People v. Shaw CA4/2

Opinion

Filed 7/15/21 P. v. Shaw CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E075960

v. (Super.Ct.No. FVI17001556)

JOHNNY SHAW, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. Debra Harris,

Judge. Affirmed with directions.

Kevin D. Sheehy, under appointment by the Court of Appeal, for Defendant and

Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Robin Urbanski and Genevieve

Herbert, Deputy Attorneys General, for Plaintiff and Respondent.

In a previous appeal, we affirmed defendant Johnny Shaw’s conviction on an

attempted robbery charge, but remanded for resentencing in light of recently enacted

1 changes in the law relating to sentencing enhancements. (People v. Butler et al. (Mar. 10,

2020, E071471) [nonpub. opn.].) On remand, the trial court struck a number of

previously imposed enhancements and sentenced Shaw to an indeterminate term of 25

years to life. In this appeal, Shaw challenges his new sentence in several respects,

arguing that (1) the trial court abused its discretion by denying his renewed Romero 1 motion ; (2) the sentence amounts to cruel and unusual punishment; and (3) the minute

order of the resentencing hearing and the abstract of judgment should be corrected to

accurately reflect the judgment.

The People concede, and we agree, that the resentencing minute order and abstract

of judgment should be corrected. We reject Shaw’s other arguments and affirm the

judgment.

I. BACKGROUND

Because the facts of this case were described in detail in our previous opinion, we

do not repeat them here, except to the extent necessary to address the issues now before

us. (See People v. Butler et al., supra, E071471.)

Shaw (together with his codefendant Kevin Lemont Butler, who is not a party to

this appeal) was accused of attempting to rob a gas station convenience store. The jury

rejected Shaw’s arguments that he had only been joking and found him guilty of one 2 count of attempted robbery (Pen. Code , §§ 664, 211). In our previous opinion, we found

1 People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). 2 Undesignated statutory references are to the Penal Code.

2 that substantial evidence supported the jury’s conclusion that Shaw had the specific intent

to rob the store’s cashier, and that he took a direct, ineffectual act toward committing the

robbery. (See People v. Butler et al., supra, E071471.)

In bifurcated proceedings, the trial court found that Shaw had suffered four prior

serious felony convictions (§ 667, subd. (a)(1)), four strike priors (§§ 1170.12, subds. (a)-

(d), 667, subds. (b)-(i)), and three prison priors (§ 667.5, subd. (b)). It sentenced Shaw to

a total of 45 years to life, consisting of an indeterminate term of 25 years to life for the

attempted robbery conviction, plus four consecutive 5-year terms for his serious felony

priors. (See People v. Butler et al., supra, E071471.)

On appeal, we affirmed Shaw’s conviction, but remanded to the trial court with

directions to resentence Shaw. As relevant here, remand was required to allow the trial

court to exercise its new discretion under sections 667, subdivision (a)(1) and 1385, as

amended by Senate Bill No. 1393 (2017-2018 Reg. Sess.) to strike or dismiss a prior

serious felony conviction for sentencing purposes. (See People v. Butler et al., supra,

E071471.) We also ordered that Shaw’s prison prior enhancements, previously imposed

and stayed, be stricken pursuant to section 667.5, subdivision (b), as amended by Senate

Bill No. 136 (2019-2020 Reg. Sess.) (Senate Bill 136) (See People v. Butler et al., supra,

E071471.)

On remand, the trial court agreed to strike Shaw’s serious felony priors, but denied

his renewed Romero motion and resentenced him to a term of 25 years to life.

3 II. DISCUSSION

A. Romero Motion

Shaw argues that the trial court abused its discretion by denying his renewed

Romero motion and imposing sentence pursuant to the three strikes law. In our previous

opinion, we found no abuse of discretion in the trial court’s decision to deny Shaw’s first

Romero motion. (See People v. Butler et al., supra, E071471.) Our previous analysis

continues to apply with equal force: “Shaw’s adult felony convictions included two

robbery convictions (§ 211), as well as evading a peace officer (§ 2800.2), assaulting a

peace officer or firefighter with a deadly weapon (§ 245, subd. (c)), and making terrorist

threats (§ 422) . . . . Although three of Shaw’s strike offenses were relatively remote in

time, the only substantial gap in his adult criminal record was attributable to his serving a

21-year prison sentence for one of his robbery convictions. The trial court expressly

considered the various mitigating factors raised by . . . Shaw, including [his] arguments

regarding the nature of the current offense and [his] role[] in it, and evidence of [his]

background[]. We find nothing arbitrary or irrational in the trial court’s decision not to

give those mitigating factors dispositive weight.” (People v. Butler et al., supra,

B. Cruel and Unusual Punishment

Shaw contends that his sentence of 25 years to life constitutes cruel and unusual

punishment in violation of his federal and state constitutional rights, particularly given

his age (59 at the time of resentencing), which means it is statistically likely that he will

4 3 not live long enough to become eligible for parole. Relying primarily on Solem v. Helm

(1983) 463 U.S. 277 (Helm), he contends that his sentence is “grossly disproportionate”

and “[does] not fit the crime or the person.” We disagree, finding the sentence comports 4 with constitutional requirements.

Both the United States Constitution and the California Constitution prohibit the

infliction of cruel and unusual punishments. (U.S. Const., 8th Amend.; Cal. Const., art. I,

§ 17.) Under both the federal and the state analyses, the starting point is a comparison

between the gravity of the offense and the severity of the sentence. (Graham v. Florida

(2010) 560 U.S. 48, 59 (Graham); In re Lynch (1972) 8 Cal.3d 410, 425.) In making this

comparison, however, we must “‘“grant substantial deference to the broad authority that

legislatures necessarily possess in determining the types and limits of punishments for

crimes.”’” (People v. Edwards (2019) 34 Cal.App.5th 183, 190-191.) Moreover, it is not

only the specifics of the current offense that are relevant: “Recidivism has long been

recognized as a legitimate basis for increased punishment.” (Ewing v. California (2003)

538 U.S. 11, 25.) Thus, “[i]n weighing the gravity of [a defendant’s] offense, we must

3 We reserved for consideration with this appeal Shaw’s request that we take judicial notice of a document entitled “United States Life Tables, 2017,” showing average life expectancies by age, sex, and race. The request is granted as unopposed. (Cal. Rules of Court, rule 8.54(c).) 4 In the interest of judicial economy, we consider the merits of Shaw’s arguments regarding cruel and unusual punishment, and decline to decide the People’s argument that he forfeited the issue by failing to raise it at his resentencing. (See People v. Williams (2000) 78 Cal.App.4th 1118, 1126 [addressing on appeal issue that would otherwise be forfeited to “forestall a petition for writ of habeas corpus based on a claim of ineffectual counsel”].)

5 place on the scales not only his current felony, but also his long history of felony

recidivism.” (Id. at p. 29; see also In re Bolton (2019) 40 Cal.App.5th 611, 622 [“[T]hree

strikes sentences for less serious felonies have been routinely upheld against Eighth

Amendment attack”].)

We hold that Shaw’s sentence does not constitute cruel and unusual punishment.

No doubt, as Shaw emphasizes, his current offense was relatively non-violent, so far as

robberies go. Nevertheless, by definition, a robbery includes violence or the threat of

violence, and the jury rejected his trial arguments that his actions were no more than a

poorly-considered joke. As noted, moreover, his criminal record includes a long history

of serious felonies, including five strike offenses (three of which are robberies). We find

Shaw’s sentence to be well justified “by the State’s public-safety interest in

incapacitating and deterring recidivist felons, and amply supported by his own long,

serious criminal record.” (Ewing v. California, supra, 538 U.S. at pp. 29-30.)

Shaw’s comparison of this case to the facts of Helm, supra, 463 U.S. at p. 277, is

unpersuasive. In Helm, the defendant’s prior offenses were all non-violent, and none

were crimes against a person. (Id. at p. 280.) His current offense, triggering a sentence

of life without parole under a recidivist statute, was also relatively minor and non-violent:

“uttering a ‘no account’ check for $100.” (Id. at p. 281.) On those facts, the Supreme

Court held that the defendant had “received the penultimate sentence for relatively minor

criminal conduct,” and concluded that the sentence was prohibited by the Eighth

Amendment. (Id. at p. 303.) In contrast, Shaw’s long history of violent criminal

6 conduct, including his current offense, is not reasonably characterized as relatively minor.

There is therefore nothing grossly disproportionate about his sentence.

Shaw also quotes Helm for the proposition that he “has been treated more harshly

than other criminals in the State who have committed more serious crimes.” (See Helm,

supra, 463 U.S. at p. 303.) He has not attempted, however, to show how his punishment

compares to sentences received by other, similarly situated offenders (that is, with

similarly serious criminal histories) in California or other jurisdictions. (See Graham,

supra, 560 U.S. at p.60 [describing “comparative analysis” used to “‘validate[] an initial

judgment that [the] sentence is grossly disproportionate]; In re Lynch, supra, 8 Cal.3d at

pp. 426-427 [describing similar comparative analysis under state law].)

We conclude that under either California or federal law, Shaw has failed to

demonstrate that his sentence is unconstitutionally cruel and unusual.

C. Errors in Trial Court’s Minutes and Abstract of Judgment

At resentencing, the trial court complied with our direction that it strike Shaw’s

prison prior enhancements, previously imposed but stayed, in light of Senate Bill 136.

This aspect of the judgment, however, was not reflected in the trial court’s minute order

of Shaw’s resentencing hearing. Shaw’s amended abstract of judgment continues to

show these enhancements as imposed but stayed. The People concede, and we agree, that

these clerical errors should be corrected. (See People v. Mitchell (2001) 26 Cal.4th 181,

185 [“An abstract of judgment is not the judgment of conviction; it does not control if

different from the trial court’s oral judgment”].)

7 III. DISPOSITION

The judgment is affirmed. We remand to the trial court with directions to correct

the resentencing minute order and abstract of judgment to reflect that the enhancements

previously imposed against Shaw under former section 667.5, subdivision (b) have been

stricken, and to forward a certified copy of the corrected abstract of judgment to the

Department of Corrections and Rehabilitation.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAPHAEL J.

We concur:

CODRINGTON Acting P. J.

SLOUGH J.