People v. Ward CA2/3

Filed 8/26/20 P. v. Ward 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B295233
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VA144863)
v.
KENNETH WARD,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Roger Ito, Judge. Modified and, as so modified,
affirmed.
Law Offices of Chris R. Redburn and Chris R. Redburn for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Scott A. Taryle and Viet H. Nguyen, Deputy
Attorneys General, for Plaintiff and Respondent.
_________________________
I. INTRODUCTION
Kenneth Ward was convicted of two counts of second-
degree robbery and one count of second-degree burglary of a
marijuana dispensary, as well as gang, firearm, and prior
conviction enhancements. He was sentenced to an aggregate
term of 76 years to life in prison, including six 1-year
enhancements for prior prison terms. On appeal, he challenges
his convictions and sentence on three grounds: (1) there was
insufficient evidence to support his second-degree burglary
conviction, and the trial court erred in instructing the jury on
burglary; (2) his sentence was grossly disproportionate to his
offenses, and thus cruel or unusual punishment under the state
and federal Constitutions; and (3) the prior prison term
enhancements must be stricken under newly enacted Senate Bill
No. 136 (2019–2020 Reg. Sess.) (Senate Bill 136). We agree with
defendant only as to the third ground and accordingly strike the
prior prison term enhancements. In all other respects, we affirm
the judgment.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. Prosecution Evidence
1. The Robberies
In 2017, the 92 Bishop Bloods and Bee Bops criminal street
gangs were allies who engaged in various criminal activities
together, including narcotics sales and robberies.
Defendant, who was 53 years old at the time of trial, was a
member of the 92 Bishop Bloods. Defendant’s cousin, Jerry
Tyson, and Wayne Walker were also 92 Bishop Bloods members.
Izeall Pleasant was a member of the Bee Bops gang.
O.G. Collective was a recreational marijuana dispensary in
Los Angeles County. The dispensary was equipped with 16
2
security cameras, which captured footage from inside the
dispensary. Upon entering the dispensary, customers had to be
buzzed into a security area and provide identification, and a
security guard would enter their names in a sign-in log.
Video surveillance footage from the dispensary and nearby
homes showed that at approximately 10:52 a.m. on May 4, 2017,
a gold van, registered to Walker’s wife, stopped in an alley near
the dispensary. Three men exited and headed toward the
dispensary. At 10:53 a.m., a blue Monte Carlo, which was
registered to defendant’s daughter, pulled into the alley, waited a
few minutes, and drove away.
Meanwhile, based on the video evidence and the
dispensary’s sign-in log, Walker walked past the Monte Carlo,
briefly entered the dispensary, and left the dispensary at
10:56 a.m.
At 11:02 a.m., Pleasant and Tyson entered the dispensary
and were signed in by security guard Xavier Clark. Once inside,
Pleasant and Tyson displayed a firearm, ordered Clark to get on
the floor, and robbed him of his gun, cellular telephone, and iPod.
Store manager Brianna Perez witnessed the armed robbery and
was frightened for her life. She raised her arms because she
realized what was happening. The three men who arrived in the
gold van entered the dispensary at 11:04 a.m. and joined
Pleasant and Tyson. Perez led the three men to the money safe
and opened it. The three men removed $1,300 in cash and
$16,000 in marijuana from the safe. They also robbed Perez of
her iPhone.
While the men were inside the dispensary, the blue Monte
Carlo circled the neighborhood and drove slowly past the alley.
Pleasant, Tyson, and the three men who had arrived in the gold
3
van then left the dispensary and returned to the alley. At
11:07 a.m., the Monte Carlo returned to the alley, with the
passenger seat empty and folded forward. The three unidentified
men entered the Monte Carlo, which then drove away. At
11:09 a.m., the gold van drove up to pick up the remaining two
men, Tyson and Pleasant.
2. The Investigation
Clark and Perez identified Pleasant and Tyson as two of
the robbers in pretrial photographic lineups.
Los Angeles County Sheriff’s Deputy Bryce Chalmers
interviewed defendant on May 30, 2017. Defendant admitted he
was “O.G.”1 from the 92 Bishop Bloods gang. He told Chalmers
that he had been driving near the dispensary with his girlfriend
on the morning of May 4. He was looking for Walker in the
neighborhood because he heard Walker “was involved with
something.” As he was searching for Walker, three
acquaintances—“Little O.J.,” “Man Man,” and “a dude from Bee
Bop with a bowl haircut”—asked him for a ride. After they
entered his car, they disclosed that they had just robbed the
dispensary. Defendant immediately pulled over and ordered
them out of the car, explaining that he would go to prison for life
if he was involved. He described the robbers as “fools” who
should know better than to rob in their own neighborhood.
Defendant repeatedly stated that he did not participate in the
robbery and did not know about it until the men entered his car.
The same day, defendant met the men at a different location and
1
“O.G.” refers to “original gangster” and is a term of respect
in gang parlance. (See People v. Woods (1991) 226 Cal.App.3d
1037, 1045.)
4
admittedly accepted a jar of marijuana, because they had put him
at risk by getting in his car after the robbery.
Chalmers also interviewed Pleasant, who confessed to the
robbery. Pleasant said that an older man, whose name he did not
know, drove him to the dispensary in a blue Monte Carlo. Then
he and Tyson, armed with handguns provided by Walker, entered
the dispensary and robbed the store along with the three
unidentified men.
3. Gang Expert
A gang expert testified that, in his opinion, the crime was
committed for the benefit of, at the direction of, and in
association with a gang.2 He opined that there was “[o]bvious
direction as they looked coordinated,” and the use of two getaway
drivers was evidence the crime was “planned.” Further, the
expert testified that it was typical for members who participated
in a drug crime to be paid with marijuana.
B. Defense Evidence
Defendant’s brother testified that defendant had not been a
gang member for 20 or 30 years, although some of his gang
tattoos were more recent.
Chalmers was re-called and testified for the defense
regarding his interview with defendant. On May 4, defendant
learned that Walker was “doing a job,” against his advice. As
defendant was driving with his girlfriend searching for Walker,
“that’s when [the three men] run out,” and defendant first
learned about the robbery. Defendant told Chalmers, “I’m not a
2
Because the sufficiency of the evidence to prove the gang
enhancement is not challenged on appeal, we do not further
detail it here.
5
part of them youngsters no more,” and expressed he was upset
that the three men jumped into his car.
C. Verdict and Sentencing
Defendant was tried with codefendant Tyson.3 On
November 9, 2017, a jury found defendant and Tyson guilty of
two counts of second-degree robbery (Pen. Code, § 211; counts 1
and 2)4 and one count of second-degree felony burglary (§ 459;
count 3). The jury found the offenses were committed for the
benefit of, at the direction of, and in association with a criminal
street gang (§ 186.22, subd. (b)(1)(C) [10-year enhancement for
violent felony].) The jury also found that Tyson personally used a
handgun (§ 12022.53, subd. (b)) and that a principal personally
used a handgun (§ 12022.53, subd. (b) & (e)(1)).
In a bifurcated proceeding on January 15, 2019, the trial
court found defendant had suffered seven qualifying prior strike
convictions under the Three Strikes Law (§§ 667 [25 years to life
for Third-Strike offense] & 1170.12), four prior serious felony
convictions (§ 667, subd. (a)(1) [five-year enhancement for prior
serious felony]), and served six prior prison terms (§ 667.5,
subd. (b) [one-year enhancement for prior prison term]).5
3
During trial, codefendants Walker and Pleasant pled no
contest to a count of robbery. Walker received a sentence of three
years in prison. Pleasant, a second-strike offender, received a
sentence of 25 years in prison.
4
Further unspecified statutory references are to the Penal
Code.
5
Defendant’s extensive criminal history is described in more
detail in section III.B.2.b., post.
6
Defendant was sentenced to an aggregate term of 76 years
to life in prison. On counts 1 and 2, the court imposed
consecutive terms of 38 years to life for each count, consisting of a
life term for defendant’s prior strike convictions under the Three
Strikes Law, the high term of five years on the robbery conviction
due to defendant’s criminal history, plus a 10-year gang
enhancement, a 20-year enhancement for four prior serious
felony convictions, and three 1-year enhancements for his three
prior prison terms. On count 3, the court imposed a concurrent
term of 25 years to life because the burglary and the robberies
were part of one transaction.
Defendant filed a notice of appeal.
III. LEGAL DISCUSSION
A. Substantial Evidence Supports Defendant’s Second-
Degree Burglary Conviction, and The Trial Court Did Not
Err in Instructing the Jury on Burglary.
Defendant contends his second-degree burglary conviction
was not supported by substantial evidence because his
involvement was limited and occurred only after the burglary
was already completed. For the same reasons, defendant
contends that the trial court erred in instructing the jury on
second-degree burglary. We disagree.
1. Substantial Evidence Supports the Burglary
Conviction.
a. Legal Principles
In reviewing a conviction challenged for insufficient
evidence, we review the whole record “ ‘ “to determine whether it
discloses substantial evidence—that is, evidence which is
reasonable, credible and of solid value—such that a reasonable
trier of fact could find the defendant guilty beyond a reasonable
7
doubt.” ’ ” (People v. Maury (2003) 30 Cal.4th 342, 396.) “ ‘ “On
appeal, we must view the evidence in the light most favorable to
the People and must presume in support of the judgment the
existence of every fact the trier could reasonably deduce from the
evidence.” ’ ” (People v. Smith (2005) 37 Cal.4th 733, 739
(Smith).) The test is not whether the evidence establishes guilt
beyond a reasonable doubt but whether the evidence could
persuade a reasonable jury to find guilt beyond a reasonable
doubt. (People v. Johnson (1980) 26 Cal.3d 557, 576.) “ ‘ “[I]t is
the exclusive province of the . . . jury to determine the credibility
of a witness and the truth or falsity of the facts on which that
determination depends,” ’ ” and if the verdict is supported by
substantial evidence, we accord due deference to the trier of fact.
(Smith, at p. 739.)
Burglary is defined as the entering of a building with the
intent to commit a larceny or a felony. (§ 459.) A defendant
accused of a burglary may be guilty as a direct perpetrator of the
crime or as someone who aids and abets in its commission.
(§§ 30, 31.) “ ‘A person aids and abets the commission of a crime
when he or she, (i) with knowledge of the unlawful purpose of the
perpetrator, (ii) and with the intent or purpose of committing,
facilitating or encouraging commission of the crime, (iii) by act or
advice, aids, promotes, encourages or instigates the commission
of the crime.’ ” (People v. Delgado (2013) 56 Cal.4th 480, 486.)
“ ‘Among the factors which may be considered in making the
determination of aiding and abetting are: presence at the scene of
the crime, companionship, and conduct before and after the
offense.’ ” (People v. Nguyen (2015) 61 Cal.4th 1015, 1054.) “The
‘act’ required for aiding and abetting liability need not be a
substantial factor in the offense.” (People v. Swanson–Birabent
8
(2003) 114 Cal.App.4th 733, 743 (Swanson-Birabent).) Thus,
lookouts, getaway drivers, and persons present to divert
suspicion are principals in the crime. (Id. at pp. 743–744.)
b. Analysis
Reviewing the evidence in the light most favorable to the
judgment, we conclude that substantial evidence supports
defendant’s burglary conviction. Defendant’s primary argument
is that because a burglary is completed upon entering a building
(see § 459), the burglary was completed when Tyson and Pleasant
entered the dispensary at 11:02 a.m., and “the mere presence of
his car in the neighborhood”6 before that time is insufficient
evidence that he aided and abetted the burglary. But defendant’s
representation of the record is inaccurate. The People relied
largely on circumstantial evidence to establish defendant’s
connection to the crime, but nevertheless it was sufficient to
prove his guilt beyond a reasonable doubt. (See People v. Bollaert
(2016) 248 Cal.App.4th 699, 708.) The videos established not
only defendant’s presence at the scene, but his obvious
orchestration with the six other men before and after the
burglary. Defendant’s distinctive car, a blue Monte Carlo, was
near the dispensary before the burglary, and indeed, Pleasant
confessed to the crime and stated he arrived at the dispensary in
6
Defendant contradicts himself by arguing in the same
paragraph that his “car was not proven to be in the neighborhood
until after the crime was completed.” It seems undisputed that
the blue Monte Carlo was in the neighborhood before the
burglary. As captured on video, the blue Monte Carlo pulled into
the alley by the dispensary around 10:53 a.m. During the
investigation, Pleasant also stated that he was driven to the
dispensary in a blue Monte Carlo.
9
a blue Monte Carlo. The Monte Carlo circled the neighborhood
while the men were inside the dispensary, and the same three
men who had gotten out of Walker’s van prior to the burglary
waited in the alley after the burglary, until the Monte Carlo
arrived at this designated pickup location. Despite defendant’s
claim that he was driving with his girlfriend searching for
Walker when he encountered the three men, the video showed
that Walker walked in plain sight of the Monte Carlo on his way
to the dispensary, and the passenger seat of the Monte Carlo was
empty when it arrived to pick up the men. Based on this
evidence of defendant’s presence at the scene at the exact time of
the burglary, and the Monte Carlo’s movements before and after
the burglary, the jury reasonably concluded that defendant
knowingly assisted in the burglary from the beginning, and was
not merely an accidental participant after its completion.
Defendant emphasizes the absence of any substantial
evidence that he planned the burglary along with the six other
men. But based on the evidence we have discussed, a jury could
reasonably conclude that defendant, his codefendants, and the
three unidentified men worked in coordination with each other,
each person fulfilling a different, pre-assigned role: Walker
staked out the dispensary, Tyson and Pleasant took control of the
security guard, the three unidentified men took possession of the
property, and defendant and Walker served as lookouts and
getaway drivers. As a lookout and getaway driver, defendant
was a principal in the burglary. (See Swanson-Birabent, supra,
114 Cal.App.4th at pp. 743–744.) The jury discredited
defendant’s version of the facts that he encountered the three
men by coincidence as he was driving and searching for Walker,
and that he disengaged himself from the burglary as soon as he
10
learned about it—a version that is inconsistent with defendant’s
own admission that he later met the three men to accept part of
the stolen marijuana. We note “ ‘it is the jury, not the appellate
court which must be convinced of the defendant’s guilt beyond a
reasonable doubt.’ ” (People v. Jones (2013) 57 Cal.4th 899.) If
the circumstances reasonably justify the jury’s fact findings, our
opinion that the circumstances might also reasonably be
reconciled with a contrary finding does not warrant a reversal of
the judgment. (Ibid.) Finding the circumstances reasonably
justified the jury’s findings, we conclude that substantial
evidence supports the conviction for second-degree burglary.
2. The Court Did Not Err by Instructing the Jury
on Burglary.
For the same reasons we find there was substantial
evidence to support the burglary verdict, we conclude the trial
court did not err in instructing the jury on second-degree
burglary based on its determination that substantial evidence
supported the instruction.
A jury instruction is warranted if it is supported by
substantial evidence. (People v. Larsen (2012) 205 Cal.App.4th
810, 823; see People v. Edwards (1985) 39 Cal.3d 107, 116 [court’s
refusal to provide requested instruction of charged offense, where
substantial evidence would warrant a conviction, is reversible
error].) The test is whether there is evidence that deserves
consideration by the jury—that is, evidence from which a
reasonable jury could conclude that the specific facts supporting
the instruction existed. (Larsen, at p. 824.)
As we have discussed, substantial evidence supports the
burglary conviction. On that basis, it also supports the burglary
instruction.
11
B. Defendant’s Cruel or Unusual Punishment Claim Is
Forfeited and Also Fails on the Merits.
Defendant argues his sentence of 76 years to life is “grossly
disproportionate” to his offenses and violates the state and
federal Constitutions. The People contend, and we agree, that
defendant has forfeited this claim, which also fails on the merits.
1. Defendant’s Claim Is Forfeited.
Defendant has forfeited the argument that his sentence
was a cruel or unusual punishment because he failed to raise an
objection on this ground below. Defendant argues that errors of
constitutional dimension “affecting substantial rights” are “never
waived.” However, the general rule that a failure to object to
errors in the trial court forfeits consideration of the issue on
appeal “applies to . . . claims based on violations of fundamental
constitutional rights.” (In re Seaton (2004) 34 Cal.4th 193, 197–
198; see § 1259.) The forfeiture doctrine specifically applies in
the context of sentencing (In re Sheena K. (2007) 40 Cal.4th 875,
881), and “[a] defendant’s failure to contemporaneously object
that his sentence constitutes cruel and unusual punishment
forfeits the claim on appellate review.” (People v. Speight (2014)
227 Cal.App.4th 1229, 1247; see, e.g., People v. Baker (2018) 20
Cal.App.5th 711, 720; People v. Russell (2010) 187 Cal.App.4th
981, 992–993; People v. Kelley (1997) 52 Cal.App.4th 568, 583.)
On that basis alone, we can, and do, reject defendant’s claim.
2. Defendant’s Sentence Is Not Cruel or Unusual
Punishment in Light of His Current Offenses and
Criminal History.
Nevertheless, we also consider and reject defendant’s claim
on the merits. Defendant claims that his sentence of 76 years to
life was a cruel or unusual punishment under the state and
12
federal Constitutions. He relies on several overlapping
arguments: (1) the sentence imposed was grossly
disproportionate to the “nonviolent,” “unsophisticated,” and
“minor” nature of his offenses; (2) his criminal history alone does
not justify a life sentence for his current offenses; (3) there is no
reasonable relationship between the punishment imposed for his
prior and subsequent offenses as required by In re Lynch (1972)
8 Cal.3d 410 (Lynch), which “condemns precisely the effect of the
[T]hree [S]trikes law” as applied here; (4) his “exceptionally
harsh punishment” will consume the rest of his life; (5) his
sentence unconstitutionally exceeded that of his codefendants
Walker and Pleasant; and (6) his sentence was disproportionately
severe relative to other more serious offenses under California
law. We address and reject each of these arguments in turn.
a. Legal Principles
Reviewing courts must “ ‘ “grant substantial deference to
the broad authority that legislatures necessarily possess in
determining the types and limits of punishments for crimes,” ’ ”
as well as to the discretion that trial courts possess in sentencing
convicted criminals. (People v. Edwards (2019) 34 Cal.App.5th
183, 190–191, citing Solem v. Helm (1983) 463 U.S. 277, 290
(Solem).) “ ‘Only in the rarest of cases could a court declare that
the length of a sentence mandated by the Legislature is
unconstitutionally excessive. [Citation.]’ ” (People v. Meneses
(2011) 193 Cal.App.4th 1087, 1093 (Meneses).)
Nevertheless, a sentence may violate the proscription
against “cruel or unusual punishment” under the California
Constitution “ ‘if it is so disproportionate to the crime for which it
is imposed that it shocks the conscience and offends fundamental
notions of human dignity.’ ” (People v. Bernal (2019) 42
13
Cal.App.5th 1160, 1172 (Bernal); see Cal. Const., art. I, § 17.)
Similarly, under the federal Constitution, a punishment may
violate the Eighth Amendment’s prohibition against “cruel and
unusual punishment” if it is “ ‘ “grossly out of proportion to the
severity of the crime.” ’ ” (Meneses, supra, 193 Cal.App.4th at
p. 1092; see U.S. Const., 8th Amend.) “ ‘Whether a punishment is
cruel or unusual is a question of law for the appellate court, but
the underlying disputed facts must be viewed in the light most
favorable to the judgment.’ ” (People v. Sullivan (2001) 151
Cal.App.4th 524, 569 (Sullivan).)
“The gross disproportionality principle reserves a
constitutional violation for only the extraordinary case.” (Lockyer
v. Andrade (2003) 538 U.S. 63, 77; see Meneses, supra, 193
Cal.App.4th at p. 1092 [Eighth Amendment contains “ ‘ “narrow
proportionality principle” ’ ” that applies to noncapital cases].) In
Lynch, our Supreme Court articulated three relevant factors in
evaluating the disproportionality of the crime to the offense:
(1) consideration of the nature of the offender and the offense;
(2) comparison of the punishment with the penalty for more
serious crimes in the same jurisdiction; and (3) comparison of the
punishment to the penalty for the same offense in different
jurisdictions. (Lynch, supra, 8 Cal.3d at pp. 425–427.) Federal
courts have used a similar three-pronged approach, considering
as a first factor “the gravity of the offense and the harshness of
the penalty” (Solem, supra, 463 U.S. at p. 292), including the
defendant’s criminal history and the state’s legitimate “public-
safety interest in incapacitating and deterring recidivist felons”
(Ewing v. California (2003) 538 U.S. 11, 28–29 (Ewing). It is only
in the “rare case” in which the first factor results in an inference
of gross disproportionality that a court will consider the last two
14
factors. (People v. Haller (2009) 174 Cal.App.4th 1080, 1088
(Haller); Harmelin v. Michigan (1991) 501 U.S. 957, 1001, 1004–
1005 (conc. opn. of Kennedy, J.).)
b. Analysis
We reject defendant’s contention that, under state and
federal standards defining cruel or unusual punishment,
defendant’s sentence is grossly disproportionate to his offense.
We begin by analyzing the first factor in the Lynch analysis, the
nature of the offender and the offense. (Lynch, supra, 8 Cal.3d at
p. 425.) We consider the offender’s personal characteristics such
as his age, prior criminality, and state of mind, and the
circumstances of the particular crime, such as the defendant’s
motive, the manner in which the crime was committed, the
extent of his involvement, and the consequences of his acts.
(People v. Boyce (2014) 59 Cal.4th 672, 718–719.)
First, we address the gravity of defendant’s offense, which
he alleges was “nonviolent” and “unsophisticated,” and thus
disproportionate to his punishment. Defendant was convicted of
three serious and violent felonies: two armed robberies and a
burglary committed at the direction of, in association with, and
for the benefit of a criminal street gang. (See §§ 667.5, subd. (c),
1192.7, subd. (c).) As we have discussed, substantial evidence
supported the conclusion that defendant, along with six other
men, executed the planned, coordinated robbery of two victims at
gunpoint, and the theft of cash and drugs worth $17,300 from a
commercial building. These offenses cannot be deemed
“nonviolent” or “unsophisticated,” and clearly posed a grave risk
of harm to society. The jury necessarily discredited defendant’s
claim that his role as the getaway driver was “minor” and his
involvement in the crime unknowing. Instead, the jury found
15
him guilty of knowingly assisting in the felonious taking of
property from victims by force or fear and against their will. (See
§ 211; Sullivan, supra, 151 Cal.App.4th at p. 570 [no cruel or
unusual punishment where robberies involved “threatened acts of
violence with a deadly weapon”].)
Next, we consider defendant’s lengthy criminal history,
which he argues is, unjustifiably, the sole basis for his harsh
punishment. However, defendant was a Third-Strike offender,
and his sentence was based on both his criminal history and the
serious and violent nature of his current offenses. (See § 667,
subds. (b)–(i).) A defendant’s criminal history informs our
understanding of the nature of the offender and the offense, and
recidivism “has long been recognized as a legitimate basis for
increased punishment.” (Ewing, supra, 538 U.S. at pp. 25, 28–29
[in weighing gravity of offense, “we must place on the scales not
only his current felony, but also his long history of felony
recidivism”]; In re Coley (2012) 55 Cal.4th 524, 562 [in
determining gravity of offense, “we must consider not only
petitioner’s triggering offense but also the nature and extent of
petitioner’s criminal history”].) “In imposing a three strikes
sentence, the State’s interest is not merely punishing the offense
of conviction,” but also “ ‘in dealing in a harsher manner with
those who by repeated criminal acts have shown that they are
simply incapable of conforming to the norms of society . . . .’ ”
(Ewing, supra, 538 U.S. at p. 29.)
In view of defendant’s numerous prior convictions,
including violent felonies against persons, we see nothing
excessively disproportionate about his sentence. For over 30
years, defendant has been in and out of prison in a revolving-door
string of offenses. In 1987, defendant was convicted of attempted
16
murder and robbery and sentenced to 17 years in prison. In a
separate case that year, he was convicted of two counts of robbery
and sentenced to nine years in prison. In a third case that year,
he was convicted of multiple counts of robbery and false
imprisonment, and sentenced to six years in prison. Sometime
after 2003, he was convicted of drug possession and sentenced to
four years in prison. In 2007, 2008, and 2009, he was convicted of
several counts of drug possession and driving with a suspended
license, and sentenced to probation and prison. In 2012,
defendant was convicted of multiple counts of burglary, petty
theft, and shoplifting, and sentenced to three years in prison. In
2015, he was convicted of drug possession and placed on three
years of probation. In 2017, while on probation, he committed
the robberies and burglary that are the subject of this appeal.
Defendant has demonstrated a refusal to be rehabilitated
despite numerous experiences with probation and incarceration.
A person who repeats an offense, undeterred by prior convictions
and incarceration, poses a serious danger to society that justifies
“imposing an extremely long prison sentence—even a life term—
and even when the [triggering] offenses are nonviolent.” (Bernal,
supra, 42 Cal.App.5th at pp. 1172–1173 [Three Strikes sentence
of 85 years to life for residential burglary and assault with a
deadly weapon not grossly disproportionate, in light of “history of
serious or violent convictions”]; see Rummel v. Estelle (1980) 445
U.S. 263, 265–266, 284–285 [life sentence for fraudulent use of a
credit card, with two prior felony convictions for forging a check
and obtaining money by false pretenses, not cruel and unusual
punishment].) Defendant has failed to lead a law-abiding life for
any extended period during the 30 years that he has been in the
criminal justice system. His record indicates that each time he
17
was released from prison, he committed new crimes that resulted
in new prison terms or probation, with no apparent deterrent
effect. Thus, this is not “the rare case” in which a comparison of
the crime committed and the sentence imposed leads to an
inference of gross disproportionality. (See Haller, supra, 174
Cal.App.4th at p. 1088.)
Defendant relies on Solem v. Helm (1983) 463 U.S. 277 and
In re Rodriguez (1975) 14 Cal.3d 639 (Rodriguez), which found
the offenders’ criminal histories insufficient to justify the harsh
sentences, but those cases are distinguishable. In Solem, the
defendant’s prior offenses consisted of “minor,” nonviolent,
property-related felonies. (Solem, at pp. 279–280, 297.) The
Solem court found the defendant’s sentence of life in prison for
writing a fraudulent $100 check unconstitutional. (Id. at
pp. 296–297.) In contrast, defendant’s current offenses and
criminal history involve violent crimes that far exceed Solem in
gravity. In Rodriguez, the appellate court acknowledged that the
petitioner’s crime of lewd conduct with a child was “by no means
‘trivial,’ ” but explained that its commission involved no violence
or weapon and caused no physical harm to the victim.
(Rodriguez, at pp. 654–655.) Significantly, both cases were
decided before the 1994 enactment of the Three Strikes Law, and
neither case considered whether a sentence under that
sentencing scheme was unconstitutional. (See § 667, subds. (b)–
(i), added by Stats. 1994, ch. 12, §§ 1–2; § 1170.12.) Therefore,
neither Solem nor Rodriguez is instructive.
In addition, defendant challenges the punitive effect of the
Three Strikes Law as applied here, citing Lynch for the
proposition that “there must be a reasonable relationship
between punishment for the first and subsequent offenses.” But
18
in Lynch, the court granted the petitioner relief due to the
disproportionality that resulted from “the enormous single leap
from an ordinary misdemeanor [indecent exposure] to a life-
maximum felony” on the second offense. (Lynch, supra, 8 Cal.3d
at pp. 434–437.) In contrast, defendant suffered multiple prior
felony convictions, including convictions of the same felonies with
which he was charged and convicted in this case. Accordingly,
defendant’s “triggering criminal conduct bore both a rational and
substantial relationship to the antirecidivist purposes of the
Three Strikes law” and may be indicative of “future
dangerousness.” (In re Coley, supra, 55 Cal.4th at pp. 531, 561–
562.) Thus, a more punitive prison term may be imposed under
the Three Strikes Law without running afoul of the prohibition
against cruel or unusual punishment based on defendant’s long-
standing history of repeat offenses, both violent and nonviolent.
(People v. Meeks (2004) 123 Cal.App.4th 695, 700, 706–709 [Three
Strikes sentence of 25 years to life for failure to register as a sex
offender not “grossly disproportionate” in light of four prior strike
convictions and “history of repeated violations” spanning 30
years]; Ewing, supra, 538 U.S. at pp. 18–21 [Three Strikes
sentence of 25 years to life for felony theft of golf clubs, with prior
felony convictions for a robbery and three burglaries, not cruel
and unusual punishment].)
Our conclusion is not altered by defendant’s contention that
his punishment is cruel or unusual because it is the functional
equivalent of a life sentence in prison. (See People v. Ayon (1996)
46 Cal.App.4th 385, 399–401.) That a sentence exceeds a
defendant’s life expectancy does not necessarily render it
constitutionally cruel or unusual. (People v. Byrd (2001) 89
Cal.App.4th 1373, 1383.) “[I]t is immaterial that defendant
19
cannot serve his sentence during his lifetime. In practical effect,
he is in no different position than a defendant who has received a
sentence of life without possibility of parole: he will be in prison
all his life. However, imposition of a sentence of life without
possibility of parole in an appropriate case does not constitute
cruel or unusual punishment under either our state Constitution
[citation] or the federal Constitution.” (Ibid.)
In addition, we find no merit in defendant’s argument that
his sentence is unconstitutional because it is more severe than
that of his codefendants Walker and Pleasant. Defendant’s
criminal history was sizable in comparison to his codefendants,
and both Walker and Pleasant pled no contest to a single count of
robbery. Walker had no prior strike convictions and was
sentenced to three years in prison, while Pleasant, a second-
strike offender, was sentenced to 25 years in prison. Considering
defendant’s status as a Third-Strike offender and his criminal
history spanning three decades, defendant’s sentence of 76 years
to life for his conviction on two counts of robbery and one count of
burglary is not unconstitutionally disproportionate to the
sentences imposed on his codefendants.
Lastly, defendant urges that his sentence is grossly
disproportionate when compared to more serious offenses such as
murder and sex crimes under California law. Having determined
that no inference of gross disproportionality arises from an
examination of the nature of the offender and the offense, we
need not undertake an intrajurisdictional comparison of
punishments, the second factor in the Lynch analysis. (Haller,
supra, 174 Cal.App.4th at p. 1088; see Lynch, supra, 8 Cal.3d at
p. 426.) Regardless, such comparisons are inappropriate in the
context of defendant’s Three Strikes sentence because they ignore
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his recidivism, which is a legitimate basis for his life sentence.
(See People v. Ingram (1995) 40 Cal.App.4th 1397, 1415–1416.)
Given defendant’s continued commission of criminal offenses, his
failure to be rehabilitated, the serious nature of the current
offenses, and his lengthy criminal history involving some of the
same crimes as his current convictions, his sentence does not
shock our conscience or seem grossly disproportionate. We
therefore conclude that defendant’s punishment was not cruel or
unusual under either the state or federal Constitutions.
C. Defendant’s Prior Prison Term Enhancements Must
Be Stricken Under Senate Bill 136.
Defendant contends that following the enactment of Senate
Bill 136, which applies retroactively, the six prior prison term
enhancements imposed on counts 1 and 2 must be stricken
because his prior prison term convictions no longer qualify as
predicate offenses under section 667.5, subdivision (b). The
People agree.
At the time of defendant’s sentencing, former section 667.5,
subdivision (b), required trial courts to impose a one-year
enhancement for each true finding that the defendant had served
a prior prison term, unless the defendant had remained free of
felony convictions and prison or jail custody for five years since
the prior prison term. While this appeal was pending, Senate
Bill 136 became effective on January 1, 2020. Following the
enactment of Senate Bill 136, only prior prison terms for sexually
violent offenses, as defined in Welfare and Institutions Code
section 6600, subdivision (b), are subject to the one-year
enhancement under section 667.5, subdivision (b). (Stats. 2019,
ch. 590, § 1.)
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“By eliminating section 667.5, subdivision (b)
enhancements for all prior prison terms except those for sexually
violent offenses, the Legislature clearly expressed its intent in
Senate Bill No. 136 (2019–2020 Reg. Sess.) to reduce or mitigate
the punishment for prior prison terms for offenses other than
sexually violent offenses.” (People v. Jennings (2019) 42
Cal.App.5th 664, 682 (Jennings).) Therefore, under the rule in In
re Estrada (1965) 63 Cal.2d 740, “Senate Bill No. 136’s
amendment to section 667.5, subdivision (b) applies retroactively
to all cases not yet final as of its January 1, 2020, effective date.”
(Jennings, at p. 682.)
Defendant’s case was not yet final as of January 1, 2020,
and his prior prison terms were not for sexually violent offenses
as defined by Welfare and Institutions Code, section 6600. Thus,
defendant is entitled to the ameliorative benefit of Senate Bill
136’s amendment to section 667.5, subdivision (b). Accordingly,
we shall reverse the six prior prison term enhancements imposed
on counts 1 and 2. (See Jennings, supra, 42 Cal.App.5th at
p. 682.)
Defendant urges us to strike the enhancements, whereas
the People ask that we remand the matter for resentencing so the
trial court can “reconsider all of its sentencing options.” But
because the trial court imposed the maximum possible sentence,
there is no need for the court to again exercise its sentencing
discretion. (See People v. Lopez (2019) 42 Cal.App.5th 337, 342
[no need for court to “again exercise its sentencing discretion”
under Senate Bill 136 because maximum sentence was imposed];
People v. Buycks (2018) 5 Cal.5th 857, 896, fn. 15.) Therefore, we
will strike the six prior prison term enhancements imposed on
counts 1 and 2 without remand for resentencing.
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IV. DISPOSITION
The six 1-year prior prison term enhancements, imposed
pursuant to section 667.5, subdivision (b), on counts 1 and 2, are
stricken. The clerk of the superior court shall prepare an
amended abstract of judgment and forward a certified copy to the
Department of Corrections and Rehabilitation. In all other
respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
EDMON, P. J.
We concur:
EGERTON, J.
DHANIDINA, J.
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