Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. SA065601 Elden S. Fox, Judge.
Catherine Campbell, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Daniel C. Chang and Rama R. Maline, Deputy Attorneys General, for Plaintiff and Respondent.
CROSKEY, J.
Ivett Ester Ayestas appeals from the judgment entered following a jury trial which resulted in her conviction of four counts of first degree burglary (Pen. Code, § 459), one count of attempted first degree burglary (§§ 664, 459) and possession of burglar’s tools (§ 466), and her admissions that she was on bail or her own recognizance when she committed the crimes (§ 12022.1) and had previously been convicted of a serious or violent felony, carjacking (§ 215, subd. (a)), within the meaning of section 667, subdivision (a) and the Three Strikes law (§§ 667, subds. (b)-(i) & 1170.12, subds. (a)-(d)). The trial court sentenced Ayestas to 21 years in prison. We affirm the judgment.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts.
a. Testimony of John Romero
Twenty-year-old John Romero was given immunity for his testimony in this matter. He understood that nothing he said while testifying could be used against him.
Romero is a student at Cal State Dominguez Hills and owns a red 1989 Toyota Celica. He has known Ayestas since they were 13 years old. They met in a first communion class and the two became good friends. He used to “hang out in her house.”
Romero met Ayestas’s boyfriend, Leo Fitch, in January or February of 2007. The two young men became good friends and they, along with Ayestas, began to socialize together. Ayestas, Fitch and Romero would do such things as go to the movies or Citywalk. They would usually go to these places in Ayestas’s car, a maroon Jeep Cherokee. At times, when Ayestas was at the pizzeria where she worked, Fitch and Romero would do things together. On most occasions they would drive around the city looking for an apartment to rent; Romero, Ayestas and Fitch planned to move in to an apartment together.
b. Count 1 - the September 23, 2007 burglary of the Lavian home.
On the evening of September 23, 2007, Ayestas, accompanied by Fitch and Romero, drove the Jeep Cherokee to a swap meet. There, at Ayestas’s direction, the three purchased black T-shirts, gloves and bandanas. Ayestas then drove to Beverly Hills. Ayestas told Romero and Fitch that they were going to Beverly Hills because she wanted to burglarize some houses so the three could “get some money” for an apartment. After approximately 30 minutes, during which Fitch and Ayestas looked for a house that was dark, had no cars in the driveway, had no “dog sign” and no “alarm sign,” Ayestas pulled over in front of a house and told Fitch to “ ‘go knock on the door [to] see if anybody [was] there.’ ” When no one answered, Ayestas drove the Jeep up the block and parked. The three then put on the T shirts, bandanas and gloves and went to the alley behind the house. From the alley they entered the yard through an unlocked gate. Ayestas and Fitch broke a window and they, along with Romero, entered the house. Each of the three went to a different room to look for valuables. They left the house when they saw a car’s headlights pull into the driveway.
Mahnoush Lavian lives with her husband and three children at 227 North Wetherly Drive in Beverly Hills. At approximately 9:00 p.m. on September 23, 2007, Lavian, her husband and the children left the house to go to the market. Lavian had closed the windows and locked the doors. The family was gone for approximately 20 minutes. When they returned to the house, Lavian noted that a screen to a bedroom window had been broken, the window was open and the light in the room had been turned on. The contents of her purse had been dumped out onto the bed and the $500.00 in cash which had been in the purse was missing.
c. Count 2 – the September 25, 2007 burglary of the Bazar residence.
On September 25, 2007, Athena Bazar and her husband lived in a house at 228 South Maple Drive in Beverly Hills. That day, Athena Bazar left her house at approximately 7:30 a.m. Her husband left the house at about 11:00 a.m. When they returned at approximately 5:00 p.m., the Bazars realized that their house had been burglarized. The window next to the Bazars’ bed had been broken and the screen pulled away from the glass. In the bedroom, Bazar saw that a tin box in which she kept important papers such as her passport had been opened and its contents strewn across the floor. In addition a WII playstation was missing and the Bazar’s closets had been ransacked. Among the items taken were Athena Bazar’s jewelry, rolls of coins, Bazar’s husband’s checks, a gameboy, a computer and $2,000 in currency. In total, approximately $50,000 worth of personal property was taken.
During a later search of the apartment where Ayestas was living with her mother, police officers found in Ayestas’s bedroom a WII playstation with the same serial number as that on the one taken from the Bazars’ home.
d. Count 3 – the October 1, 2007 burglary of the Ye residence.
On October 1, 2007, John Ye, his wife and two young sons lived at 411 South Arden Boulevard in Los Angeles. A fence surrounds the property.
On that day, Ye left the house at approximately 7:30 a.m. His wife left shortly before 8:00 a.m. to take the two boys to school. At approximately 7:00 p.m., Ye received a telephone call from his wife who told him that someone had broken into the house. Ye went home to find his wife and children in the car. The front door to the house was unlocked and open. When Ye went inside and saw that the house was in a “shambles,” he immediately stepped outside of the house and called the police.
When, after several minutes it became clear that no one was inside the house, Ye went in and went upstairs to his bedroom. The room was in total disarray. The drawers were all open and the clothes were on the floor. The drawer where Ye’s wife kept her jewelry was open and all the boxes and containers had been opened and emptied. As Ye walked from one room to the next, he noted that they were all in a “shambles” with drawers open and articles of clothing and other items on the floor.
Sometime later, Ye noted that the window into his older son’s bedroom was open and the screen was bent out. The window, which is on the second floor, is on top of a cloth awning. The awning was ripped as though someone had stepped on it.
Ye had the package to one of the I-phones taken from his home. The serial number on the package matched that of an I-phone recovered by the Beverly Hills Police Department. In addition, some of the jewelry and watches were discovered at a nearby pawnshop.
When Ye took an informal inventory of property that was missing, he discovered that all of his son’s computer games were gone, three Rolex watches had been taken, all of his wife’s jewelry, including several watches, was missing, and most of his wife’s handbags were missing. In total, $250,000 to $300,000 worth of personal property had been taken during the burglary.
e. Counts 4 and 5 – the October 2, 2007 attempted burglary of the home of Joseph and possession of burglar’s tools.
At approximately 2:00 p.m. on October 2, 2007, Beverly Hills Police Officer Richard Ceja was on patrol in the area surrounding 325 South Palm Drive. Ceja was in the alley which runs behind the homes on South Palm Drive when he observed an older model maroon Jeep Cherokee parked in the center of the alley, blocking the roadway. As he approached the Jeep, the officer noticed that the tag on the license plate had expired. Ceja got out of his patrol car to get a closer look at the Jeep when Ayestas came out of the gate leading to the yard behind 325 South Palm Drive.
Ayestas made eye contact with the officer and immediately went to the front of the Cherokee, opened the driver’s side door, leaned in and appeared to remove something from her hands. She then stood up, walked toward the officer, waved and said, “ ‘I’m moving, officer. Everything’s fine. I’m moving.’ ” Ceja asked Ayestas where she was coming from and she pointed toward 325 South Palm, stated that she was a domestic there and that she had been locked out. Since she could not get into the house, she was going to go home.
Joseph had testified that he and his wife did not employ any domestic workers.
Ceja asked Ayestas about the expired tag on the license plate. Ayestas retrieved the new tag from inside the car and placed it on the license plate. According to Ceja, Ayestas appeared to be very nervous. She abruptly told the officer, “ ‘Okay,’ ” then attempted to leave. Ceja called Ayestas back and asked her if she had any identification. She told the officer that she had a valid California Driver’s license, but had no identification on her. When Ceja then asked her if she had any identification with a picture on it, Ayestas retrieved an employment stub from a business in Los Angeles. Since Ayestas had just told the officer that she worked as a domestic in Beverly Hills, he became suspicious. When she then could not give the officer the name of her employer in Beverly Hills, Ceja asked Ayestas if he could search the Jeep. Ayestas consented and, during the search, the officer found on the floorboard by the driver’s seat a folding knife with a broken tip, a pair of red gloves and a flashlight. In the back seat of the Jeep, Ceja found a black glove and another flashlight. As he moved around to the passenger side of the vehicle, the officer found on the floorboard a large bag of coins. In the glove compartment, he found some cash. Inside a purse which was sitting on the center compartment, Ceja found a California Identification Card in the name of Ivett Ayestas. Next to that was a California driver’s license in the name of Leo Fitch.
Shortly thereafter, the officer saw Fitch walking down the alley toward him and Ayestas. The officer waved and called out “ ‘Hi, Leo.’ ” Ayestas then said in a very loud voice, “ ‘That’s my boyfriend, Leo.’ ” Fitch approached the officer in a slow, hesitant manner. When he was approximately one foot from the officer, Ceja patted him down. From inside a cargo pocket, Ceja retrieved a large screwdriver with a slightly bent tip. From the same pocket, the officer recovered two black gloves.
During his initial search of the Jeep, Ceja had asked Ayestas if the knife and other objects found belonged to her. Ayestas stated, “ ‘The knife, the stuff in the front, yes. And the stuff in the back seat, it’s either mine or my boyfriend’s.’ ”
Joseph Joseph and his wife live in the house at 325 South Palm Drive in Beverly Hills. A stone wall surrounds the property. There is a side gate and a gate in the back which leads to an alley. Before October 2, 2007, the Josephs did not lock the gate leading to the alley. Joseph opened that gate daily, usually between 6:00 p.m. and 8:00 p.m., to take out the trash. When he took the trash out on October 1, 2007, he did not notice anything unusual about the gate. Everything was in working order.
On October 2, 2007, Joseph arrived home to find a business card from a Beverly Hills police officer asking him to call the department. When Joseph called, he was told that there had been an attempted burglary and that he should look around his residence to see whether anything was awry. As he looked around the property, Joseph noticed that the latch on his back gate had been tampered with.
f. Count 6 – The October 4, 2007 burglary of Phelps’s and Cahoon’s home
Romero testified that, on October 4, 2007, he telephoned Ayestas to see how she was doing and whether she and Fitch had found an apartment. Ayestas told Romero that she and Fitch had not yet found an apartment, but that she wanted Romero to come over and give her a ride to a store where she could cash a check. When Romero arrived at Ayestas’s home, she and Fitch were there. Fitch, Ayestas and Romero got into Romero’s car and Ayestas directed Romero to a pawn shop approximately five blocks from her house. After she cashed her check, Ayestas told Romero that she wanted to go for a ride. Ayestas then directed Romero to drive to the hills above Hollywood. As he was driving, Ayestas and Fitch told Romero where to turn and which direction to go until they reached a particular house located at 2501 Verbena Drive.
Fitch knocked on the door and, when no one answered, Ayestas directed Romero to park the car up the street. Romero, Ayestas and Fitch walked around the house until they saw a window slightly open above a second floor balcony. They were able to climb up onto the balcony and enter the house by sliding the window open further. After climbing in through the window, Fitch, Ayestas and Romero had to step onto a couch to get into the room. Once they entered the house, each one of the three went to a separate room to search for valuables. Between Ayestas, Fitch and Romero, they took jewelry and a play station. They put all of the items in a yellow bag, which Romero then put in his trunk. He then drove back to Ayestas’s house.
On October 4, 2007, Meagan Phelps and her husband, Todd Cahoon, lived at 2501 Verbena Drive. That day Phelps left the house at approximately 9:00 a.m. and her husband left sometime later in the morning. At approximately 2:30 p.m., Phelps received a telephone call from her husband telling her that their house had been burglarized and she immediately drove home. Phelps’s husband, who was outside the house with a neighbor, prevented Phelps from going into the house. Police officers arrived “within minutes,” and entered the house. After the police officers had conducted their investigation, Phelps went inside her home. She first noticed that everything was in disarray. Drawers had been turned upside down and there were dark footprints on the white sofa. A second story window which opens onto a balcony and which was usually left slightly open so that the cats could go out had been opened further. In the living room, all the drawers from a book shelf and sideboard had been taken out and turned upside down and clothes had been scattered around the room. Phelps next went into the bathroom where she keeps all her jewelry only to find that most of the jewelry was gone. All of the drawers from the furniture in the master bedroom and two guest rooms had been taken out and turned upside down. Clothing and other items were missing.
After Ayestas, Romero and Fitch arrived at Ayestas’s house, they got out of the car and, as they walked toward the house, realized that police officers were there searching the apartment Ayestas shared with her mother. The officers told Ayestas, Romero and Fitch to put their hands where they could be seen and to walk slowly toward them. The officers then took Ayestas, Fitch and Romero into custody.
2. Procedural history
Ayestas was charged by information with four counts of first degree residential burglary, one count of attempted first degree residential burglary and the misdemeanor of possession of burglar’s tools. It was further alleged that, at the time of the commission of the offenses, Ayestas was released from custody on bail or her own recognizance within the meaning of section 12022.1 and had suffered a conviction for a serious felony within the meaning of section 667, subdivision (a) and the Three Strikes law.
A jury found Ayestas guilty as charged. The trial court found true the allegation Ayestas committed the offenses while released on bail or her own recognizance after having been convicted of carjacking.
Ayestas filed a motion and “Statement in Mitigation” seeking to have her prior conviction for carjacking stricken in furtherance of justice (§ 1385). The trial court denied the motion.
The trial court sentenced Ayestas to the mid-term of four years for the burglary committed as alleged in count 1, then doubled the term to eight years pursuant to the Three Strikes law. As to the burglary committed as alleged in count 2, the trial court imposed a consecutive term of one-third the mid-term, or 16 months, then doubled it to 32 months pursuant to the Three Strikes law. As to count 3, the trial court imposed a consecutive term of one-third the mid-term, or 16 months, then doubled it to 32 months. With regard to count 4, the attempted burglary, the trial court struck the prior conviction pursuant to section 1385 as to that count only, then imposed a mid-term sentence of 24 months, the term to run concurrently with the sentences imposed with regard to counts 1, 2 and 3. For the misdemeanor charge of possession of burglar’s tools as alleged in count 5, the trial court imposed a sentence of 180 days in county jail, then granted Ayestas credit for 180 days served. Finally, as to count 6, the trial court imposed one-third the mid-term, or 16 months, then doubled it to 32 months pursuant to the Three Strikes law. For the allegation made with regard to section 667, subdivision (a), the trial court imposed a consecutive term of five years in prison. In total, the trial court sentenced Ayestas to 21 years in state prison.
CONTENTIONS
1. The trial court “abused [its]... section 1385 discretion by denying a Romero motion brought on behalf of... a youthful offender with an abusive childhood and the potential for redemption.”
2. “The 21[-]year[] sentence constitutes cruel and unusual punishment and violates both the federal and state constitutions.”
DISCUSSION
1. The trial court properly exercised its section 1385 discretion when it denied Ayestas’s motion to strike her prior conviction
Prior to sentencing, Ayestas filed a “Notice of Request That [the] Court Dismiss [Her] Prior Conviction Alleged Under [the] Three Strikes Law.” In the motion, Ayestas asserted that her current offenses were neither violent nor life threatening, that she was only 19 years old when they were committed (Cal. Rules of Court, rule 4.413 (c)(2)(C)) and that the current crimes were committed because of “a mental condition not amounting to a defense, [but indicating] a high likelihood that the defendant would respond favorably to mental health care and treatment.” (Id., rule 4.413(c)(2)(B).) In addition, she indicated that she discovered her father’s dead body “hanging from a rope” at age two, and, beginning at age 10, was repeatedly sexually abused by her stepfather.
“A court’s discretion to strike prior felony conviction allegations in furtherance of justice is limited. Its exercise must proceed in strict compliance with section 1385(a), and is subject to review for abuse.” (People v. Superior Court (Romero) (1996)13 Cal.4th 497, 530.) “[I]n ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law,..., ‘in furtherance of justice’ pursuant to Penal Code section 1385(a), or in reviewing such a ruling, 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.) On appeal, “ ‘[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.’ [Citation.] Concomitantly, ‘[a] decision will not be reversed merely because reasonable people might disagree. “An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.” [Citations.]’ ” (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.)
In the present case, prior to the burglaries, Ayestas committed a carjacking during which she used a toy gun to intimidate the victim. She had been placed on probation for that offense in June of 2007. She committed the first of the several burglaries in September of 2007. In addition, Ayestas was first taken into custody on October 2, 2007. On October 4, after having been released, she committed another burglary. It should also be noted that Ayestas was the “leader in committing these crimes in that she [was] the one that convinced John Romero... that if he didn’t go along with it, he [would not be considered] a good friend. She drove her car to each of the burglaries except for the last one, and she was instrumental in purchasing the gloves and the bandanas and the T-shirts to commit the burglaries.” The prosecutor argued that Ayestas was incorrigible and, unless properly punished, would only continue to commit crimes.
Counsel for Ayestas asserted that Ayestas would have “a lot of potential” if she were to receive appropriate assistance. While undergoing treatment by a therapist, she earned a 3.8 grade point average in school and had been accepted to New York University. Counsel indicated that Ayestas “has a very checkered past, and [that] all of this... has contributed to her unfortunate current state of mind. She is a confused young lady, and [counsel believed] that if she went to prison for 20-plus years, all that [was] going to do [was] make her hard.... She [would] never... be able to reintegrate into society.”
The trial court indicated that Ayestas’s counsel’s arguments had been made when she was sentenced for the carjacking and that, in view of those arguments, the trial court had shown a “great deal of leniency.” After having been granted such leniency, Ayestas simply returned to her criminal activities. Moreover, as the trial court noted, “Ayestas seemed to play more of a leadership role... than [defense] counsel [was] suggesting.” After noting that Ayestas had indicated that she was simply “ ‘in the wrong place at the wrong time or [she] made bad choices[,]’ ” the trial court stated: “It’s not a matter of just choices the court is looking at. I’m looking at a young lady who was 19 at the time this happened, 20 years old now who violated what is the most personal and most sacred parts of our community in that she entered other people’s homes and stole from them, not once, not twice but over an extended period of time.”
After indicating that Ayestas “look[ed] like a 20-year-old kid who doesn’t seem to have a conscience about her actions,” the trial court properly denied the motion to strike her prior conviction. There was no abuse of discretion. The trial court correctly concluded Ayestas could not be deemed outside the “spirit” of the Three Strikes sentencing scheme. (People v. Williams, supra 17 Cal.4th at p.161.)
2. Ayestas’s 21-year sentence does not constitute cruel and/or unusual punishment in violation of the federal and state constitutions
a. Ayestas’s sentence does not violate the United States Constitution
“The Eighth Amendment, which forbids cruel and unusual punishments, contains a ‘narrow proportionality principle’ that ‘applies to noncapital sentences.’ ” (Ewing v. California (2003) 538 U.S. 11, 20, citing Harmelin v. Michigan (1991) 501 U.S. 957, 996-997.) In Ewing, the court indicated that “[e]nhanced sentences under recidivist statutes like the three strikes law,... serve a ‘legitimate goal’ of deterring and incapacitating repeat offenders.” (538 U.S. at p. 20, citing Rummel v. Estelle (1980) 445 U.S. 263.)
In Ewing, the defendant had previously been convicted of numerous crimes, including three burglaries and a robbery. After serving a nine-year prison term, Ewing had been on parole for only 10 months when he stole three golf clubs worth approximately $1,200. (Ewing v. California, supra, 538 U.S. at p. 19.) At sentencing, Ewing asked the trial court to reduce his crime, which was a “ ‘wobbler,’ ” to a misdemeanor or to strike one or more of his prior felony convictions. The trial court, however, declined to do so and sentenced Ewing to a term of 25 years to life.
In determining that the sentence imposed did not violate the Eighth Amendment, the Ewing court indicated that its “traditional deference to legislative policy choices finds a corollary in the principle that the Constitution ‘does not mandate adoption of any one penological theory.’ [Citation.] A sentence can have a variety of justifications, such as incapacitation, deterrence, retribution, or rehabilitation. [Citation.] Some or all of these justifications may play a role in a State’s sentencing scheme. Selecting the sentencing rationales is generally a policy choice to be made by state legislatures, not federal courts. [¶] When the California Legislature enacted the three strikes law, it made a judgment that protecting the public safety requires incapacitating criminals who have already been convicted of at least one serious or violent crime. Nothing in the Eighth Amendment prohibits California from making that choice. To the contrary, our cases establish that ‘States have a valid interest in deterring and segregating habitual criminals.’ [Citations.]” (Ewing v. California, supra, 538 U.S. at p. 25; see Lockyer v. Andrade (2003) 538 U.S. 63, 72-77.)
Here, while on parole for carjacking, Ayestas committed four, first degree, residential burglaries, one attempted first degree, residential burglary and possessed burglar’s tools. As the California Supreme Court indicated in People v. Valencia (2002) 28 Cal.4th 1, 7, historically, the burglary statute was intended to “ ‘protect the sanctity of a person’s home.... As one commentator observed: “The predominant factor underlying common law burglary was the desire to protect the security of the home, and the person within his home. Burglary was not an offense against property, real or personal, but an offense against the habitation, for it could only be committed against the dwelling of another.... The dwelling was sacred....’ ” (Ibid.) More recently, burglary laws have been based on the “ ‘ “ ‘recognition of the dangers to personal safety created by the usual burglary situation—the danger that the intruder will harm the occupants in attempting to perpetrate the intended crime or to escape and the danger that the occupants will in anger or panic react violently to the invasion, thereby inviting more violence. The laws are primarily designed, then, not to deter the trespass and the intended crime, which are prohibited by other laws, so much as to forestall the germination of a situation dangerous to personal safety.’ ” ’ ” (Ibid., quoting People v. Davis (1998) 18 Cal.4th 712, 720-721.)
Here, Ayestas attempted to enter only homes which, at the time of the burglary, were not occupied. However, in view of the fact that she had previously committed a carjacking, it is unclear how she would have reacted had an occupant come home and surprised her. (People v. Ingram (1995) 40 Cal.App.4th 1397, 1414 (overruled on another ground in People v. Dotson (1997) 16 Cal.4th 547, 560, fn. 8) [“The victims of defendant’s crimes were fortunate they did not encounter defendant in the act of burglarizing their homes, but no one knows what might have happened had he confronted someone...”].) The burglaries were serious crimes which placed both the victims and the burglars in danger. Under these circumstances, Ayestas’s sentence of 21 years was not cruel and unusual.
b. Ayestas’s sentence does not violate the state Constitution
In People v. Wingo (1975) 14 Cal.3d 169, 174, the court noted “the considerable burden a defendant must overcome in challenging a penalty as cruel or unusual. The doctrine of separation of powers is firmly entrenched in the law of California, and a court should not lightly encroach on matters which are uniquely in the domain of the Legislature. Perhaps foremost [of] these are the definition of crime and the determination of punishment.” (Fn. omitted.) “While these intrinsically legislative functions are circumscribed by the constitutional limits of article I, section 17, the validity of enactments will not be questioned ‘unless their unconstitutionality clearly, positively, and unmistakably appears.’ ” (Ibid., citing In re Lynch (1972) 8 Cal.3d 410, 415, quoting from In re Dennis M. (1969) 70 Cal.2d 444, 453.) It has been concluded that “in California a punishment may violate article I, section 6,... 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, supra, at p. 424.)
In determining whether a punishment “shocks the conscience,” several factors should be considered: (1) “the nature of the offense and/or the offender, with particular regard to the degree of danger both present to society” (In re Lynch, supra, 8 Cal.3d at p. 425); (2) the comparison of “the challenged penalty with the punishments prescribed in the same jurisdiction for different offenses which, by the same test, must be deemed more serious[;]” and (3) “a comparison of the challenged penalty with the punishments prescribed for the same offense in other jurisdictions having an identical or similar constitutional provision.” (Id. at pp. 426-427, italics in original.)
With regard to the first of the three Lynch tests, in People v. Dillon (1983) 34 Cal.3d 441, the court considered the nature of the offense of a robbery-murder. There, the court recognized “that when it is viewed in the abstract robbery-murder presents a very high level of such danger, second only to deliberate and premeditated murder with malice aforethought. In conducting this inquiry, however, the courts are to 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. [¶] Secondly, it is obvious that the courts must also view ‘the nature of the offender’ in the concrete rather than the abstract:... This branch of the inquiry therefore focuses on the particular person before the court, and asks 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.” (Id. at p. 479.)
In the present case, although Ayestas was only 19 years old at the time the crimes were committed, she was, without a doubt, the instigator. It was her idea to go buy black T-shirts, bandanas and gloves. It was her idea to burglarize homes in Beverly Hills and the Hollywood hills. Ayestas committed the series of burglaries while on probation for carjacking, a not insignificant offense. Ayestas was first taken into custody on October 2, 2007. On October 4, she committed another burglary. Finally, as noted above, the trial court indicated that Ayestas “look[ed] like a 20-year-old kid who doesn’t seem to have a conscience about her actions.”
Comparing the challenged penalty with the punishments prescribed in the same jurisdiction for different offenses which, by the same test, must be deemed more serious, it must be noted that Ayestas is not being punished just for the newly proven offenses, but for a prior offense as well. Ayestas was granted probation for her conviction of carjacking, a serious felony. Rather than comply with the terms of her probation, Ayestas committed four residential burglaries and one attempted residential burglary, all of which are serious felonies. She is a recidivist and “[a] long line of Supreme Court cases have held that recidivism is a proper sentencing factor.” (People v. Romero (2002) 99 Cal.App.4th 1418, 1431; see People v. Martinez (1999) 71 Cal.App.4th 1502, 1512.)
As for the third prong of the Lynch test, the comparison of Ayestas’s sentence to that which would be imposed in other jurisdictions, it has been noted that “California’s Three Strikes law is among the most severe recidivist schemes in the nation. ‘That California’s punishment scheme is among the most extreme does not compel the conclusion that it is unconstitutionally cruel or unusual. This state[’s] constitutional consideration does not require California to march in lockstep with other states in fashioning a penal code. It does not require “conforming our Penal Code to the ‘majority rule’ or the least common denominator of penalties nationwide.” [Citation.] Otherwise, California could never take the toughest stance against repeat offenders or any other type of criminal conduct.’ [Citation.]” (People v. Romero, supra, 99 Cal.App.4th at p. 1433; People v. Martinez, supra, 71 Cal.App.4th at p. 1516.)
Ayestas’s sentence of 21 years in prison for a prior conviction of carjacking, four residential burglaries and one attempted residential burglary neither “shocks the conscience [nor] offends fundamental notions of human dignity.” (In re Lynch, supra, 8 Cal.3d at p. 424.) It does not constitute cruel or unusual punishment.
DISPOSITION
The judgment is affirmed.
We concur: KLEIN, P. J., KITCHING, J.