People v. Vailes CA4/1

Filed 12/15/20 P. v. Vailes CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D076125
Plaintiff and Respondent,
(Super. Ct. No. SCD270590)
v.
MURREL WAYNE VAILES III,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Steven E. Stone, Judge. Affirmed as modified.
Robert L.S. Angres, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters and Julie L.
Garland, Assistant Attorneys General, Eric A. Swenson and Allison V.
Acosta, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Murrel Wayne Vailes III of robbery (Pen. Code,1
§ 211; counts 1, 2, 5 and 6) assault with a semiautomatic firearm (§ 245,
subd. (b); counts 3 and 4), possession of a firearm by a felon (§ 29800, subd.
(a)(1); count 7), and possession of firearm following a juvenile adjudication
(§ 29820; count 8). As to counts 1, 2 and 6, the jury found Vailes was a
principal armed with a firearm (§ 12022, subd. (a)(1)), that as to counts 3 and
4 he personally used a firearm (§ 12022.5, subd. (a)), and as to count 5, he
personally and intentionally used a firearm (§ 12022.53, subd. (b)). In a
bifurcated proceeding, the trial court found true allegations that as to each
count Vailes committed all of the offenses while released from custody on bail
(§ 12022.1, subd. (b)) and that he had suffered three prior strike convictions
within the meaning of the “Three Strikes” law as well as one prior serious
felony conviction (§§ 667, subd. (a)(1), (b)-(i), 1170.12, 1192.7, subd. (c)).
In June 2019, the court sentenced Vailes to a determinate prison term
of 18 years plus an indeterminate term of life in prison with no parole
eligibility for 129 years. Specifically, on count 1 it imposed 25 years to life
plus a one-year firearm enhancement, five years for the serious felony
conviction, and two years for the on-bail enhancement; 25 years to life plus a
one-year firearm use enhancement on count 2; 27 years to life plus a four-
year firearm use enhancement on each of counts 3 and 4; and 25 years to life
plus a one-year firearm use enhancement on count 6. The court stayed under
section 654 the punishment for the remaining counts and enhancements. It
awarded Vailes four days of presentence custody credit (§ 2900.5).
On appeal, Vailes contends his statutory exclusion from early parole
consideration due to his Three Strikes sentence (see § 3051, subd. (h)) as
applied to him denies him equal protection of the law. He contends that if we
1 Undesignated statutory references are to the Penal Code.
2
reject his equal protection challenge, his de facto life without the possibility of
parole (LWOP) sentence is cruel and/or unusual in violation of the Eighth
Amendment of the United States Constitution and Article I, section 17 of the
California Constitution. Vailes further contends that if his defense counsel
forfeited the latter argument, he received prejudicially ineffective assistance
of counsel, warranting remand for resentencing. Vailes finally argues the
abstract of judgment must be corrected to reflect the trial court’s section 654
stay of his count 7 sentence.
The People concede the latter point and we agree the abstract of
judgment must be corrected. The People maintain Vailes forfeited the first
two contentions by failing to raise them below, but in any event his recidivist
sentence is not constitutionally infirm under either theory Vailes advances.
We reject Vailes’s constitutional challenges and as modified, we affirm the
judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In January 2017, Vailes committed several robberies, two of them at
gunpoint and two accompanied by another perpetrator. Given the nature of
his appellate claims, we need only briefly summarize the facts of the offenses.
Counts 1 and 2
On January 12, 2017, two men took a wallet, cell phones and money
from A.H. and his wife after purporting to be prospective purchasers of a
phone A.H. was selling. One of the men waved a black semiautomatic
handgun at A.H., whose young children were with him and his wife at the
time. A.H. was unable to see the men’s faces clearly.
Police reviewed records of the online platform on which the sales
transactions were to occur and found Vailes’s accounts for them, in which he
used a pseudonym.
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Counts 3, 4, 5, 7 and 8
The next day, Vailes robbed J.A. and J.A.’s then-girlfriend J.K. at
gunpoint, taking a pair of shoes J.A. was selling and a jacket.
J.A. and J.K. later spoke with family members about the incident,
leading them to find images of Vailes on social media. J.K. befriended Vailes
on Snapchat, where she and J.A. saw a photograph and video of Vailes
holding the same gun used in the robbery and wearing the jacket and shoes
he took from J.A.
Count 6
Two days later, Vailes snatched a cell phone, box and duffle bag from
A.P. while A.P. was showing the phone to him for purposes of sale. A.P.
chased after Vailes but stopped when another man with a gun jumped in
front of him and pointed it at A.P.’s chest.
Post Arrest Conduct and Romero Motion
Following Vailes’s arrest, an investigator listened in on over 1,000
phone calls Vailes made to family and friends. Two hours after his arrest,
Vailes took part in a call regarding deleting his Facebook page. Vailes
discussed deleting various photographs and using code words about
purchasing an extended magazine for a firearm. Based on some of the phone
calls, the investigator became concerned that Vailes was arranging to
retaliate against the victims in this case.
During his sentencing hearing Vailes’s counsel moved to strike Vailes’s
prior convictions under People v. Superior Court (Romero) (1996) 13 Cal.4th
497 (Romero), pointing out they were committed when he was under 18 years
old, and the court could still impose a lengthy sentence if all strikes were
stricken. Counsel argued such relief was warranted because Vailes had
never received adequate treatment for his intellectual disability and behavior
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issues. Counsel sought a sentence that would allow Vailes to earn the ability
to get out of custody, observing Vailes did not fire shots, there was no
evidence the guns were loaded, and it was unclear in two instances whether
Vailes used a gun.
The prosecutor pointed out that in jail calls Vailes had used code words
to discuss firearms and gave green lights from custody in retaliation for a
shooting. He argued Vailes’s crimes were “extremely premeditated” and not
spur-of-the-moment, but took place over several days in anticipation of using
force and violence against multiple victims. The prosecutor pointed out
Vailes’s Facebook page showed he was a leader in the crimes and that he had
been convicted of three prior robberies, so he knew the consequences but
made a deliberate decision to commit more robberies with a gun. The
prosecutor argued that Vailes had opportunities and warning, but “every
time he escalates with violent behavior” and the only mitigation for him was
his date of birth.
The court denied the motion and declined to strike any strikes “in light
of the nature and circumstances of this case and [Vailes’s] background.” The
court ruled imposition of the Three Strikes sentence was just and warranted,
pointing out Vailes had committed 10 separate robberies before the current
offenses, which he committed while on bail pending sentencing for his 2016
offenses. It found Vailes’s current crimes were “well-planned, well-reasoned
sophisticated crimes,” as he found victims through the internet, created fake
accounts, and lured the victims to a location to more easily rob them. The
court found its sentence was “necessary to protect society, punish the
defendant, deter others from criminal conduct by demonstrating
consequences, and to prevent the defendant [from] committing new crime.”
5
DISCUSSION
I. Equal Protection Claim
A. Section 3051 and Application
In 2014, the Legislature enacted laws, including section 3051, that
provide a parole eligibility mechanism for juvenile offenders. (People v.
Franklin (2016) 63 Cal.4th 261, 277.)2 “[S]ection 3051 . . . requires the Board
[of Parole Hearings] to conduct a ‘youth offender parole hearing’ during the
15th, 20th, or 25th year of a juvenile offender’s incarceration. [Citation.] The
date of the hearing depends on the offender’s ‘[c]ontrolling offense,’ which is
defined as ‘the offense or enhancement for which any sentencing court
imposed the longest term of imprisonment.’ [Citation.] A juvenile offender
whose controlling offense carries a term of 25 years to life or greater is
‘eligible for release on parole by the board during his or her 25th year of
incarceration at a youth offender parole hearing, unless previously released
or entitled to an earlier parole consideration hearing pursuant to other
statutory provisions.’ [Citation.] The statute excludes several categories of
juvenile offenders from eligibility for a youth offender parole hearing: those
who are sentenced under the Three Strikes law [citation] or Jessica’s Law
2 In passing these laws, the Legislature explained that “ ‘youthfulness
both lessens a juvenile’s moral culpability and enhances the prospect that, as
a youth matures into an adult and neurological development occurs, these
individuals can become contributing members of society.’ [Citation.] Thus,
the bill’s purpose was ‘to establish a parole eligibility mechanism that
provides a person serving a sentence for crimes that he or she committed as a
juvenile the opportunity to obtain release when he or she has shown that he
or she has been rehabilitated and gained maturity.’ [Citation.] [¶] To this
end, section 3051 provides that an offender who committed a ‘controlling
offense’ as a youth is entitled to a ‘youth offender parole hearing’ after a fixed
period of years set by statute.” (In re Jenson (2018) 24 Cal.App.5th 266, 276-
277.)
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[citation], those who are sentenced to life without parole, and those who
commit another crime ‘subsequent to attaining 23 years of age . . . for which
malice aforethought is a necessary element of the crime or for which the
individual is sentenced to life in prison.’ ” (Franklin, at pp. 277-278.)
“Section 3051 thus reflects the Legislature’s judgment that 25 years is
the maximum amount of time that a juvenile offender may serve before
becoming eligible for parole. Apart from the categories of offenders expressly
excluded by the statute, section 3051 provides all juvenile offenders with a
parole hearing during or before their 25th year of incarceration. The statute
establishes what is, in the Legislature’s view, the appropriate time to
determine whether a juvenile offender has ‘rehabilitated and gained
maturity’ [citation] so that he or she may have ‘a meaningful opportunity to
obtain release’ [citation].” (People v. Franklin, supra, 63 Cal.4th at p. 278.)
The Legislature has since changed the age threshold to age 23 (Stats. 2015,
ch. 471, § 2) and now to age 25 (Stats. 2017, ch. 684, § 2.5, eff. Jan. 1, 2018).
(See People v. Contreras (2018) 4 Cal.5th 349, 381.)
Vailes was 19 years old when he committed the offenses. As a result of
his prior strike convictions—robberies committed in 2014 and 2016—he was
sentenced under the Three Strikes law to an aggregate indeterminate term of
129 years to life in prison, consisting of the above-summarized indeterminate
terms on counts 1, 2, 5 and 6. Under the version of section 3051 applicable
when he committed the offenses, Vailes’s sentence makes him statutorily
ineligible for a youth offender parole hearing. (Former § 3051, subd. (h)
[“This section shall not apply to cases in which sentencing occurs pursuant to
Section 1170.12, subdivisions (b) to (i), inclusive, of section 667”].)
B. Contentions
Characterizing his sentence as essentially LWOP, Vailes contends his
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categorical ineligibility for an early youth offender parole hearing violates his
rights under the federal and state equal protection clauses. He first suggests
that his lengthy sentence puts profound liberty interests at stake, warranting
strict scrutiny, which eliminates the presumption of constitutionality and
requires the People to establish a compelling state interest to justify the
law.3 However Vailes argues the law fails under any standard, thus he
maintains there is no rational basis to exclude him from early parole
consideration given he is an offender who never killed or physically harmed
any of the victims, or to treat him differently from others in his age group
based solely on his commission of prior offenses. He maintains there is no
rational explanation to give one who commits murder the benefit of section
3051, but deprive that benefit to a less culpable offender. Vailes also argues
exclusion of youthful offenders simply due to their commission of prior
offenses “defies logic.” He argues: “An offender’s criminal history in no way
3 Vailes’s arguments regarding strict scrutiny in part depend on People v.
Olivas (1976) 17 Cal.3d 236, which he states holds “a compelling state
interest must justify distinctions which affect personal liberty.” Olivas
addressed California Youth Authority commitments of juveniles convicted in
adult court for periods longer than the maximum prison sentence given to a
person over 21 years old for the same offense. (Olivas, at p. 239; People v.
K.P. (2018) 30 Cal.App.5th 331, 342.) In K.P., this court pointed out that the
California Supreme Court has explained that Olivas “should not be read as
requiring strict scrutiny review ‘whenever one challenges upon equal
protection grounds a penal statute or statutes that authorize different
sentences for comparable crimes.’ ” (K.P., at p. 343.) “Rather, where the
issue is not whether a deprivation of an individual’s liberty will occur, but
rather the duration of that deprivation, rational basis review is appropriate
because ‘ “ ‘ “the power to define crimes and fix penalties is vested exclusively
in the legislative branch.” ’ ” ’ ” (K.P., at p. 343.) In view of K.P., we are
unpersuaded that a fundamental interest is at stake here implicating strict
scrutiny analysis. Furthermore, Vailes does not argue he is a member of a
protected class, and section 3051 does not classify by race, national origin, or
any other suspect classification.
8
impacts the inherent disabilities of youth, i.e., impulsivity and the lack of
brain maturity, and courts have determined that a sentence that equates to
life with no possibility of parole should only extend to those youthful
offenders who clearly demonstrate ‘irreparable corruption.’ ” Vailes asks that
his sentence be modified to state he must be granted parole eligibility under
section 3051, subdivision (b)(3), and he should be entitled to a youthful
offender mitigation hearing. (People v. Franklin, supra, 63 Cal.4th at p. 284.)
The People respond that Vailes forfeited any equal protection claim by
failing to raise it below.4 They argue that Vailes’s point about his robberies
not resulting in physical harm or death takes issue not with section 3051’s
exclusion, but with the Three Strikes law, which permits lengthy sentences of
the sort he received. The People point out the trial court addressed these
concerns by declining Vailes’s request to dismiss his prior strike convictions,
explaining he had committed numerous other robberies, lured the victims to
the scene with deceptive and sophisticated means, used a gun in the present
offenses, and sought an extended magazine while in custody. They further
point out that Graham v. Florida (2010) 560 U.S. 48 and Miller v. Alabama
(2012) 567 U.S. 460 involved juveniles, whereas Vailes was an adult when he
4 We agree that the forfeiture rule applies to claims based on violations
of fundamental constitutional rights (In re Seaton (2004) 34 Cal.4th 193, 197-
198) and specifically “in the context of sentencing . . . .” (In re Sheena K.
(2007) 40 Cal.4th 875, 881.) Appellate courts acknowledge forfeiture applies
where a defendant fails to contemporaneously object in the lower court that
his sentence constitutes cruel and unusual punishment (People v. Speight
(2014) 227 Cal.App.4th 1229, 1247) and also where a defendant fails to assert
an equal protection violation. (See, e.g., People v. Rogers (2006) 39 Cal.4th
826, 854; People v. Burgener (2003) 29 Cal.4th 833, 860, fn. 3; People v. Hall
(2002) 101 Cal.App.4th 1009, 1024.) We will however address Vailes’s
constitutional challenges on the merits “ ‘to show counsel was not
constitutionally ineffective by failing to make a futile or meritless objection.’ ”
(People v. Baker (2018) 20 Cal.App.5th 711, 720.)
9
committed his offenses, and the Legislature had a rational basis to treat
recidivist young adults differently than non-recidivist young adults.
C. Standard of Review and Legal Principles
We review Vailes’s equal protection challenge de novo. (People v. Laird
(2018) 27 Cal.App.5th 458, 469, citing California Grocers Assn. v. City of Los
Angeles (2011) 52 Cal.4th 177, 208.) “The California equal protection clause
offers substantially similar protection to the federal equal protection clause.”
(People v. Laird, at p. 469.) “The concept of equal treatment under the laws
means that persons similarly situated regarding the legitimate purpose of the
law should receive like treatment. [Citation.] ‘ “The first prerequisite to a
meritorious claim under the equal protection clause is a showing that the
state has adopted a classification that affects two or more similarly situated
groups in an unequal manner.” [Citations.] This initial inquiry is not
whether persons are similarly situated for all purposes, but “whether they
are similarly situated for purposes of the law challenged.” ’ ” (People v.
Morales (2016) 63 Cal.4th 399, 408.)
Additionally, the Legislature can classify groups as different “ ‘so long
as a reasonable basis for the distinction exists.’ ” (People v. Laird, supra, 27
Cal.App.5th at p. 469.) “To mount a successful rational basis challenge, a
party must ‘ “negative every conceivable basis” ’ that might support the
disputed statutory disparity. [Citations.] If a plausible basis exists for the
disparity, ‘[e]qual protection analysis does not entitle the judiciary to second-
guess the wisdom, fairness, or logic of the law.’ ” (People v. Edwards (2019)
34 Cal.App.5th 183, 195-196; see also People v. Morales, supra, 63 Cal.4th at
p. 408; People v. Turnage (2012) 55 Cal.4th 62, 74.)
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D. Analysis
Vailes’s challenge relies in large part on People v. Edwards, supra, 34
Cal.App.5th 183, in which the court held section 3051’s categorical
ineligibility for offenders sentenced under the “One Strike” law had no
rational basis and violated such offenders’ right to equal protection. Edwards
reasoned One Strike offenders are similarly situated to youths who commit
intentional first degree murder who remain eligible for youth offender parole
hearings even though their crimes are regarded as more egregious than the
violent sex crimes falling within the One Strike law. (Id. at pp. 195-199.)
Edwards concluded the carve out in section 3051, subdivision (h) was
unconstitutional on its face, and remanded for the trial court to determine
whether the defendants there were afforded an adequate opportunity to make
a record of information relevant to a future youthful offender parole hearing.
(Id. at pp. 199-200.) Vailes asks us to disregard People v. Wilkes (2020) 46
Cal.App.5th 1159, which rejected an equal protection challenge by a Third
Strike offender like Vailes (People v. Wilkes, at pp. 1165-1166) as well as this
court’s opinion in People v. Williams (2020) 47 Cal.App.5th 475, 492-493,
review granted July 22, 2020, No. S262229), which likewise disagreed with
Edwards.5
5 The California Supreme Court has taken up the equal protection issue
raised in People v. Edwards, supra, 34 Cal.App.5th 183 as to youths convicted
and sentenced for sex crimes under the One Strike law. In People v.
Williams, supra, 47 Cal.App.5th 475, review granted, a panel of this court,
applying a rational basis test, rejected a One Strike defendant’s equal
protection challenge based on Edwards. (Id. at pp. 490, 493, rev. gr.) Our
colleagues held “the threat of recidivism by violent sexual offenders—as
demonstrated by the Legislature’s enactment of several comprehensive
statutory schemes to curb such recidivism among such offenders—provides a
rational basis for the Legislature’s decision to exclude one-strikers from the
reach of section 3051.” (Williams, at p. 493, rev. gr.)
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In People v. Wilkes, supra, 46 Cal.App.5th 1159, the First District,
Division Five Court of Appeal rejected a similar equal protection challenge by
a defendant sentenced under the Three Strikes law. There, the jury found
the defendant guilty of, among other offenses, attempted murder and found
true an allegation it was committed willfully, deliberately and with
premeditation. (Id. at pp. 1163-1164.) The defendant admitted prior
conviction allegations and the court sentenced him under the Three Strikes
law to a prison term of 59 years four months to life. (Id. at p. 1164.) On
appeal, the defendant, who was 25 years old when he committed the offenses,
argued the differential treatment of Three Strikes youth offenders violated
his right to equal protection; that he was similarly situated to youth offenders
who were not sentenced pursuant to the Three Strikes law, and there was no
rational basis for the different treatment. (Id. at pp. 1164-1165.)
The Wilkes court disagreed: “Numerous courts have rejected equal
protection challenges to the differential treatment of Three Strikes offenders,
concluding that such offenders are not similarly situated to non-recidivist
offenders and/or that a rational basis exists to treat them differently. As one
such court reasoned: ‘A person who has committed and been convicted of two
serious or violent felonies before the instant offense is a recidivist who has
engaged in significant antisocial behavior and who has not benefited from the
intervention of the criminal justice system . . . . It is reasonable for the
Legislature to distinguish between those felons . . . who come to court with a
history of serious or violent felony convictions and those who do not.’
[Citations.] [¶] The reasoning of these cases applies here. The purpose of
section 3051 is ‘to give youthful offenders “a meaningful opportunity to obtain
release” after they have served at least 15, 20, or 25 years in prison (§ 3051,
subd. (e)) and made “ ‘a showing of rehabilitation and maturity’ ” [’] and ‘to
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account for neuroscience research that the human brain—especially those
portions responsible for judgment and decisionmaking—continues to develop
into a person’s mid-20s.’ [Citation.] Assuming a Three Strikes youth
offender is similarly situated to other youth offenders for purposes of section
3051, the Legislature could rationally determine that the former—‘a
recidivist who has engaged in significant antisocial behavior and who has not
benefited from the intervention of the criminal justice system’ [citation]—
presents too great a risk of recidivism to allow the possibility of early parole.”
(People v. Wilkes, supra, 46 Cal.App.5th at pp. 1165-1166, citing People v.
Cooper (1996) 43 Cal.App.4th 815, 829; People v. Kilborn (1996) 41
Cal.App.4th 1325, 1332 [“The system of imposing greater punishment on all
persons who commit a felony-grade crime after having committed one or more
serious or violent felonies in the past, is rationally related to the legitimate
public objective of discouraging recidivism”]; People v. Spears (1995) 40
Cal.App.4th 1683, 1687 [“It is clear the Legislature intended to set appellant
and other recidivists with prior ‘strike’ convictions apart from first time
offenders and those with less serious criminal histories; it is equally clear it
did so with a legitimate objective in mind”]; People v. McCain (1995) 36
Cal.App.4th 817, 820 [“The Legislature has seen fit to increase the severity of
punishment for recidivists who have committed serious or violent felonies
and who again commit felony offenses. . . . [W]e cannot say harsher
treatment for such recidivists is irrational or arbitrary such that it denies
them equal protection under the law”].)
Wilkes pointed out that a distinguishing characteristic of Three Strikes
offenders, unlike the defendant sentenced for sex offenses under the One
Strike law in People v. Edwards, supra, 34 Cal.App.5th 183, is that they are
not being sentenced for a first-time offense. (People v. Wilkes, supra, 46
13
Cal.App.5th at p. 1166 [“ ‘The “One Strike” law is an alternative, harsher
sentencing scheme that applies to specified felony sex offenses,’ such that ‘ “a
first-time offense can result in one of two heightened sentences” ’ ”].) “Thus,
the ample authority rejecting equal protection challenges from Three Strikes
offenders did not apply in Edwards,” where the court “took pains to ‘note that
criminal history plays no role in defining a One Strike crime’ and that ‘[t]he
problem in this case is’ the categorical exclusion of ‘an entire class of youthful
offenders convicted of a crime short of homicide . . . , regardless of criminal
history . . . .’ ” (People v. Wilkes, at pp. 1166-1167, quoting Edwards, at p.
199.)
We follow Wilkes to reject Vailes’s equal protection arguments. We
cannot agree that Vailes—who has committed repeat serious felonies (see
§ 1192.7, subd. (c)(19))—is similarly situated to other youth offenders without
strike priors but with sentences over 25 years. Further, we see “a rational
relationship between the disparity of treatment and some legitimate
governmental purpose.” (Heller v. Doe (1993) 509 U.S. 312, 320; see also
People v. Turnage, supra, 55 Cal.4th at p. 74 [equal protection is denied only
where there is no rational relationship between the disparity of treatment
and some legitimate governmental purpose].) “ ‘[W]hen conducting rational
basis review, we must accept any gross generalizations and rough
accommodations that the Legislature seems to have made. [Citation.] ‘A
classification is not arbitrary or irrational simply because there is an
“imperfect fit between means and ends” ’ [citation], or ‘because it may be “to
some extent both underinclusive and overinclusive” ’ [citation].” (Johnson v.
Department of Justice (2015) 60 Cal.4th 871, 887.) As stated, the law will
“survive[] constitutional scrutiny as long as there is ‘ “any reasonably
14
conceivable state of facts that could provide a rational basis for” ’ ” treating
the youthful offenders differently. (People v. Turnage, at p. 74.)
We hold that in terms of equal protection of the law, the exclusion of
Third Strikers from early parole consideration does not run afoul of the
holdings in Graham v. Florida, supra, 560 U.S. 48, Miller v. Alabama, supra,567 U.S. 460 and People v. Caballero (2012) 55 Cal.4th 262, which curtailed
imposition of life without parole sentences for juvenile offenders on Eighth
Amendment grounds.6 The Legislature plainly accounted for these decisions
when it enacted section 3051 with its exclusions. (See People v. Franklin,
supra, 63 Cal.4th at p. 268 [the Legislature enacted sections 3051 and 4801
“to bring juvenile sentencing in conformity with Miller, Graham, and
Caballero”]; see Legis. Counsel’s Dig., Sen Bill No. 260, Stats. 2013, ch. 312,
§ 4 [“This bill would exempt from its provisions inmates who were sentenced
pursuant to the Three Strikes law”].) “At bottom, the Legislature is afforded
considerable latitude in defining and setting the consequences of criminal
offenses.” (Johnson v. Department of Justice, supra, 60 Cal.4th at p. 887.)
We agree the Legislature’s treatment of youths sentenced under the Three
Strikes law like Vailes so as to exclude them from the benefit of early parole
consideration is rationally related to the legitimate governmental objective
of discouraging recidivism. (People v. Kilborn, supra, 41 Cal.App.4th at p.
1332.) We cannot say in view of these legislative concerns that the different
6 Under Graham v. Florida, supra 560 U.S. 48, the Eighth Amendment
forbids a juvenile who commits an offense other than a homicide from being
sentenced to LWOP. (Id. at p. 74; In re Bolton (2019) 40 Cal.App.5th 611,
617.) Miller v. Alabama, supra, 567 U.S. 460 forbids the automatic
imposition of LWOP on juveniles in homicide cases. (Id. at p. 465; In re
Bolton, at p. 617.)
15
treatment here so lacks rationality that it constitutes a denial of equal
protection. (Ibid.)
II. Claim of Cruel and Unusual Punishment
Vailes contends his sentence constitutes cruel and unusual punishment
when viewed in the context of his personal characteristics and severity of his
criminal conduct. He maintains his trial counsel should have asserted such a
claim in addition to moving to strike his prior convictions on Romero grounds,
and the matter should be remanded so the court can refashion his sentence to
allow him to persuade the Board of Parole hearings he should have an
opportunity for release during his lifetime.
A. Forfeiture
The People argue Vailes forfeited any cruel and unusual punishment
challenge by not objecting to his sentence on that ground below. We agree,
particularly because Vailes points to his personal characteristics to support
his claim. (Accord, People v. Russell (2010) 187 Cal.App.4th 981, 993 [claim
forfeited; cruel and unusual punishment claim “should have been raised in
the trial court where the trial judge, having heard all of the evidence, would
be in a position to assess the validity of [defendant’s] claims for [mental]
impairment and make assessments as to their impact, if any, on the
constitutionality of the sentence in this case”].)
Acknowledging this, Vailes nevertheless argues we should address the
merits of his claim because his counsel’s failure to make this argument was
constitutionally deficient representation. We will do so to forestall such a
claim. As discussed below, Vailes’s sentence did not constitute cruel and/or
unusual punishment under either the United States Constitution or
California Constitution, thus, we reject his challenge on its merits, which
resolves his alternative argument that he was denied effective assistance of
16
counsel. Vailes cannot carry his burden to show as a demonstrable reality
that he was prejudiced by his counsel’s purported deficient performance (i.e.,
he has not shown it is reasonably probable he would have obtained a more
favorable sentence had his counsel timely objected on that ground).
(Strickland v. Washington (1984) 466 U.S. 668, 693-694; People v. Henderson
(2020) 46 Cal.App.5th 533, 550-551.)
B. Analysis Under the Federal Constitution
The Eighth Amendment to the federal Constitution provides:
“Excessive bail shall not be required, nor excessive fines imposed, nor cruel
and unusual punishments inflicted.” (U.S. Const., 8th Amend.) It is firmly
established that “ ‘[t]he concept of proportionality is central to the Eighth
Amendment . . . .’ ” (In re Coley (2012) 55 Cal.4th 524, 538.) The United
States Supreme Court holds that the Eighth Amendment “ ‘does not require
strict proportionality between crime and sentence’ but rather ‘forbids only
extreme sentences that are “grossly disproportionate” to the crime.’ ”
(Graham v. Florida, supra, 560 U.S. at pp. 59-60.) To decide whether a
sentence is grossly disproportionate to a crime, a court “begin[s] by
comparing the gravity of the offense and the severity of the sentence.
[Citation.] ‘[I]n the rare case in which [this] threshold comparison . . . leads
to an inference of gross disproportionality’ the court should then compare the
defendant’s sentence with the sentences received by other offenders in the
same jurisdiction and with the sentences imposed for the same crime in other
jurisdictions. [Citation.] If this comparative analysis ‘validate[s] an initial
judgment that [the] sentence is grossly disproportionate,’ the sentence is
cruel and unusual.” (Id. at p. 60.)
In determining the gravity of a defendant’s conduct in the face of an
Eighth Amendment challenge to a sentence imposed under a recidivist
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sentencing statute, we consider not only the triggering offense but also the
nature and extent of the defendant’s criminal history. (In re Coley, 55
Cal.4th at p. 562; accord, People v. Mantanez (2002) 98 Cal.App.4th 354, 366.)
In a noncapital context as here, successful Eighth Amendment challenges are
“ ‘exceedingly rare.’ ” (Ewing v. California (2003) 538 U.S. 11, 21.) In Coley,
the California Supreme Court affirmed the 25-year-to-life sentence of a
person who had suffered many prior serious or violent felony convictions, but
was then being prosecuted for failing to update his sex offender registration
within the time period required by the relevant statute. The court concluded
there was no Eighth Amendment violation in the Three Strikes sentence
imposed on the petitioner: “In light of the particularly heinous nature of
petitioner’s prior criminal activity . . . , petitioners present offense—reflecting
a deliberate decision by petitioner to refuse to comply with an important legal
obligation—may properly be viewed as an indicator of potentially significant
future dangerousness. Taking into account both the circumstances of
petitioner’s triggering offense and petitioner’s very serious criminal history,
we conclude that the 25-year-to-life sentence imposed upon petitioner does
not constitute cruel and unusual punishment in violation of the Eighth
Amendment.” (Coley, at p. 562; see also id. at p. 531; Mantanez, at pp. 358-
367.)
Here, Vailes suffered three prior robbery convictions under the Three
Strikes law (§ 667, subd. (b)-(i)), and while on bail committed three more
robberies with multiple victims, armed with a firearm. Robbery is both a
serious (§ 1192.7, subds. (c)(19), (d)) and violent (§ 667.5, subd. (c)(9)) felony.
His criminal history and record show numerous prior robberies starting as a
juvenile; after being charged with 12 counts of robbery, theft and receiving
stolen property, the juvenile court found true Vailes had committed a robbery
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in September 2014, his first strike prior conviction. Vailes had snatched a
cell phone from the victim. In November 2016, Vailes’s juvenile probation
was terminated after he was charged with multiple crimes (conspiracy, two
robberies, grand theft, burglary, unlawful possession of a firearm without a
serial number and receiving stolen property) committed in May and June
2015. The following month Vailes pleaded guilty to two counts of robbery for
which he received a stipulated six-year prison term. As an adult, he
committed the present violent robberies while on bail for the prior offenses.
Vailes’s past conduct, which includes repeated, forcible robberies with
escalating violence, was precisely the reason for his long sentence. As this
court has recognized: “ ‘The basic fallacy of appellant’s argument lies in his
failure to acknowledge that he “is not subject to a life sentence merely on the
basis of his current offense[s] 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.” ’ ” (People v. Mantanez, supra, 98 Cal.App.4th at p. 366.) Taking
into account the circumstances of the present offenses and Vailes’s serious
criminal history, we conclude the 129-year-to-life sentence does not constitute
cruel and unusual punishment in violation of the Eighth Amendment.
C. Analysis Under the California Constitution
“The California Constitution similarly prohibits cruel or unusual
punishment. (Cal. Const., art. 1, sec. 17.) A punishment is cruel or unusual
only 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.’
(In re Lynch (1972) 8 Cal.3d 410, 424, . . . .) More specifically, imposition of a
life term for even a nonviolent felony committed by a defendant with a
history of serious or violent felony convictions does not violate the California
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Constitution.” (People v. Bernal (2019) 42 Cal.App.5th 1160, 1173, citing
People v. Mantanez, supra, 98 Cal.App.4th at pp. 363-364; see also People v.
Edwards, supra, 34 Cal.App.5th at p. 191.)
A claim under the state Constitution requires that we “ ‘examine the
circumstances of the offense’ and the defendant in determining whether
‘the penalty imposed is “grossly disproportionate to the defendant’s
culpability.” ’ ” (People v. Edwards, supra, 34 Cal.App.5th at p. 191.) Courts
generally (1) examine the nature of the offense and offender, (2) compare the
punishment with the penalty for more serious crimes in the same
jurisdiction, and (3) measure the punishment to the penalty for the same
offense in different jurisdictions. (In re Lynch, supra, 8 Cal.3d at pp. 425-427;
People v. Cuevas (2001) 89 Cal.App.4th 689, 702.) Vailes, however, appears
to concede that the comparative punishment analysis is not required; and he
is correct that this portion of the analysis is tempered when a defendant is
sentenced under the Three Strikes law. (People v. Cline (1998) 60
Cal.App.4th 1327, 1338.) This is so because “it is a defendant’s ‘recidivism in
combination with his current crimes that places him under the [T]hree
[S]trikes law. 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.’ ” (Ibid.) Vailes does
not undertake such an analysis on appeal, so we focus on the first prong
regarding the nature of the offense and the offender. (Accord, Cuevas, supra,
89 Cal.App.4th at p. 702; People v. Ayon (1996) 46 Cal.App.4th 385, 399
[determinations whether a punishment is cruel or unusual may be made on
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first prong alone], disapproved on another point in People v. Deloza (1998) 18
Cal.4th 585, 593, 600, fn. 10.)
Doing so, we evaluate the totality of the circumstances surrounding
Vailes’s current offense, along with his personal characteristics, including his
age and prior criminality. (People v. Lucero (2000) 23 Cal.4th 692, 739;
People v. Cuevas, supra, 89 Cal.App.4th at p. 702.) As Vailes acknowledges,
he was not a juvenile but a 19-year-old adult when he committed the present
offenses. But he points to mitigating circumstances. Vailes reported to
probation officer that his father was imprisoned, and his counsel in a
statement in mitigation stated Vailes experienced abuse and domestic
violence at his home. Pointing to representations in his counsel’s sentencing
brief, Vailes argues he suffers from anxiety and depression as well as
“deficient intellectual functioning” or low IQ, as confirmed in cognitive
testing. He argues he was abusing drugs when his legal troubles emerged.
The record indicates Vailes tested positive for drugs in June 2015 and July
2016.
All of this is countered by the fact Vailes is a repeat offender of serious
crimes; he committed the present serious and violent robberies while armed
with a firearm, and after much planning and sophistication to lure the
victims to locations where they would be vulnerable. Like in People v.
Cuevas, supra, 89 Cal.App.4th 689, we decline to view Vailes’s offenses as
nonviolent and not harmful. (Id. at p. 704.) And like in Cuevas, Vailes must
be held responsible for his repeat criminal behavior even in view of his family
difficulties. (Id. at pp. 704-705 [85-year-to-life sentence for three nonviolent
bank robberies not cruel and unusual even where defendant had a difficult
family history and long term drug addiction; such addiction is not necessarily
mitigating when a defendant with a long-term problem seems unwilling to
21
pursue treatment and despite a difficult upbringing, a defendant is
“responsible under the law for his behavior, which he has not seen fit to
amend”].) Extended prison terms may be imposed under the Three Strikes
law without violating the proscription against cruel and unusual punishment
because such defendants are being punished for recidivism in addition to
their current offenses. (See Ewing v. California, supra, 538 U.S. at pp. 29-30
[upholding under Eighth Amendment proportionality review 25-year-to-life
sentence under Three Strikes law when current offense was theft of golf clubs
while on parole for serious felonies]; People v. Cuevas, supra, 89 Cal.App.4th
at pp. 702-705; People v. Byrd (2001) 89 Cal.App.4th 1373, 1382-1384 [115
years plus 444 years to life for 15 felony counts, including robberies, mayhem
and attempted murder, plus firearm enhancements does not violate article I,
section 17 of the California Constitution]; People v. Ayon, supra, 46
Cal.App.4th at pp. 396-401 [240 years to life for seven counts of robbery and
two counts of attempted robbery with firearm allegations]; People v.
Cartwright (1995) 39 Cal.App.4th 1123, 1130, 1134-1136 [“California statutes
imposing more severe punishment on habitual criminals have long withstood
constitutional challenge”; sentence of 375 years to life plus 53 years for 19
felonies, including assaults and sexual offenses was not cruel and unusual
under California Constitution].)
We conclude that under these circumstances, Vailes’s lengthy prison
term is not disproportionate to his serious and violent crimes and does not
run afoul of the California Constitution. Our conclusion necessarily disposes
of Vailes’s ineffective assistance of counsel claim.
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IV. Modification of Abstract of Judgment
At Vailes’s sentencing hearing, the trial court ordered that Vailes’s 6-
year determinate sentence on count 7 be stayed under section 654. The
abstract of judgment, however, does not reflect the stay. Because the court’s
oral pronouncement controls (see People v. Mitchell (2001) 26 Cal.4th 181,
185), we order the abstract of judgment be modified to reflect the section 654
stay on count 7.
DISPOSITION
The trial court is directed to amend the abstract of judgment to reflect
that Vailes’s sentence on count 7 is stayed under section 654, and forward a
certified copy of the amended abstract of judgment to the Department of
Correction and Rehabilitation. In all other respects the judgment is affirmed.
O’ROURKE, Acting P. J.
WE CONCUR:
AARON, J.
DATO, J.
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