People v. Yacoub CA2/3 ( 2021 )

Filed 3/23/21 P. v. Yacoub CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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 THREE
THE PEOPLE, B303247
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA017535)
v.
GEORGE YACOUB,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, William C. Ryan, Judge. Affirmed.
Miriam K. Billington, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Paul M. Roadarmel, Jr. and John Yang,
Deputy Attorneys General, for Plaintiff and Respondent.
________________________
In 1999, George Yacoub pled no contest to four felonies:
recklessly causing a fire in an inhabited structure,
manufacturing methamphetamine, possession of a controlled
substance, and possession of a firearm by a felon. He also
admitted suffering two prior “strike” convictions for residential
burglary. The trial court granted Yacoub’s Romero motion1 in
part, striking the prior conviction allegations as to one of the
counts, but not the others. After passage of Proposition 47, the
Safe Neighborhoods and Schools Act (hereinafter Proposition 47),
Yacoub successfully moved for resentencing on his possession of a
controlled substance conviction. In connection with that
resentencing, he filed a new Romero motion, arguing that in light
of various factors, including his prison conduct and
accomplishments, the court should strike one or both of his prior
conviction allegations as to the remaining counts. The court
denied the Romero motion. Yacoub appeals, contending the
denial was an abuse of discretion and his sentence amounts to
cruel or unusual punishment. We disagree, and affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND2
1. Yacoub’s commitment offense, sentence, and direct
appeal
In November 1998, Yacoub lived in a four-unit apartment
building, and operated a methamphetamine laboratory inside his
apartment. On November 16, 1998, the methamphetamine
laboratory caused a fire. When Yacoub and a companion fled the
1
People v. Superior Court (Romero) (1996) 13 Cal.4th 497(Romero).
2
We derive the factual background from our opinion in
Yacoub’s direct appeal, which has been made part of the record.
2
building, an eyewitness called out that Yacoub’s apartment was
on fire. Yacoub stated that he knew, and that was why he was
leaving. Police officers located Yacoub the next day. When they
attempted to arrest him, he struggled and tried to grab at least
one of the officers’ guns. After he was subdued, officers found he
was in possession of methamphetamine. A rifle was discovered in
his burned apartment.
On May 20, 1999, Yacoub pled no contest to recklessly
causing a fire in an inhabited building (Pen. Code, § 452,
subd. (b),3 count 1); manufacturing methamphetamine (Health &
Saf. Code, § 11379.6, subd. (a), count 2); possession of a controlled
substance, methamphetamine (Health & Saf. Code, § 11377,
subd. (a), count 3); misdemeanor obstruction of a peace officer
(§ 148, subd. (a)(1), count 6); and possession of a firearm by a
felon (former § 12021, subd. (a), count 7). Yacoub admitted, as to
counts 1 and 2, that he had been armed with a firearm during the
offenses. (§ 12022, subds. (a)(1), (c).) He further admitted
suffering, in 1993, two prior “strike” convictions for residential
burglary. (§§ 459, 667, subds. (b)–(i), 1170.12, subds. (a)–(d).)
The court partially granted and partially denied Yacoub’s
Romero motion, striking the prior conviction allegations as to
count 7, but declining to do so as to the remaining counts.4
3 All further undesignated statutory references are to the
Penal Code.
4 The court also purported to strike the prior conviction
allegation as to count 6, obstructing an officer in violation of
section 148, subdivision (a)(1). However, this offense was a
misdemeanor, and not subject to Three Strikes sentencing. (See
§ 667, subd. (a).)
3
It found that given the totality of the circumstances, granting the
Romero motion in its entirety was unwarranted. Yacoub’s
activities showed a “total disregard” for human life; his conduct
in attempting to grab the officer’s weapon was violent; he had
accumulated “a remarkable number of convictions” in his
“relatively short life”; and he presumably lacked access to
methamphetamine during his previous incarceration, yet went
“back to his habit” when released. However, the court found
partial grant of the motion appropriate in light of the facts that
Yacoub was 24 years old; his two prior strikes were committed
shortly after his 18th birthday; his criminal history appeared to
be linked to his use of a controlled substance; it was unclear
whether he was actually manufacturing methamphetamine or
simply allowed his residence to be used for that purpose; and the
fire was not intentionally set.
Accordingly, pursuant to the Three Strikes law, the court
sentenced Yacoub to 25 years to life on count 1, and concurrent
terms of 25 years to life on counts 2 and 3. It imposed
determinate three-year terms on counts 6 and 7. Sentence on
count 6 was ordered to run concurrently with sentence on count
1; sentence on count 7 was stayed pursuant to section 654.5 In
accordance with the negotiated plea, the court dismissed count 4
(possession of an assault weapon, § 12280, subd. (b)) and count 5
(attempted removal of a firearm from a peace officer, § 148,
subd. (d)).
5
In September 2018, after considering a letter from the
Department of Corrections and Rehabilitation, the trial court
resentenced Yacoub to one year concurrent on count 6.
4
In 2001, we affirmed Yacoub’s judgment. (People v. Yacoub
(Feb. 16, 2001, B137974 [nonpub. opn.].) Among other things, we
rejected his contention that the trial court had abused its
discretion by “ ‘selectively exercising its Romero discretion,’ ” that
is, striking the prior conviction allegations as to some counts but
not others.
2. Proposition 36 and 47 petitions and denial of Romero
motion
In November 2012, California voters approved Proposition
36, the “Three Strikes Reform Act of 2012,” which—in contrast to
prior law—provided that a defendant is subject to a 25-years-to-
life term under the Three Strikes law only if his or her current,
third felony is itself serious or violent, or if certain exceptions
apply. (People v. Valencia (2017) 3 Cal.5th 347, 350, 353–354;
People v. Perez (2018) 4 Cal.5th 1055, 1062.) In 2014, the voters
enacted Proposition 47, which reclassified certain drug and theft
offenses from felonies or “wobblers”6 to misdemeanors. (People v.
Valencia, at p. 351.) Both enactments created procedures by
which eligible persons serving sentences for offenses affected by
the amendments could petition for resentencing. (See id. at
pp. 350–351; §§ 1170.126, 1170.18.)
In 2013, Yacoub petitioned in the superior court for recall of
his sentence and resentencing on counts 1, 2, and 3, pursuant to
Proposition 36. The court issued an order to show cause (OSC)
and briefing transpired over a period of several years. In
February 2017, Yacoub filed a Proposition 47 petition seeking to
6
A “wobbler” is an offense that is chargeable or punishable
as either a felony or a misdemeanor, depending on its
seriousness. (People v. Valencia, supra, 3 Cal.5th at p. 351, fn. 2.)
5
have count 3, possession of a controlled substance, reduced to a
misdemeanor.
Anticipating that the court would grant the requested
Proposition 47 relief and resentence him on count 3, Yacoub also
filed a new Romero motion, requesting that the court strike one
or both of the prior conviction allegations on counts 1 and 2. He
argued that he fell outside the spirit of the Three Strikes law
because the commitment offenses and his prior strikes were
remote in time and did not involve violence or injury; the strike
priors were committed a few days apart, just after he turned 18
years old, and he served a single, concurrent California Youth
Authority (CYA) term on both; his prior criminality was
attributable to his substance abuse problem; his prison behavior
and accomplishments demonstrated his rehabilitation; and he
was 44 years old when the 2019 Romero motion was filed.
Additionally, the sentencing judge (who had since retired) had
indicated he was not opposed to commutation of Yacoub’s
sentence because he believed the time served was sufficient.
The People opposed the Romero motion, arguing, inter alia,
that Yacoub’s criminal history was extensive; his conduct during
the commitment offenses was egregious; he had a disciplinary
history while in prison for possession of contraband cellular
telephones, money, and marijuana; he had been placed in
administrative segregation as part of an investigation into
allegations that he was involved in drug trafficking while
incarcerated; and the original sentencing court had already ruled
on the Romero motion. The resentencing court7 found Yacoub
7
For the sake of clarity, we hereinafter refer to the original
sentencing court as the 1999 court and the court that denied
Yacoub’s Romero motion in 2019 as the resentencing court.
6
was ineligible for Proposition 36 resentencing on counts 1 and 2
because he had been armed with a firearm or deadly weapon
during the offenses. It granted the Proposition 47 petition as to
count 3, and resentenced Yacoub on that count to 364 days in any
penal institution, with credit for 364 days served.
In October 2019, the court declined to exercise its discretion
under Romero to strike either of the two prior felony conviction
allegations on counts 1 or 2, reasoning as follows. Yacoub’s
current crimes were more serious than his priors, indicating the
severity of his criminal conduct had increased. He had made no
attempt to extinguish the fire or warn other residents of the
danger, and the fire burned down two of the four units in the
building. In prison, he had been found guilty of seven serious
rules violations; the most recent, in April 2018, was for
possession of a cell phone, which was “particularly troubling
because cell phones are routinely used to conduct illicit business
in and out of the prison walls.” While Yacoub had “made some
advances in education, self-help programming, and work history
while incarcerated,” the court did not find these advancements to
be sufficient to support grant of the motion. The court also noted
that at a September 2019 hearing, the Board of Parole Hearings
(BPH) had denied parole for five years. “Most importantly,” the
court reasoned that “petitioner has received extensive Romero
consideration by both the trial court which denied the motion and
the Court of Appeal which upheld the trial court’s ruling. . . .”
DISCUSSION
1. The resentencing court did not abuse its discretion by
denying Yacoub’s Romero motion
Yacoub argues that the 2019 denial of his Romero motion
was an abuse of discretion. We disagree.
7
a. Applicable legal principles
In furtherance of justice, a trial court may strike or dismiss
a prior conviction allegation. (§ 1385, subd. (a); Romero, supra,13 Cal.4th at p. 504.) When considering whether to do so, it
considers “whether, in light of the 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; People v. Solis (2015) 232 Cal.App.4th 1108, 1124.) The
court must also consider the defendant’s constitutional rights and
society’s interest in the prosecution of crimes. (People v. Johnson
(2015) 61 Cal.4th 674, 688–689.)
We review the court’s ruling under the deferential abuse of
discretion standard; that is, the defendant has the burden to
show that the sentencing decision was irrational or arbitrary.
(People v. Carmony (2004) 33 Cal.4th 367, 376–377 (Carmony).)
It is “ ‘not enough to show that reasonable people might disagree
about whether to strike one or more’ prior conviction allegations.”
(Id. at p. 378.) The Three Strikes law “not only establishes a
sentencing norm, it carefully circumscribes the trial court’s power
to depart from this norm . . . . [T]he law creates a strong
presumption that any sentence that conforms to these sentencing
norms is both rational and proper.” (Ibid.) Thus, a court abuses
its discretion when it was unaware of its discretion to strike,
considered impermissible factors, failed to consider relevant
factors, or rendered a ruling that is arbitrary, capricious or
patently absurd under the specific facts of the particular case.
(Ibid.; People v. Avila (2020) 57 Cal.App.5th 1134, 1141 (Avila).)
8
Our Supreme Court has explained that only extraordinary
circumstances justify a finding that a career criminal is outside
the Three Strikes law. (Carmony, supra, 33 Cal.4th at p. 378.)
Therefore, “the circumstances where no reasonable people could
disagree that the criminal falls outside the spirit of the three
strikes scheme must be even more extraordinary.” (Ibid.) “ ‘ “In
the absence of such a showing, the trial court is presumed to have
acted to achieve legitimate sentencing objectives, and its
discretionary determination to impose a particular sentence will
not be set aside on review.” ’ [Citation.]” (Id. at pp. 376–377.)
“ ‘ “ ‘An appellate tribunal is neither authorized nor warranted in
substituting its judgment for the judgment of the trial judge.’ ” ’ ”
(Id. at p. 377.) However, not every recidivist falls within the
spirit of the Three Strikes law. The fact that only extraordinary
circumstances justify deviating from the Three Strikes
sentencing scheme does not mean such cases do not exist. (Avila,
supra, 57 Cal.App.5th at p. 1140.)
When part of a sentence is modified pursuant to
Proposition 47, a full resentencing as to all counts is appropriate.
(People v. Buycks (2018) 5 Cal.5th 857, 893–894; see People v.
Hubbard (2018) 27 Cal.App.5th 9, 12.) In light of this principle,
People v. Hubbard concluded that, when a defendant’s sentence is
recalled pursuant to Proposition 36, the trial court has
jurisdiction to consider a request for discretionary relief under
section 1385 and Romero. (People v. Hubbard, at pp. 12–13;
cf. People v. Buycks, at p. 893 [when part of a sentence is stricken
on review, on remand “ ‘a full resentencing as to all counts is
appropriate, so the trial court can exercise its sentencing
discretion in light of the changed circumstances’ ”].) The same is
true regarding a Proposition 47 resentencing.
9
b. Application here
In the instant matter, we discern no abuse of discretion.
The resentencing court expressly recognized that it had the
authority to reconsider the entire sentence. It articulated the
appropriate standard as stated in People v. Williams, supra, 17
Cal.4th at page 161, i.e., that it was required to consider the
nature and circumstances of the current and prior felonies and
the particulars of Yacoub’s background, character, and prospects.
It did not consider impermissible criteria. It expressly discussed,
in its written ruling, the facts of the commitment offense,
Yacoub’s criminal history, and his prison record.
Yacoub nonetheless contends the resentencing court failed
to consider most of the relevant factors, including the
circumstances of his convictions, his age, drug addiction, and
prison history. The record does not support this contention. At
the hearing, defense counsel focused her remarks on many of
these points; all were stressed in Yacoub’s written motion. The
motion incorporated by reference exhibits and materials that
Yacoub had presented to the resentencing court in regard to the
Proposition 36 and 47 petitions, including numerous documents
regarding his prison record and accomplishments. There is thus
no basis for us to assume the resentencing court ignored these
arguments and materials.8 Instead, we presume the court
considered all the relevant factors in the absence of an
8
Yacoub faults the resentencing court for providing only a
“cursory evaluation” of his prison accomplishments in its written
ruling, arguing this demonstrates inadequate consideration of the
materials presented. But the resentencing court was not
required to provide a lengthy or detailed analysis of every
document presented or point made.
10
affirmative record to the contrary. (People v. Myers (1999) 69
Cal.App.4th 305, 310; People v. Pearson (2008) 165 Cal.App.4th
740, 749.)
The real crux of Yacoub’s arguments appears to be that the
resentencing court did not accord sufficient weight to these
factors. We address his arguments regarding each factor in turn,
and conclude the resentencing court’s evaluation was neither
arbitrary nor capricious.
(i) Circumstances of the commitment offenses
Yacoub suggests that the circumstances of the commitment
offenses did not support denial of his motion. He argues that,
although the fire caused “extensive damage to property,” no one
was injured; furthermore, “the evidence was not clear that
appellant even directly participated in the activity that caused
the fire.” But the fire originated with the methamphetamine
laboratory in his apartment. He pled no contest to
manufacturing methamphetamine and to recklessly causing the
fire. His pleas established his direct participation. The fact there
were no injuries was not attributable to him; he fled without
alerting other residents or calling the fire department. These
actions were both callous and highly dangerous. As he
acknowledges, the fire could have caused grave harm. As the
1999 court reasoned—and Yacoub’s counsel acknowledged at the
original sentencing hearing—“operating a methamphetamine
laboratory in an apartment building shows a total disregard for
the safety of the other people in the apartment building.”
In a supplemental brief, citing this Division’s recent
opinion in Avila, Yacoub argues that the 1999 court improperly
“speculat[ed]” that the fire “could very well have cost the lives of
several people in that apartment building,” and the resentencing
11
court simply relied on this finding. The 1999 court’s analysis was
improper, he urges, because a ruling on a Romero motion
“requires consideration of the nature and circumstances of the
crime actually committed, not a crime that might have occurred.”
(Avila, supra, 57 Cal.App.5th at p. 1142.)
This contention fails for several reasons. First, it is not
clear that the resentencing court simply adopted the 1999 court’s
reasoning rather than independently coming to its own, common
sense-based, conclusions. Second, if Yacoub believed the 1999
court abused its discretion by reasoning that the fire could have
caused the loss of life, he should have objected at the original
sentencing hearing or raised that contention in his original
appeal. He did neither, and the argument is therefore waived.
(Cf. People v. Jordan (2018) 21 Cal.App.5th 1136, 1144–1145;
People v. Navarro (2013) 212 Cal.App.4th 1336, 1347 & fn. 9.)
Third, Avila does not stand for the proposition that a court
is precluded from determining that a potential danger to others
inheres in an offense. In Avila, the defendant demanded money
(or “rent”) from two persons who were selling oranges near a
freeway off-ramp, and stomped on their bags of oranges. (Avila,
supra, 57 Cal.App.5th at p. 1139.) The trial court denied Avila’s
Romero motion, reasoning, among other things, that “had
someone not called the police, ‘who knows what would have
happened.’ ” (Id. at p. 1142.) Avila concluded that the court’s
speculation about what might have happened “impl[ied] 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.” (Ibid.) In contrast, the resentencing
court here did not imagine that Yacoub had committed an
uncharged future crime; it reasonably considered the potential
12
consequences from an actual fire that Yacoub actually started,
that actually burned part of the apartment building.9
Further, the facts in Avila are readily distinguishable from
the facts here. In Avila, the defendant’s current offense was
squashing oranges in a failed attempt to commit extortion or
robbery. (Avila, supra, 57 Cal.App.5th at p. 1142.) Yacoub’s
current offenses, in contrast, were manufacturing
methamphetamine in a residential apartment building, resulting
in a fire that burned a portion of that building, while possessing a
firearm and methamphetamine. The commitment offenses in the
two cases are not comparable.
(ii) Consideration of Yacoub’s strike priors and
criminal history
Yacoub argues that the resentencing court gave
inappropriate weight to several factors related to his criminal
history and the prior strike convictions: his minimal prior record,
the absence of violence, the remoteness of the prior strike
offenses, and his youth.
According to a probation report, in March 1991 Yacoub
suffered a sustained juvenile petition for shooting at an
9
Yacoub also complains that the 1999 court abused its
discretion by considering the fact that “[w]hile [Yacoub] was
manufacturing methamphetamine and arming himself with
firearms . . . he was cohabiting with a minor, and got her
pregnant.” It is far from clear that the 1999 court actually relied
upon the cohabitation and pregnancy as a basis for its decision; it
mentioned these circumstances only once, in passing. Even if it
had relied on these facts, Yacoub failed to object or raise the issue
in his direct appeal. And there is no showing that the
cohabitation and pregnancy factored into the resentencing court’s
decision.
13
uninhabited building, a barn (§ 247, subd. (b)), and was placed
home on probation. In May 1992, another juvenile petition,
alleging residential burglary (§ 459) was sustained, and Yacoub
was sent to camp. Yacoub committed the two “strike” priors a
few days after his 18th birthday. In the first strike prior, on
December 14, 1992, Yacoub smashed open the garage door to a
residence, ransacked the home, and stole a handgun, electronics,
money, and wrapped Christmas gifts. He pawned or sold some of
the items. On December 17, 1992, Yacoub and two compatriots
kicked down the door of a Palmdale residence and stole $4,500
worth of property, including a pistol, a rifle, money, electronics,
and jewelry. Yacoub pled guilty to burglary in both cases and
was sentenced to the low term of two years, with sentence on
both cases to be served concurrently at the California Youth
Authority. In December 1995, he was charged with another
burglary and petty theft with a prior, a violation of his parole.
He pled no contest to misdemeanor petty theft, and was
sentenced to a year in jail. The commitment offenses occurred in
November 1998.
Thus, Yacoub’s record is not as insignificant as he suggests,
and the resentencing court correctly reasoned that the severity of
his crimes had increased over time. As the 1999 court opined, “in
his relatively short life Mr. Yacoub has accumulated a
remarkable number of convictions for criminal offenses[.]”
Although Yacoub argues that his offenses were all nonviolent, the
resentencing court could reasonably have discounted this
argument. Certainly, the fact that a defendant’s crimes did not
include actual violence may be, in combination with other factors,
a circumstance showing he or she falls outside the spirit of the
Three Strikes sentencing scheme. (Avila, supra, 57 Cal.App.5th
14at pp. 1140–1141.) But notably, almost all Yacoub’s offenses
involved firearms: he fired shots at a building in his first offense,
stole guns in each of the 1992 burglaries, and possessed a gun
when manufacturing methamphetamine. He also attempted to
grab an officer’s firearm when arrested. Moreover, burglary laws
“ ‘ “are based primarily upon a recognition of the dangers to
personal safety created by the usual burglary situation—the
danger that the intruder will harm the occupants in attempting
to perpetrate the intended crime or to escape and the danger that
the occupants will in anger or panic react violently to the
invasion, thereby inviting more violence.” ’ ” (Magness v.
Superior Court (2012) 54 Cal.4th 270, 275.)
People v. Garcia (1999) 20 Cal.4th 490, cited by Yacoub,
does not compel a contrary conclusion. There, the trial court
struck prior conviction allegations as to one count but not
another, resulting in a sentence of 31 years and four months to
life. (Id. at pp. 495, 503.) Our Supreme Court held that the
court’s decision to strike the prior conviction allegations as to one
of the counts did not fall outside the bounds of reason because,
among other things, the prior strikes all arose from a single
period of aberrant behavior for which the defendant served a
single prison term. (Id. at p. 503.) Assuming arguendo that
Yacoub’s two prior strikes also arose from a single period of
aberrant behavior, Garcia did not hold that the court was
required to strike the priors, just that doing so was not outside
the bounds of reason. (Ibid.) And, the 1999 court’s ruling was
similar to that in Garcia: it granted the Romero motion in part.
We are not persuaded that the resentencing court should
have found the remoteness of Yacoub’s prior strikes was a
mitigating circumstance. (See Avila, supra, 57 Cal.App.5th at
15
p. 1141 [remoteness is a factor in mitigation, but is insufficient,
by itself, to remove a defendant from the spirit of the Three
Strikes law].) Comparing himself to Avila—whose strike priors
occurred over 25 years before the commitment offenses—Yacoub
argues that his strike priors were likewise remote at the time of
resentencing, because he has been incarcerated for two decades.
But the remoteness factors do not operate to Yacoub’s advantage
here. Remoteness is a mitigating factor where it “carries the
connotation of a crime-free cleansing period of rehabilitation after
a defendant has had the opportunity to reflect upon the error of
his or her ways.” (People v. Humphrey (1997) 58 Cal.App.4th
809, 813; see People v. Gaston (1999) 74 Cal.App.4th 310, 321
[leading a crime-free life between the strike priors and current
crimes “would give significance to the remoteness in time of those
strikes”].) As he acknowledges, Yacoub’s priors were not remote
when he committed the current offenses. Since then, he has been
incarcerated, where, presumably, his opportunities to commit
crimes are curtailed. The passage of time, therefore, is not a
mitigating circumstance in the sense discussed in Avila. Indeed,
under Yacoub’s theory, whenever a Three Strikes defendant has
served a significant portion of his or her sentence, the strike
priors would always be deemed remote, potentially creating an
end run around Proposition 36—which provides that some
inmates, such as Yacoub, are ineligible for relief.
Yacoub further argues that his age at the time of the prior
strikes and the commitment offenses “should warrant striking
the two strike priors.”10 While Yacoub’s age is not dispositive, we
10 Yacoub also argues that his current age, 45 at the time he
was resentenced, “mirrors that of” the Avila defendant, and is a
16
agree that it is a mitigating factor. (See Avila, supra, 57
Cal.App.5th at pp. 1141–1142.) “This is in line with the
increasing recognition that young adults are constitutionally
different from adults for sentencing purposes because of their
diminished culpability and greater prospects for reform.” (Id. at
p. 1142; see Roper v. Simmons (2005) 543 U.S. 551, 569–570.)
But here, unlike in Avila, there is no indication that the
resentencing court believed it could not consider age as a
mitigating factor. (See Avila, at p. 1142.) Further, the 1999
court expressly took Yacoub’s age into consideration and found it
supported partial grant of the Romero motion. Thus, his age has
been taken into account in formulating his sentence.
(iii) Drug addiction and steps toward recovery
Next, Yacoub argues that the trial court erroneously
ignored his “struggle with drug addiction and his efforts to
combat it.” Longstanding drug addiction can be a mitigating
factor if the defendant has taken steps to address the problem; it
has little mitigating value where the opposite is true. (Avila,
supra, 57 Cal.5th at pp. 1143–1144; People v. Gaston, supra, 74
Cal.App.4th at p. 322; People v. Martinez (1999) 71 Cal.App.4th
1502, 1511; People v. Williams, supra, 17 Cal.4th at p. 162.)
mitigating factor. Not so. In Avila, we explained that Avila’s
age, 47 when sentenced, was relevant to consideration of his
background, character, and prospects. (Avila, supra, 57
Cal.App.5th at p. 1144.) “Although Avila’s middle-age status
alone does not remove him from the spirit of the Three Strikes
law [citation], given his age, his three strikes sentence coupled
with the determinate term means he will likely die in prison.”
(Ibid.) Yacoub was not middle-aged when sentenced; he was 24.
He has already served enough time to be considered for parole.
Thus, Yacoub does not stand in the same position as Avila.
17
Here, Yacoub presented documentation to the resentencing court
that he has participated in Alcoholics Anonymous and/or
Narcotics Anonymous groups from 2010 through 2019, and in
2002 and 2003, while incarcerated. In April 2019, he completed a
Substance Abuse Treatment Group program that entailed 105
hours of cognitive behavioral therapy. In April 2018, he
completed a Criminon “Overcoming Addiction” course. And in
2014, he completed an intensive 16-session treatment program
conducted by the Addiction Recovery Counseling program.
Yacoub’s efforts to address his methamphetamine addiction are
admirable and mitigate in his favor. And, indeed, the 1999
sentencing court cited as one of the factors supporting its partial
grant of the original Romero motion that Yacoub’s criminal
history “appears to be related to the consumption of . . . [a]
controlled substance.”
(iv) Prison record and accomplishments
Yacoub further points to his prison record as evidence he
falls outside the spirit of the Three Strikes law. While
incarcerated he has obtained his general education development
(GED) certificate, and has worked toward his Associate of Arts
degree and a certificate in a business program, in addition to
taking other courses and obtaining good grades. He has also
completed or participated in multiple programs—some quite
lengthy—geared to assist prisoners with taking responsibility for
the impact of their crimes and making improvements in their
lives in areas such as, inter alia, communication and anger
management.
He has been employed in a variety of jobs while
incarcerated, such as working as a clerk, lead porter, disability
assistant, and custodian, among other positions, and has received
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exceptional or above average reviews. Supervisors have
characterized him as courteous, hard working, efficient and
responsible, honest, and intelligent, with a “great learning
ability” and a “great attitude.” He has also earned certificates in
a variety of vocational disciplines and participated in community
service oriented activities. Laudatory “chronos” and memoranda
from prison personnel praise his honesty, work performance,
work ethic, reliability, maturity, commitment to rehabilitation,
personal growth, and remorse, and opine that he would be an
asset to the community in the future.
While incarcerated, Yacoub has committed six serious rules
violations. In November 2010, June 2011, and April 2018, he was
found in possession of cellular telephones, one hidden inside a
hollowed-out bar of soap. In September 2008, he was found in
possession of two $50 bills hidden in a compact disc case. In
February 2011, he tested positive for marijuana after a dog
alerted to lockers in his cell, and was found guilty of possessing
marijuana. In 2002, he was twice found to have disobeyed a
direct order. He also received one administrative rules violation
in December 2000, for failing to obey an order to return to his
cell.
Yacoub’s educational and programming achievements, as
well as his favorable work history, are commendable indeed, and
tend to support a conclusion that he no longer falls within the
spirit of the Three Strikes law at the time of resentencing.
However, his rules violations over the years provide some
counterbalance to his achievements. In particular, his repeated
possession of cellular telephones, his possession of contraband
money, and marijuana, suggest he is not always able to conform
to the institutional rules and, at least as of 2011—when he was
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attending AA or NA—he had not fully conquered his substance
abuse issues. While most of these violations were not recent, the
2018 cellular telephone possession was. The fact the violation
was the same as two prior violations suggests whatever
motivated him to violate prison rules and possess the phones in
2010 and 2011 is still a concern.
(v) Conclusion
In light of Yacoub’s age when he committed the strike
priors and commitment offense, his attempts to address his
substance abuse problems while in prison, and the other
favorable aspects of his prison record, a reasonable person might
view him as outside the spirit of the Three Strikes law. But, a
reasonable person considering the serious nature of his
commitment offenses, his criminal history, some aspects of his
prison conduct, and the fact his youth and drug problems were
already taken into account in the 1999 court’s original sentence,
might conclude otherwise. In short, Yacoub has not shown that
this is an extraordinary case in which no reasonable person could
agree that he falls within the spirit of the Three Strikes law.
(See Carmony, supra, 33 Cal.4th at p. 378.) Under these
circumstances, we are not “ ‘authorized nor warranted in
substituting’ ” our judgment for that of the trial court. (Id. at
p. 377.) Accordingly, we must affirm the resentencing court’s
order.
2. Yacoub’s sentence does not amount to cruel or unusual
punishment
In his supplemental brief, Yacoub argues that his sentence
of 25 years to life amounts to cruel or unusual punishment under
the California Constitution.
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The record before us does not reflect that Yacoub objected
that his sentence was cruel or unusual at either the 1999
sentencing or the 2019 resentencing. Accordingly, he has
forfeited this claim. (People v. Speight (2014) 227 Cal.App.4th
1229, 1247 [a defendant’s “failure to contemporaneously object
that his sentence constitutes cruel and unusual punishment
forfeits the claim on appellate review”]; see People v. Baker (2018)
20 Cal.App.5th 711, 720.)
His contentions fail on the merits in any event. A
punishment is cruel or unusual in violation of the California
Constitution “if, although not cruel or unusual in its method, it 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; Avila, supra, 57
Cal.App.5th at p. 1145; People v. Baker, supra, 20 Cal.App.5th at
p. 723.) “In our tripartite system of government, the legislative
branch defines crimes and prescribes punishment. [Citation.] It
is therefore the rare case where a court could declare the length
of a sentence mandated by the Legislature unconstitutionally
excessive.” (Avila, at p. 1145; People v. Baker, at p. 724 [“ ‘Only
in the rarest of cases could a court declare that the length of a
sentence mandated by the Legislature is unconstitutionally
excessive’ ”].)
In re Lynch described three “techniques” used in
determining whether a sentence is cruel or unusual under the
California Constitution: (1) examination of the nature of the
offense and/or the offender; (2) comparison of the punishment
with that prescribed for more serious crimes in California; and
(3) comparison of the punishment with that given for the same
offense in other jurisdictions. (In re Lynch, supra, 8 Cal.3d at
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pp. 425–427; Avila, supra, 57 Cal.App.5th at p. 1145; People v.
Baker, supra, 20 Cal.App.5th at p. 723.)
Yacoub does not address the second and third prongs of the
Lynch inquiry. Accordingly, we focus on the first: the nature of
the offense and the offender. (See People v. Em (2009) 171
Cal.App.4th 964, 972.) “In assessing the nature of the offense, a
court should consider the circumstances of the particular offense
such as the defendant’s motive, the way the crime was
committed, the extent of his involvement and the consequences of
his acts. [Citation.] In analyzing the nature of the offender, a
court should consider his ‘age, prior criminality, personal
characteristics, and state of mind.’ [Citation.]” (People v. Felix
(2002) 108 Cal.App.4th 994, 1000; Avila, supra, 57 Cal.App.5th at
p. 1146.) Whether a punishment is cruel or unusual is a question
of law that we independently review; however, we consider any
disputed facts in the light most favorable to the judgment.
(People v. Edwards (2019) 34 Cal.App.5th 183, 190; People v.
Mantanez (2002) 98 Cal.App.4th 354, 358.)
Examination of these factors does not demonstrate that
Yacoub has met his burden to show his case is one of those
rarities in which the sentence is cruel or unusual.
There is little about the nature of the offense to suggest
disproportionality. Under the circumstances here, recklessly
causing a fire was an extremely serious offense. The fire was
caused by Yacoub’s choice to illegally manufacture
methamphetamine in a residential apartment building, not by
some legal, but reckless, activity that went awry. Manufacturing
methamphetamine in a residential building is an explosive
combination. It is common knowledge that the manufacturing
process is fraught with the danger of an explosion or fire. When a
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fire actually erupted, Yacoub took no steps to mitigate the harm
his conduct caused: he left without alerting other occupants of the
apartment building or calling the fire department, demonstrating
his utter disregard for the safety of anyone but himself. The
consequences of his actions were serious: while the monetary loss
caused by the fire is not reflected in the record, he does not
dispute that the property damage must have been extensive. His
actions also put first responders at risk. And, he illegally
possessed a firearm in the apartment. The Legislature has
enacted numerous laws enhancing sentences when firearms are
involved, demonstrating that Yacoub’s firearm possession made
the offense even more serious. (See generally People v. Palacios
(2007) 41 Cal.4th 720, 725 [noting legislative intent behind
section 12022.53].)
It is a reasonable inference that Yacoub’s motivation was
the production of methamphetamine for sale, for personal gain.
The fact he had a gun in the apartment reinforces this inference.
Aiming to put an illicit drug into the illegal supply chain is not a
motive suggesting disproportionality. Although Yacoub argues
he only intended to make the drug for personal use, this
conclusion is not compelled by the record, and we view the facts
in the light most favorable to the judgment. (People v. Edwards,
supra, 34 Cal.App.5th at p. 190.) Yacoub’s pleas indicate he was
directly responsible for the methamphetamine laboratory, not
just a passive participant who allowed someone else to use his
apartment, as he suggests. Yacoub’s offense stands in sharp
contrast to that of the Avila defendant, who simply caused $20 in
damage when he “squashed oranges and was sentenced to life” as
the result of a weak attempt at extortion and robbery. (See Avila,
supra, 57 Cal.App.5th at pp. 1146–1147.) We cannot say the
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nature of the offense is such that the sentence imposed shocks
the conscience.
As to the nature of the offender, Yacoub was almost 24
years old when he committed the current offense. While he was
youthful, he was not a juvenile. (See generally People v. Argeta
(2012) 210 Cal.App.4th 1478, 1482 [rejecting argument that
sentence was categorically cruel and/or unusual because
defendant committed offense when he was only 18 years, 5
months old]; People v. Perez (2016) 3 Cal.App.5th 612, 617; People
v. Edwards, supra, 34 Cal.App.5th at p. 190.) Moreover, he had
already committed three burglaries, but failed to learn from the
less severe consequences imposed on those offenses. As we have
discussed ante, neither the “strike” burglaries nor Yacoub’s
criminal history are insignificant. Regarding his drug addiction,
as the 1999 court pointed out, he presumably lacked access to
methamphetamine during his previous incarceration, yet went
“back to his habit” when released. While “[i]t is notable that
defendant appears to have become seriously committed to
seeking treatment after incarceration on charges carrying a life
term,” the “law still holds such an individual responsible for his
or her behavior.” (People v. Martinez, supra, 71 Cal.App.4th at
p. 1511.) Further, Yacoub is “ ‘not subject to a life sentence
merely on the basis of his current offense but on the basis of his
recidivist behavior. Recidivism in the commission of multiple
felonies poses a manifest danger to society[,] justifying the
imposition of longer sentences for subsequent offenses.
[Citations.]’ ” (People v. Mantanez, supra, 98 Cal.App.4th at
p. 366.) And, as we have explained in regard to the Romero
motion, the remoteness of the priors is not significant here.
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Yacoub points out that since he was sentenced in 1999, the
law has undergone significant changes, demonstrating that
“legislators and courts are reconsidering the length of sentences
in different contexts to decrease their severity.” (Avila, supra,
57 Cal.App.5th at p. 1151.) This is certainly true, as we stated in
Avila. But notably, these ameliorative changes do not apply to
Yacoub: under Proposition 36, he is ineligible for relief because he
was armed with a firearm during the current offense. (§ 667,
subd. (e)(2)(C)(iii); People v. Johnson, supra, 61 Cal.4th at p. 681.)
Rather than suggesting his sentence is unconstitutional, the
Proposition 36 exclusion for being armed with a firearm
highlights the seriousness of Yacoub’s current offense.
In sum, Yacoub’s sentence is not grossly disproportionate.
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
EDMON, P. J.
We concur:
LAVIN, J.
EGERTON, J.
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