Filed 12/7/21 P. v. Ross CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E075578
v. (Super. Ct. No. FSB1500312)
NICHOLAS ROSS, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Dwight W. Moore,
Judge. Affirmed.
Jean Ballantine, under appointment by the Court of Appeal, for Defendant and
Appellant.
Matthew Rodriguez, Acting Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and
Tami F. Hennick, Deputy Attorneys General, for Plaintiff and Respondent.
1 I.
INTRODUCTION
A jury convicted defendant and appellant Nicholas Ross of carjacking (Pen. Code, 1 § 215 ; count 1) and second degree robbery (§ 211; count 2). The trial court sentenced
him to a term of 20 years plus an indeterminate term of 25 years to life.
On appeal, defendant contends his conviction must be reversed for evidentiary,
instructional, and cumulative error. He also argues his sentence was improperly imposed
and amounts to cruel and unusual punishment. We find no error and affirm.
II.
FACTUAL AND PROCEDURAL BACKGROUND
Around 10:45 p.m., C.F. and his girlfriend, D.S., were sitting in his parked car, a
silver Acura, when a man approached them while pointing a handgun at C.F. The man
opened the driver’s door, told C.F. to “get running,” and grabbed C.F.’s cell phone off of
his lap. C.F. and D.S. got out of the car and ran to a nearby store to call C.F.’s sister,
who picked them up within five minutes. After dropping off D.S., C.F. went home and
called 911.
San Bernardino Police Officer Steven Kaufer responded in five to 10 minutes.
C.F. told Officer Kaufer that his car was a silver Acura. He described the assailant as a
thin Hispanic man, about 5’7”, and wearing a black hat, black t-shirt, gloves, and a
bandana with white markings covering his face.
1 All further statutory references are to the Penal Code.
2 Less than an hour later, San Bernardino Police Officer Christopher Emon saw a
silver Acura parked at an intersection that matched C.F.’s description of his car. The
car’s hood was up, its doors were open, and a man was rummaging through the trunk.
The man was wearing a black t-shirt, dark pants, and a hat.
When the man saw Officer Emon, he began running. Officer Emon chased after
the man and apprehended him. The man had a black bandana with white markings on it
and an empty gun holster on his belt. Officer Emon located a gun nearby, which fit in the
man’s gun holster. Officer Emon also found C.F.’s stolen cell phone in a bag in the front
seat of the Acura.
Shortly after midnight, Officer Kaufer learned that Officer Emon had arrested a
suspect and took C.F. to an in-field identification at the scene of the arrest. Before
arriving, Officer Kaufer told C.F.: “‘We are detaining a person who may or may not
have committed the crime. You are under no obligation to identify anyone. If there are
any similarities between the person detained and person who committed the crime, please
tell me about them. Please advise me whether or not this person is the person who
committed the crime.’”
When they arrived, defendant was standing next to a patrol car. Officer Emon
stopped about 20 feet away and turned his spotlight on defendant. C.F. immediately said,
“‘That is the guy.’” C.F. recognized defendant’s bandana and hat, as well as the gun
Officer Emon found. C.F. also identified his cell phone found in his Acura. C.F. was
“100 percent certain” defendant carjacked him.
3 A jury convicted defendant of one count of carjacking (§ 215; count 1) and one
count of second degree robbery (§ 211; count 2). The jury found true the special
circumstance allegations that defendant personally used a handgun in the commission of
the offenses (§ 12022.53, subd. (b)) and that the offenses are serious and violent felonies
(§§ 1192.7, subd. (c)(8), 667.5, subd. (c)(8)). The trial court found true the allegations
that defendant had suffered two strike priors (§§ 1170.12(a)-(d), 667(b)-(i)), two prior
serious felonies (§ 667(a)(1)), and one prison prior (§ 667.5(b)), which the court
dismissed before sentencing. 2 After denying defendant’s Romero motion, the trial court sentenced defendant to
a five-year term plus 25 years to life on count 1, a 10-year term for the firearm
enhancement, and a 10-year term for defendant’s prior serious felonies. The trial court
stayed the sentence on count 2 under section 654.
III.
DISCUSSION
Defendant raises seven claims of error on appeal: (1) the trial court improperly
admitted evidence of C.F.’s in-field identification; (2) the trial court erroneously
instructed the jury with CALCRIM No. 315; (3) the trial court erroneously instructed the
jury on defendant’s flight from the crime scene; (4) the trial court improperly discouraged
the jury from asking questions or requesting a readback of testimony; (5) the trial court
2 People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
4 erroneously denied his Romero motion; (6) his sentence is cruel and unusual; and (7)
cumulative error requires reversal. We reject defendant’s contentions.
A. In-Field Identification
Before trial, defendant moved in limine to exclude C.F.’s in-field identification of
him. He claimed that it was unduly suggestive and its admission would violate his due
process right to a fair trial. The trial court denied the motion. We find no error.
“[T]o determine whether the admission of identification evidence violates a
defendant’s right to due process of law, we consider (1) whether the identification
procedure was unduly suggestive and unnecessary, and, if so, (2) whether the
identification itself was nevertheless reliable under the totality of the circumstances,
taking into account such factors as the opportunity of the witness to view the suspect at
the time of the offense, the accuracy of his or her prior description of the suspect, the
level of certainty demonstrated at the time of the identification, and the lapse of time
between the offense and the identification.” (People v. Cunningham (2001) 25 Cal.4th
926, 989.)
“For an identification procedure to violate a defendant’s due process rights, ‘the
state must, at the threshold, improperly suggest something to the witness—i.e., it must,
wittingly or unwittingly, initiate an unduly suggestive procedure.’ [Citation.] However,
‘[s]ingle-person show-ups for purposes of in-field identifications are encouraged, because
the element of suggestiveness inherent in the procedure is offset by the reliability of an
identification made while the events are fresh in the witness’s mind, and because the
5 interests of both the accused and law enforcement are best served by an immediate
determination as to whether the correct person has been apprehended. [Citation.] The
law permits the use of in-field identifications arising from single-person show-ups so
long as the procedures used are not so impermissibly suggestive as to give rise to a
substantial likelihood of misidentification.’ [Citations.]” (People v. Garcia (2016) 244
Cal.App.4th 1349, 1359.)
“We review deferentially the trial court’s findings of historical fact, especially
those that turn on credibility determinations, but we independently review the trial court’s
ruling regarding whether, under those facts, a pretrial identification procedure was unduly
suggestive.” (People v. Gonzalez (2006) 38 Cal.4th 932, 943.)
Nothing about C.F.’s in-field identification of defendant was unduly suggestive.
Before asking C.F. to identify defendant, Officer Kaufer told C.F. only that (1) police had
detained someone “who may or may not have committed the crime,” (2) C.F. did not
have to identify anyone, (3) C.F. should identify “any similarities” between the detainee
and the person he believed committed the crime against him; and (4) C.F. should tell
Officer Kaufer whether the detainee was the person he believed committed the crime.
When C.F. saw defendant, he immediately identified defendant by his clothing and
appearance and said he was “100 percent certain” about his identification.
Under these circumstances, the in-field identification procedures were not “‘so
impermissibly suggestive as to give rise to a substantial likelihood of misidentification.’
[Citations.]” (People v. Garcia, supra, 244 Cal.App.4th at p. 1359.) We therefore need
6 not determine whether C.F.’s identification of defendant was reliable, and conclude the
trial court did not err in admitting evidence of it. (People v. Alexander (2010) 49 Cal.4th
846, 902 [“‘Only if the challenged identification procedure is unnecessarily suggestive is
it necessary to determine the reliability of the resulting identification.’”].)
B. CALCRIM No. 315
The trial court instructed the jury with CALCRIM No. 315, which directed the
jury to consider a number of questions to evaluate an eye witness’s testimony, including
“[h]ow certain was the witness when he or she made an identification?” Defendant
contends this particular question violated his due process rights because it impermissibly
allows juries to equate an eye witness’s certainty with the witness’s accuracy.
The People assert defendant forfeited the argument by failing to object to
CALCRIM No. 315 below. We agree. (See People v. Sanchez (2016) 63 Cal.4th 411,
461-462 [defendant forfeited argument that instruction improperly directed jurors to
consider eye witness’s certainty by failing to object to it in the trial court]; accord, People
v. Rodriguez (2019) 40 Cal.App.5th 194, 199-200 [“Rodriguez argues CALCRIM No.
315 violates his Fourteenth Amendment due process rights because it tells the jury to
consider eyewitness certainty. Rodriguez’s counsel did not object at trial. This is
forfeiture.”].)
In any event, our Supreme Court recently held that instructing the jury with
CALCRIM No. 315 does not violate a defendant’s due process rights. (See People v.
7 Lemcke (2021) 11 Cal.5th 664.) We therefore reject defendant’s argument that the trial
court prejudicially erred by giving CALCRIM No. 315.
C. Flight Instruction
The trial court instructed the jury with CALCRIM No. 372, which provides in
relevant part: “If the defendant fled or tried to flee immediately after the crime was
committed, that conduct may show that he or she was aware of his or her guilt. If you
conclude that the defendant fled or tried to flee, it is up to you to decide the meaning and
importance of that conduct. However, evidence that the defendant fled or tried to flee
cannot prove guilt by itself.” Defendant contends the trial court erred in giving the flight
instruction. We disagree.
The flight instruction was proper. “‘In general, a flight instruction “is proper
where the evidence shows that the defendant departed the crime scene under
circumstances suggesting that his movement was motivated by a consciousness of guilt.”
[Citations.]’” (People v. Leon (2015) 61 Cal.4th 569, 607 (Leon).)
For instance, in Leon, the California Supreme Court held the trial court properly
instructed the jury on flight when the defendant was charged with evading a police officer
with willful disregard for safety and robbery murder. (Leon, supra, 61 Cal.4th at p. 607.)
The court reasoned that the defendant’s flight was relevant to his consciousness of guilt
for both offenses. (Ibid.)
Leon controls here. Defendant’s flight from Officer Emon was relevant to his
consciousness of guilt for the charges. The trial court therefore did not err in giving
8 CALCRIM No. 372. (See Leon, supra, 61 Cal.4th at p. 607; see also People v. Henry
(1937) 23 Cal.App.2d 155, 165 [jury instruction on flight proper because defendant’s
flight was relevant to defendant’s consciousness of guilt].)
Finally, we disagree with defendant that CALCRIM No. 372 is “improperly
argumentative,” conflicts with section 1127c, lessened the prosecution’s burden,
undermined the presumption of defendant’s innocence, or allowed the jury to find him
guilty based on his flight from the crime scene. Courts have consistently rejected these
arguments and held that CALCRIM No. 372 is properly given to the jury when, as here,
there is substantial evidence that the defendant fled the scene of a crime. (See e.g.,
People v. Paysinger (2009) 174 Cal.App.4th 26, 30 [rejecting arguments that CALCRIM
No. 372 undermines the presumption of innocence or lowers the prosecution’s burden];
People v. Hernandez Rios (2007) 151 Cal.App.4th 1154, 1158-1159 [rejecting argument
that CALCRIM No. 372 allows jury to “presume[] the existence of” the defendant’s guilt
from his flight]; People v. Price (2017) 8 Cal.App.5th 409, 454 [rejecting arguments that
CALCRIM No. 372 is “impermissibly argumentative” and conflicts with section 1127c].)
We agree with these decisions and follow them here.
As a result, we conclude the trial court did not err by instructing the jury with CALCRIM
No. 372.
D. Jury Admonition
Before the jurors began deliberating, the trial court instructed the jury with
CALCRIM No. 202: “‘[I]f there is a disagreement about the testimony at trial, you may
9 ask that the court reporter’s record be read to you. It is the record that must guide your
deliberations, not your notes. You must accept the court reporter’s record as accurate.
Please do not remove your notes from the jury room. At the end of the trial, your notes
will be collected and destroyed.’”
The trial court then stopped reading the instructions and told the jury: “Now, if
you ask to have some testimony re-read or if you send out any kind of question to me,
you will get a response. But it may take some time. If it is a request for a readback, we
may be doing something else. And my reporter may be busy. She may not be able to do
anything until we finish what we are doing. Then she will have to go through her notes,
find the appropriate notes, sort through it, and then come in and read it to you. That takes
some time. [¶] If you ask any question about the instructions or anything else about the
case, I have to round up the attorneys, herd them into the courtroom, talk to them about it
before I can respond to you. And that can take time. They are elusive people. And so if
you ask for anything, you will get a response to it. But it may take some time. So please
continue your deliberations to whatever extent you can while you are waiting for a
response from me.”
Defendant contends this “departure from the standard jury instructions was error.”
He claims it violated section 1138 and his federal constitutional rights because it coerced
the jury not to ask questions or request readbacks of testimony, and the jury neither asked
a question nor requested a readback. We disagree.
10 Under section 1138, “the jury has a right to rehear testimony and instructions on
request during its deliberations.” (People v. Frye (1998) 18 Cal.4th 894, 1007.) The trial
court did not violate section 1138 by explaining to the jurors that it “may take some time”
to answer their questions or to give them a readback of testimony. In line with section
1138, the trial court explicitly told the jury, “if you ask for anything, you will get a
response to it.” (See People v. Hillhouse (2002) 27 Cal.4th 469, 506 [“[T]he court did
not violate section 1138. It did not refuse to provide any rereading of testimony; indeed,
the jury did not request any.”]; Id. at p. 506 [“Merely informing the jury of the time it
may take for rehearing testimony is not impermissible jury coercion.”] Ibid.)
The trial court also did not violate defendant’s federal constitutional rights by
explaining to the jurors why they may not get an immediate response to a question or
readback request. When viewed in context, the trial court simply told the jury that it
“may take some time” for the court to answer a question or provide a readback because of
the logistics involved. The trial court did not suggest to the jury that it should not ask
questions or request readbacks, but instead told the jury that “if you ask for anything, you
will get a response to it.” The trial court’s instruction was proper. (See People v.
Hillhouse, supra, 27 Cal.4th at pp. 506-507 [“Merely informing the jury of the time it
may take for rehearing testimony is not impermissible jury coercion. [Citation.] We see
no violation of the . . . defendant’s right to have the jury provided a rereading of
testimony on request.”].)
11 E. Romero Motion
Defendant contends the trial court erred by denying his Romero motion to strike
his two prior strike convictions. We disagree.
1. Legal Principles and Standard of Review
“As the Supreme Court explained in Romero, section 1385 permits a trial court to
strike an allegation of a prior felony conviction in cases brought under the ‘“Three
Strikes’” law, in the interests of justice.” (People v. Thimmes (2006) 138 Cal.App.4th
1207, 1213, citing Romero, supra, 13 Cal.4th at pp. 529-530.) “[I]n ruling whether to
strike or vacate a prior serious and/or violent felony conviction allegation . . . the court in
question must consider 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.)
The purpose of the Three Strikes law is “‘to ensure longer prison sentences and
greater punishment for those who commit a felony and have been previously convicted of
one or more serious or violent felony offenses.’” (§ 667, subd. (b).) The Three Strikes
law “establishes a sentencing requirement to be applied in every case where the
defendant has at least one qualifying strike,” unless the trial court determines the
defendant falls outside the scheme’s spirit. (People v. Strong (2001) 87 Cal.App.4th 328,
12 337-338.) “[E]xtraordinary must the circumstance be by which a career criminal can be
deemed to fall outside the spirit of the very scheme within which he squarely falls once
he commits a strike as part of a long and continuous criminal record, the continuation of
which the law was meant to attack.” (Id. at p. 338.) Thus, the Three Strikes law “not
only establishes a sentencing norm, it carefully circumscribes the trial court’s power to
depart from this norm.” (People v. Carmony (2004) 33 Cal.4th 367, 378.)
“The trial court is not required to state reasons for declining to exercise its
discretion under section 1385.” (People v. Gillispie (1997) 60 Cal.App.4th 429, 433.)
The trial court “is presumed to have considered all of the relevant factors in the absence
of an affirmative record to the contrary.” (People v. Myers (1999) 69 Cal.App.4th 305,
310.)
A trial court’s decision not to strike a prior conviction allegation is reviewed under
the abuse of discretion standard. (People v. Carmony, supra, 33 Cal.4th at p. 371.) “This
standard is deferential . . . it asks in substance whether the ruling in question ‘falls outside
the bounds of reason’ under the applicable law and the relevant facts.” (People v.
Williams, supra, 17 Cal.4th at p. 162.) “Under that standard an appellant who seeks
reversal must demonstrate that the trial court’s decision was irrational or arbitrary. It is
not enough to show that reasonable people might disagree about whether to strike one or
more of his prior convictions. Where the record demonstrates that the trial court
balanced the relevant facts and reached an impartial decision in conformity with the spirit
13 of the law, we shall affirm the trial court’s ruling, even if we might have ruled differently
in the first instance.” (People v. Myers, supra, 69 Cal.App.4th at pp. 309-310.)
2. Analysis
Defendant contends the trial court improperly “refused to consider” the effects of
the trauma defendant suffered from the deaths of his siblings when he was a child. He
also argues the trial court erroneously based its decision on defendant’s current offenses
and “what could have happened” instead of what happened. In support, he points to the
trial court’s statement, “[i]f someone had been killed in the course of the carjacking, it
could have been a life without the possibility of parole or even a death penalty case. [¶]
So saying it could have been worse, well, just about anything could have been worse. I
suppose Hitler could have been responsible for more murders than he was. It is hardly a
factor in mitigation that he only killed 6,000,000 and not 7. I am not comparing your
client to Hitler.” Finally, defendant claims the trial court inaccurately described
defendant’s criminal record as reflecting a “lifetime of crime.”
As for defendant’s first point, the trial court specifically considered the effect of
defendant’s siblings’ deaths on him when denying his Romero motion. The court
explained that it read defendant’s psychosocial report, as well as a journal article
defendant submitted on the traumatic effect a sibling’s death can have on a child. The
trial court still found that defendant’s siblings’ deaths were not mitigating factors that
justified striking his strike priors.
14 Defendant takes the trial court’s Hitler comment out of context to argue that the
court inappropriately focused on what could have happened during the commission of
defendant’s current offenses. Defense counsel argued that defendant’s Romero motion
should be granted in part because “[n]obody was injured” and “[n]obody was killed.”
The trial court rejected the argument. The court did not, as defendant contends, focus on
“what could have happened.” Instead, the court found that the fact defendant hurt no one
while committing his current offenses and did not commit more serious crimes was not a
valid basis to strike his strike priors.
Consistent with Romero, the trial court considered defendant’s entire criminal
history in deciding whether to strike his prior strike convictions. Defendant’s criminal
history is extensive. He has multiple convictions from between 2004 and 2010, which
include assault with a deadly weapon, attempted burglary, and a series of drug offenses.
Although defendant may not consider his criminal record to constitute “a lifetime of
crime,” the trial court permissibly found that defendant does not fall outside the spirit of
the Three Strikes law. The trial court therefore did not abuse its discretion in denying
defendant’s Romero motion.
F. Cruel and Unusual Punishment
Defendant argues his sentence of 45 years to life is cruel and unusual punishment
in violation of the Eighth Amendment and article I, section 17 of the California
15 3 constitution. We disagree.
“A punishment violates the Eighth Amendment if it involves the ‘unnecessary and
wanton infliction of pain’ or if it is ‘grossly out of proportion to the severity of the
crime.’ [Citation.] A punishment may violate article I, section 17 of the California
Constitution if ‘it is so disproportionate to the crime for which it is inflicted that it shocks
the conscience and offends fundamental notions of human dignity.’” (People v. Retanan
(2007) 154 Cal.App.4th 1219, 1230-1231.)
“Outside the context of capital punishment, successful challenges to the
proportionality of particular sentences have been exceedingly rare.” (Rummel v. Estelle
(1980) 445 U.S. 263, 272.) In Rummel v. Estelle, the United States Supreme Court held a
life sentence for credit card fraud of $80, passing a $28.36 forged check, and obtaining
$120.75 was not grossly disproportionate in violation of the Eighth Amendment.
Similarly, in Lockyer v. Andrade (2003) 538 U.S. 63, the Court upheld two consecutive
25-years-to-life sentences imposed for two thefts of items worth less than $150. Given
that the United States Supreme Court upheld these sentences for minor, non-violent
property crimes, it follows that defendant’s sentence for carjacking and second degree
robbery does not violate the federal constitution.
3 We agree with the People that defendant forfeited the argument by failing to object to his sentence in the trial court, but we exercise our discretion to address the issue on the merits. (People v. Baker (2018) 20 Cal.App.5th 711, 720.)
16 Like the federal Constitution, the California Constitution also prohibits the
infliction of cruel or unusual punishment. (Cal. Const., art. I, § 17.) A punishment
violates the California constitutional prohibition on cruel or unusual punishment “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, superseded by statute on other
grounds as stated in People v. Caddick (1984) 160 Cal.App.3d 46, 51-52; People v.
Dillon (1983) 34 Cal.3d 441, 478.) In reviewing an indeterminate sentence such as
defendant’s, we evaluate whether the maximum term passes constitutional scrutiny
irrespective of whether and when defendant may be eligible for parole. (Baker, supra, 20
Cal.App.5th at p. 724; In re Lynch, supra, at pp. 416-417.)
To determine whether a sentence is unconstitutionally disproportionate, we apply
a three-pronged approach. (People v. Romero (2002) 99 Cal.App.4th, 1418, 1431; In re
Lynch, supra, 8 Cal.3d at pp. 425-429.) We (1) examine “‘the nature of the offense
and/or the offender, with particular regard to the degree of danger both present to
society,’” (2) “compare the challenged punishment with punishments prescribed for more
serious crimes in our jurisdiction,” and (3) “compare the challenged punishment to
punishments for the same offense in other jurisdictions.” (People v. Johnson (2010) 183
Cal.App.4th 253, 296-297.) “Findings of disproportionality are exceedingly rare and
occur only in extraordinary cases.” (People v. Wilson (2020)56 Cal.App.5th 128, 167.)
“Only in the rarest of cases could a court declare that the length of a sentence mandated
17 by the Legislature is unconstitutionally excessive.” (People v. Martinez (1999) 76
Cal.App.4th 489, 494.)
When evaluating the nature of the offense at the first step, we “consider not only
the offense in the abstract—i.e., as defined by the Legislature—but also ‘the facts of the
crime in question’ [citation]—i.e., the totality of the circumstances surrounding the
commission of the offense in the case at bar, including such factors as its motive, the way
it was committed, the extent of the defendant’s involvement, and the consequences of his
acts.” (People v. Dillon, supra, 34 Cal.3d at p. 479.) We also consider “the particular
person before the court, and ask[] whether the punishment is grossly disproportionate to
the defendant’s individual culpability as shown by such factors as his age, prior
criminality, personal characteristics, and state of mind.” (Ibid.)
Defendant robbed C.F. and D.S. at gunpoint, which “presented a significant degree
of danger to society” and suggests his sentence is not disproportionate. (People v. Em
(2009) 171 Cal.App.4th 964, 972.) His current offenses, which he committed when he
was 37 years old, were the most recent of many he has committed, including assault with
a deadly weapon and attempted burglary. His recidivism and age also show that his
sentence is not cruel or unusual. (People v. Martinez (1999) 71 Cal.App.4th 1502, 1512
[“If increased penalties do not deter the repeat offender, then society is warranted in
segregating that person for an extended period of time.”]; Dillon, supra, 34 Cal.3d at p.
479.)
18 Defendant argues his sentence is cruel and unusual because it is greater than
sentences imposed for other, more serious crimes. But “‘[p]unishment is not cruel or
unusual merely because the Legislature may have chosen to permit a lesser punishment
for another crime. Leniency as to one charge does not transform a reasonable
punishment into one that is cruel or unusual.’” (Baker, supra, 20 Cal.App.5th at p. 727.)
Moreover, defendant’s sentence was imposed in part because of his criminal history,
which includes two strikes. For this reason, the second prong of the disproportionality
analysis “is inapposite to three strikes sentencing because it is a defendant’s ‘recidivism
in combination with current crimes that places him under the three strikes law.’” (People
v. Cline (1998) 60 Cal.App.4th 1327, 1338; see also People v. Mantanez (2002) 98
Cal.App.4th 354, 356 [affirming sentence of 25 years to life for repeat offender whose
current offenses were for drug possession and receiving stolen property].) Defendant’s
sentence is not more extreme than the many third-strike sentences for nonviolent crimes
California courts have upheld. (See e.g., In re Coley (2012) 55 Cal.4th 524, 530 [25 years
to life for failure to update sex offender registration was not cruel and unusual]; People v.
Romero, supra, 99 Cal.App.4th at p. 1433 [25 years to life for felony petty theft of
stealing magazine]; People v. Barrera (1999) 70 Cal.App.4th 541, 555 [25 years to life
for check forgery].)
Defendant contends his sentence is unconstitutional because it is disproportionate
to the punishment he would have received in other jurisdictions for the same offenses.
Although California’s Three Strikes scheme may lead to severe sentences, that alone does
19 not show that defendant’s sentence amounts to cruel or unusual punishment. California
need not “march in lockstep with other states in fashioning a penal code.” (People v.
Martinez, supra, 71 Cal.App.4th at p. 1516.) In any event, defendant’s sentence is no
more extreme than he would have received in the many other jurisdictions that impose
life imprisonment on habitual criminals through recidivist statutes. (See People v. Cline,
supra, 60 Cal.App.4th at p. 1338 [noting nationwide pattern of statutes mandating more
severe punishment for recidivist offenders].) “‘A comparison of California’s punishment
for recidivists with punishment for recidivists in other states shows that many of the
statutory schemes provide for life imprisonment for repeat offenders, and several states
provide for life imprisonment without possibility of parole.’ [Citation.]” (People v.
Sullivan (2007) 151 Cal.App.4th 524, 573.)
At bottom, defendant has not shown that his sentence is one of the “exceedingly
rare” sentences outside the noncapital context that is cruel or unusual. (In re Coley,
supra, 55 Cal.4th at p. 562.) We therefore conclude defendant’s sentence is not cruel or
unusual.
G. Cumulative Error
Defendant maintains that, taken together, the trial court’s errors constitute
cumulative error that warrants reversal. We disagree. “A predicate to a claim of
cumulative error is a finding of error.” (People v. Sedillo (2015) 235 Cal.App.4th 1037,
1068.) Because we do not find any error, we also do not find any cumulative error that
warrants reversal. (Ibid.; see also People v. Duff (2014) 58 Cal.4th 527, 562 [“In the
20 absence of error, there is nothing to cumulate.”].)
IV.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON J.
We concur:
MILLER Acting P. J.
RAPHAEL J.