Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Fresno County No. F05400027-9. Robert H. Oliver, Judge.
Daniel G. Koryn, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and Clifford E. Zall, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HARRIS, Acting P.J.
STATEMENT OF THE CASE
On June 23, 2005, the Fresno County District Attorney filed an information in superior court charging appellant Jeffery Xavier McDowell with second degree robbery (Pen. Code, § 211) with multiple prior serious felony convictions (§ 667, subd. (a)(1)), prior strike convictions (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and prior prison terms (§ 667.5, subd. (b)).
On June 24, 2005, appellant was arraigned, pleaded not guilty to the substantive count, and denied the special allegations.
On December 5, 2006, jury trial commenced. On December 11, 2006, the fifth day of jury trial, both sides rested.
On December 12, 2006, the jury returned a verdict of guilty on the substantive count. That same date, appellant waived a jury trial of the special allegations and admitted the truth of two prior serious felony convictions (Pen. Code, § 667, subd. (a)(1)), four prior strike convictions (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and three prior prison terms (§ 667.5, subd. (b)).
On or about January 9, 2007, appellant filed a statement in mitigation.
On January 11, 2007, the court denied appellant probation and sentenced him to a determinate term of 13 years followed by an indeterminate term of 25 years to life in state prison. With respect to the determinate term, the court imposed two 5-year terms for the prior serious felony convictions and three 1-year terms for the prior prison terms. As to the indeterminate portion of the sentence, the court imposed an indeterminate term of 25 years to life in state prison pursuant to the three strikes law. The court imposed a $10,000 restitution fine (Pen. Code, § 1202.4, subd. (b)), imposed and suspended a second such fine pending successful completion of parole (§ 1202.45), and imposed a $20 court security fee (§ 1465.8). The court also awarded 192 days of custody credits and ordered appellant to provide samples of prints and bodily fluids (§ 296).
On January 12, 2007, appellant filed a timely notice of appeal.
STATEMENT OF FACTS
In 2004, Alice Yamamoto worked as a store manager of the U-Save Market on South Mendocino Avenue in Parlier. At approximately 5:45 p.m. on December 31, 2004, Yamamoto drove to the Parlier branch of the Bank of the West and received $50,500 in $100 and $5 bills. The bills were placed in a canvas bag. After receiving the currency, Yamamoto placed the bank bag on the passenger side of her vehicle and drove back to the U-Save Market.
Yamamoto returned to the store between 6:05 and 6:10 p.m. and parked eastbound on Ann Street. As she opened her car door, appellant approached from behind and placed his hand on her left shoulder. She tried to turn to the left but something hard pushed against her face and cut her. Yamamoto became scared because she did not know whether appellant had a gun. Appellant reached over Yamamoto and grabbed the money bag from the passenger side of the car. Appellant then ran east with the bag into an empty lot behind the store.
Yamamoto ran into the store and called the Parlier police. Officers responded to the 911 call and took Yamamoto to a nearby location, where appellant’s brother, Otis Gallon, was being detained. However, Yamamoto was unable to identify Gallon as the robber. Several days after the crime, Yamamoto reviewed a photographic lineup and identified appellant as the robber.
Parlier Police Officer Angel Landin responded to the December 31 robbery call. Officer Landin drove into the rear alleyway of the store and saw Otis Gallon standing in the loading dock area. Landin detained and searched Gallon but did not recover any money. When Alice Yamamoto was unable to identify Gallon as the robber, Landin released him from custody.
Monica Gonzalez worked as a front desk clerk at the La Quinta Inn off of Tulare Street in Fresno. On December 31, 2004, appellant, Gallon, and one Jade Anderson rented two rooms between 9:00 and 10:00 p.m. All three had large sums of wadded cash and they argued about who would pay the hotel bill.
In 2004 and 2005, Bob Perales worked at Pak Auto Mall in Parlier. On January 2, 2005, appellant, Gallon, and a female went to the Pak Auto car lot. Appellant bought a Nissan for $8,800 in cash. Gallon bought a car for about $10,900 in cash. Appellant and Gallon used mostly $100 bills to make their purchases. Perales immediately notified the Parlier police of the large cash purchases.
Parlier Police Officers Rene Jimenez and Angel Landin went to Pak Auto Mall in response to Perales’s January 2, 2005, telephone call. Jimenez approached appellant and advised that he was investigating a robbery. Although Jimenez did not say anything about money, appellant told the officer he had just arrived from Richmond and had obtained the money from his family. After appellant was arrested, the officers recovered $2,441 in $100 bills from appellant’s right front pants pocket.
After waiving his rights under Miranda v. Arizona (1966) 384 U.S. 436, appellant submitted to an interview by Officer Jimenez and Fresno County Sheriff’s Detective Mennena. Appellant told the officers he was not employed. He explained he was from Richmond and had traveled to Parlier to visit his brother on December 30, 2004. Appellant said he left Parlier at 5:00 p.m. on December 31, 2004, and returned to Richmond. Appellant also said he came back to Parlier on January 2, 2005.
Gallon acknowledged that he, appellant, and Jade Anderson spent the evening of December 31, 2004, at the La Quinta Inn in Fresno. Officer Jimenez subsequently went to the hotel, interviewed Monica Gonzalez, and obtained the hotel’s video security tape. That tape-recording depicted appellant and Gallon holding rolled up wads of money.
Christine Fernandez said she dated appellant’s brother, Otis Gallon, in 2004. On December 31, 2004, Fernandez lived with Gallon in a Parlier apartment located one mile from the U-Save Market. Appellant stayed at the apartment on the Wednesday or Thursday preceding December 31, 2004. At 6:00 p.m. on December 31, appellant and Gallon left the apartment in Fernandez’s car. Appellant and Gallon returned her vehicle at 8:00 p.m. and then left again.
Fernandez picked up appellant and Gallon at the Fresno Amtrak station on the evening of January 1, 2005, and took them to the apartment. Gallon, who was not working at the time, had a large sum of cash. The cash consisted of $100 bills. On January 2, 2005, Fernandez went with Gallon and appellant to the Pak Auto Mall. She said the two men paid cash for several used cars. Gallon initially did not have enough cash to complete his purchase. However, after conferring with appellant, Gallon was able to produce sufficient cash.
Defense
Kathy McDowell testified that she married appellant in June 2004 and resided in Richmond, California at the time of trial. On the morning of December 31, 2004, appellant left Richmond to see his brother in Fresno. On that same date, Kathy gave her friend, Jade Anderson, an envelope containing $11,500 in cash. Anderson was Otis Gallon’s girlfriend. She instructed Anderson to give the envelope to appellant so he could buy a new car. The envelope contained $100, $50, $20, and $1 bills. Kathy McDowell claimed the cash came from friends, family members, and from tips she earned as a hairdresser.
Jade Anderson said she was Otis Gallon’s girlfriend in December 2004. She arrived in Fresno on the evening of December 31 and shared a room with Gallon at the La Quinta Inn. Appellant had a separate room. Anderson said she used $20 bills to pay for the room she shared with Gallon. She believed Gallon paid for appellant’s room. Anderson said Kathy McDowell had given her an envelope to give appellant but Anderson did not know the contents of the envelope. She did not see appellant with money. Anderson, Gallon, and appellant drove to Richmond on January 1, 2005. She dropped appellant and Gallon off at the Amtrak station in Richmond so they could return to Fresno.
DISCUSSION
I.
CALCRIM NOS. 220 AND 222
Appellant contends the trial court committed reversible error by instructing the jury in CALCRIM Nos. 220 and 222.
CALCRIM No. 220 (reasonable doubt), as read to the jury, stated:
“This is the reasonable doubt instruction you’ve had read to you before. The fact that a criminal charge has been filed against this defendant is not evidence that the charge is true. You must not be biased against the defendant just because he has been arrested, charged with a crime, or brought to trial.
“A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove each element of a crime and special allegation beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt unless I would specifically tell you otherwise.
“Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt. In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal, and you must find him not guilty.”
CALCRIM No. 222 (evidence), as read to the jury, stated:
“You must decide what the facts are in this case. You must use only the evidence that was presented in this courtroom. Evidence is the sworn testimony of witnesses, the exhibits admitted into evidence, and anything else I told you to consider as evidence.
“Nothing that the attorneys say is evidence. In their opening statements and closing arguments the attorneys discuss the case, but their remarks are not evidence. Their questions are not evidence. Only the witness’ answers are evidence. The attorneys’ questions are significant only if they help you to understand the witness’ answers. Do not assume something is true just because one of the attorneys asked a question that suggested it was true.
“During the trial the attorneys may have objected to questions or moved to strike answers given by the witnesses. I ruled on the objections according to the law. If I sustained an objection, you must ignore the question. If the witness was not permitted to answer, do not guess what the answer might have been or why I ruled as I did. If I order testimony stricken from the record, you must disregard it and must not consider that testimony for any purpose.
“You must disregard anything you saw or heard when the court was not in session, even if it was done or said by one of the parties or witnesses.
“The court reporter has made a record of everything that was said during the trial. If you decide that it was necessary, you may ask the court reporter’s notes be read to you. You must accept the court reporter’s notes as accurate.
“During the trial you were told the People or defense agreed or stipulated to certain facts. This means they both accept these facts. And because there is no dispute about these facts, you must accept them as true.”
Appellant contends:
“These two instructions were erroneously given because by expressly limiting the jury’s consideration only to evidence which was affirmatively presented at trial, the court deterred the jury from also considering constitutionally relevant evidence concerning the lack of evidence in determining whether a reasonable doubt existed as to appellant’s guilt.
“Specifically, the theory of defense in this case was based on the lack of evidence to prove appellant committed the charged offense as appellant allegedly took approximately $50,500 during the robbery of Alice Yamamoto, which was never recovered. Although the evidence showed appellant bought a used car for cash, stayed at a Hotel, and had cash on his person when he was arrested, the defense testimony demonstrated he received approximately $11,500 from his wife. The rest of the money was unaccounted for and never recovered. Nevertheless, the court’s instructions interfered directly with appellant’s ability to raise a reasonable doubt as to his guilt. [¶] ... [¶]
“Here, there is a reasonable likelihood the jurors in this case applied CALCRIM Nos. 220 and 222 in a way that prevented them from considering constitutionally relevant evidence concerning the lack of evidence in determining whether a reasonable doubt existed as to appellant’s guilt. This exclusion from the jury’s consideration of evidence which would have been expected to exist under the prosecution’s factual theory of the case but was not received at trial led the jury to convict appellant ‘on a lesser showing than due process requires.’ (Victor v. Nebraska (1994) 511 U.S. 1, 22.)”
In People v. Flores (2007) 153 Cal.App.4th 1088, 1093 (Flores), this court found no violation of appellant’s federal constitutional rights arising from the language of CALCRIM Nos. 220 and 222. This court specifically addressed a contention that the instructions denied a defendant’s federal right to due process because it prevented the jury from considering the lack of evidence in determining whether a reasonable doubt existed as to defendant’s guilt. (Flores, supra, at pp. 1091-1092.) We held in pertinent part:
“The due process clause of the Fourteenth Amendment protects the accused against conviction except on proof beyond a reasonable doubt. (In re Winship (1970) 397 U.S. 358, 361-362, & cases cited therein.) The United States Constitution does not require jury instructions to contain any specific language, but they must convey both that the accused is presumed innocent until proved guilty and that the accused may be convicted only upon proof beyond a reasonable doubt. (Victor v. Nebraska (1994) 511 U.S. 1, 5.) When reviewing the correctness of reasonable doubt charges, the proper constitutional inquiry is ‘whether there is a reasonable likelihood that the jury understood the instructions to allow conviction based on proof insufficient to meet the Winship standard.’ (Id. at p. 6.) ‘“The essential connection to a ‘beyond a reasonable doubt’ factual finding cannot be made where the instructional error consists of a misdescription of the burden of proof, which vitiates all the jury’s findings.” [Citation.] Where such an error exists, it is considered structural and thus is not subject to harmless error review. [Citation.] However, if a jury instruction is deemed “ambiguous,” it will violate due process only when a reasonable likelihood exists that the jury has applied the challenged instruction in a manner that violates the Constitution. [Citation.] Any challenged instructionmust be considered in light of the full set of jury instructions and the trial record as a whole. [Citation.]’ (Gibson v. Ortiz (9th Cir. 2004) 387 F.3d 812, 820-821; see also People v. Smithey (1999) 20 Cal.4th 936, 963.)
“Here, the plain language of the instruction given tells the jury that ‘[u]nless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty.’ (CALCRIM No. 220.) Identical language was given in a similar instruction, CALCRIM No. 103, at the beginning of trial. The only reasonable understanding of this language is that a lack of evidence could lead to reasonable doubt. In addition, the trial court instructed the jury with CALCRIM No. 355, which specifically stated that a defendant ‘may rely on [the] state of the evidence and argue that the People have failed to prove the charges beyond a reasonable doubt.’” (Flores, supra, 153 Cal.App.4th at pp. 1092-1093.)
In the instant case, as in Flores, the trial court instructed the jury in CALCRIM Nos. 103 (reasonable doubt), 220 (reasonable doubt), and 222 (evidence). Appellant has not addressed the application of Flores to the facts of the instant case. Nevertheless, we respect stare decisis, which serves the important goals of stability in the law and predictability of decision. (Fire Ins. Exchange v. Abbott (1988) 204 Cal.App.3d 1012, 1023.) In view of our holding in Flores, we reject appellant’s challenge to CALCRIM Nos. 220 and 222.
II.
DENIAL OF MOTION TO STRIKE PRIOR STRIKE CONVICTIONS
Appellant contends the matter should be remanded for resentencing because the trial court did not adequately exercise its discretion in denying appellant’s motion to strike his prior strike convictions.
As noted above, a jury found appellant guilty of second degree robbery. After rendition of the verdict, appellant admitted and the court found true the special allegations that appellant had suffered two prior serious felony convictions (Pen. Code, § 667, subd. (a)(1)), four prior strike convictions (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and had served three prior prison terms (§ 667.5, subd. (b)). Prior to sentencing, defense counsel filed a “STATEMENT OF VIEWS” requesting the court to consider striking some of the prior strike convictions in the furtherance of justice. At the January 11, 2007, sentencing hearing, the court ruled in pertinent part:
“… I’m treating Mr. Green’s [defense counsel’s] statement of views as a Romero [People v. Superior Court (Romero) (1996) 13 Cal.4th 497] motion. And both in his earnest statement of views as well as his oral statements, I think the underlying reason for his request for Romero discretion is clearly set forth. The Court understands the discretion of the Court going back to Williams, Blakely, other cases, there are certain factors that the court should consider. As I indicated, the specific issue that Mr. Green raises, not without reason, by the way, is not among them as far as the Court can see. The factors that the Court believes may be appropriately raised would include such factors as the circumstances of the current crime which was based on the testimony of the witness-victim, certainly had with it actual or threatened violence. This defendant’s age, the nature of his previous offenses, the defendant’s willingness to participate in any programs, any skills he’s required just to name a few. The reality is that Mr. McDowell has a record of uninterrupted criminality as properly pointed out by Mr. Caples [deputy district attorney]. His period of time out of custody was de minimus in this particular circumstance. And reality had been de minimus throughout his life. But beginning as with the juvenile record in 1987 with petty theft, advancing through to felony burglary, possession of stolen property with, likewise, an escape. Going to his adult criminality beginning in 1992 with a 10851 auto theft showing as a misdemeanor, advancing in 1993 to a[n] uninterrupted but consistent series of convictions for 459/460 record, indicating a nine-year commitment to California Department of Corrections. Further a 4573.6 in December of 2001, a 459 burglary, drug offenses. A case that – and all I have here is the ultimate record. Not what may have been originally charged, but a Penal Code Section 666. And then numerous violations indicating, as the Court indicates, the untrammeled record of criminality. There is nothing in Mr. McDowell’s past or the record, taking into consideration the comments made by Ms. McDowell that would indicate any conceivable basis by which the Court could, under the law as it exists for Three Strikes discretion, or the striking of one or more strikes, exercise its discretion to strike as requested by Mr. Green. And the Court would therefore deny his request – invitation to strike pursuant to Romero as it is generally stated.”
On appeal, appellant contends the imposition of a “Three-Strike Sentence” exceeded the bounds of reason and constituted an abuse of discretion. He submits: “By judicially mandating the predominance of the factor regarding appellant’s prior criminal record (which was the very reason he was subject to ‘three-strike’ sentencing), the trial court did not exercise informed discretion under our decisions in Romero and Williams.”
We review a ruling upon a motion to strike a prior felony conviction under a deferential abuse of discretion standard. (People v. Williams (1998) 17 Cal.4th 148, 162.) Appellant bears the burden of establishing that the trial court’s decision was unreasonable or arbitrary. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978 [presumption that trial court acts to achieve lawful sentencing objectives].) We do not substitute our judgment for that of the trial court. (People v. Myers (1999) 69 Cal.App.4th 305, 310.) “It is not enough to show that reasonable people might disagree about whether to strike one or more of [the defendant’s] prior convictions.” (Ibid.) “[A] trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.” (People v. Carmony (2004) 33 Cal.4th 367, 377.)
Appellant challenges the court’s weighing of the relevant factors, arguing that the trial court “did not adequately exercise its discretion.” Appellant is essentially asking this court to reweigh the evidence and substitute our judgment for that of the trial court. This we will not do. “Where the record demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit 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 p. 310, quoted with approval in People v. Carmony, supra, 33 Cal.4th at p. 378.)
The record in this case affirmatively shows that the court understood its discretionary authority and that it weighed all of the competing facts to reach a reasoned and reasonable conclusion. Appellant submits his criminal history was not determinative of appropriate sentencing. Rather, he maintains it was but one factor for the sentencing court to consider in assessing “appellant’s ‘entire picture’.” As respondent notes, however, the trial court was well aware of its discretion under Penal Code section 1385 and carefully considered all relevant sentencing factors, including appellant’s background and prospects as set forth in the report of the probation officer. After evaluating the entirety of that information, the court drew its ultimate conclusion and declined to exercise its discretion to strike one or more of the strike priors. In view of these facts and circumstances, abuse of discretion has not been shown and reversal is not required. (See People v. Carmony, supra, 33 Cal.4th at pp. 378-380; People v. Myers, supra, 69 Cal.App.4th at p. 310.)
III.
CRUEL AND UNSUAL PUNISHMENT
Appellant contends his sentence is disproportionate and violates the bans against cruel and/or unusual punishment under the United States and California Constitutions.
Appellant specifically argues the imposition of a determinate term of 13 years plus an indeterminate term of 25 years to life is grossly disproportionate to appellant’s individual culpability and the threat he poses to society. He submits this is particularly true “given the nature of the individual offender combined with the nature of the offense.”
A. Federal Claim
The Eighth Amendment to the United States Constitution provides that there “shall not be … cruel and unusual punishments inflicted.” The prohibition against cruel and unusual punishment applies to the states as incorporated in the due process clause of the Fourteenth Amendment. (Robinson v. California (1962) 370 U.S. 660, 675 (conc. opn. of Douglas, J.).)
The United States Supreme Court has repeatedly held that the imposition of a lengthy prison sentence on a repeat offender imposed under a recidivist statute does not constitute cruel and unusual punishment. (Harmelin v. Michigan (1991) 501 U.S. 957; Hutto v. Davis (1982) 454 U.S. 370; Rummel v. Estelle (1980) 445 U.S. 263 (Rummel).) In noncapital cases, the United States Supreme Court has consistently deferred to state Legislatures to determine the appropriate length of prison sentences. (Rummel, supra, at p. 274.) Severe sentences imposed on repeat offenders promote a legitimate state interest in safeguarding society from crime. (Id. at p. 284.)
In Rummel, the United States Supreme Court held it was not cruel and unusual to impose a life sentence under a Texas recidivist statute where the defendant was convicted of obtaining $120.75 by false pretenses. (Rummel, supra, 445 U.S. at p. 266.) The defendant had previously been convicted of passing a forged check in the amount of $28.36 and of fraudulently using a credit card to obtain $80 worth of goods or services. (Id. at pp. 265-266.) In Hutto, the United States Supreme Court rejected an Eighth Amendment challenge to a 40-year prison term and a $20,000 fine for possessing and distributing nine ounces of marijuana. (Hutto v. Davis, supra, 454 U.S. at p. 371-372.) In Harmelin, the United States Supreme Court upheld a sentence of life without possibility of parole for possessing 672 grams of cocaine. (Harmelin v. Michigan, supra, 501 U.S. at pp. 961, 996.)
In Ewing v. California (2003) 538 U.S. 11 (Ewing), the United States Supreme Court recently upheld a 25-year-to-life sentence under the California three strikes law for a defendant who shoplifted golf clubs worth about $1,200 with prior burglary and robbery convictions. The court confirmed that the cruel and unusual punishment clause of the federal Constitution contains a narrow proportionality principle that prohibits grossly disproportionate sentences, but that successful challenges outside the context of capital punishment are exceedingly rare. (Ewing, supra, at pp. 20-21, citing Rummel, supra, 445 U.S. at pp. 271-272.) In a companion case, Lockyer v. Andrade (2003) 538 U.S. 63 (Andrade), the Supreme Court upheld two consecutive 25-year-to-life sentences under the three strikes law for a defendant who stole $150 worth of videotapes with three prior convictions for first degree burglary.
Appellant contends his “prison term of 13 years plus 25 years to life serves no retributive, deterrent, or rehabilitative purpose or any other proper function of a prison sentence. As such, it is a gratuitous extreme that violates the limits on cruel and unusual punishment imposed by both the United States and California Constitutions.” This claim is belied by the record on appeal. Appellant was born in 1973 and his criminal history began with a juvenile contact for petty theft when he was 14 years of age. On December 3, 1987 and January 8, 1988, appellant was arrested for felony burglary and made a ward of the juvenile court in Solano County. In February and May 1989, appellant was arrested for misdemeanor receiving stolen property. In June of that year, appellant was arrested for felony burglary and sent to the Boy’s Ranch for nine months. In July 1990, appellant was involved in an attempted burglary and was continued as a ward of the juvenile court. In November 1990, appellant was arrested for felony vehicular theft and resentenced to the Boy’s Ranch. In February 1991, appellant escaped from Boy’s Ranch and was sentenced to 18 months in county jail.
Appellant’s adult criminal history began in January 1992, when Richmond police arrested him for misdemeanor vehicular theft. He was convicted and sentenced to 365 days in county jail. In January and September 1993, appellant was arrested for separate incidents of first degree burglary. He was ultimately convicted of four separate counts and sentenced to nine years in state prison. While incarcerated in state prison, appellant was arrested for possession of controlled substances and his prison commitment was extended. In December 2001, appellant was arrested for felony burglary and sentenced to two years in state prison. In October 2003, appellant was arrested for felony petty theft and again sentenced to two years in state prison. Appellant’s record as an adult reflected parole violations on October 28, 2003, January 11, 2005, and June 13, 2006.
Appellant’s case is well within the parameters set by Ewing and Andrade. Appellant had prior strike convictions, an extensive criminal background, and numerous periods of incarceration in juvenile facilities, county jails, and state prison. (See Andrade, supra, 538 U.S. at pp. 66-67; Ewing, supra, 538 U.S. at pp. 17-20, 28.) Appellant’s third-strike sentence was not grossly disproportionate to the crime of second degree robbery. In fact, appellant’s substantive offense was far more serious than the theft of golf clubs underlying Ewing or the theft of videotapes underlying Andrade. As the Supreme Court observed in Ewing, appellant’s sentence was fully “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, supra, 538 U.S. at pp. 29-30.)
B. State Claim
Article I, section 17 of the California Constitution independently provides: “Cruel or unusual punishment may not be inflicted or excessive fines imposed.” Punishment is cruel and unusual if it is so disproportionate to the crime committed that it shocks the conscience and offends fundamental notions of human dignity. A tripartite test has been established to determine whether a penalty offends the constitutional prohibition against cruel or unusual punishment. First, courts examine the nature of the offense and the offender, with particular regard to the degree of danger both present to society. Second, a comparison is made of the challenged penalty with those imposed in the same jurisdiction for more serious crimes. Third, the challenged penalty is compared with those imposed for the same offense in other jurisdictions. In undertaking this three-part analysis, reviewing courts consider the totality of the circumstances surrounding the commission of the offense. (People v. Sullivan (2007) 151 Cal.App.4th 524, 569.) Defining crime and determining punishment are matters uniquely legislative in nature and rest within the sole discretion of the Legislature. Courts will denounce a punishment as unusual only when the punishment is out of all proportion to the offense and is clearly an extraordinary penalty for a crime of ordinary gravity committed under ordinary circumstances. (People v. Lewis (1993) 21 Cal.App.4th 243, 251.) Whether a punishment is cruel or unusual is a question of law for the appellate court and the underlying disputed facts must be viewed in the light most favorable to the judgment. (People v. Martinez (1999) 76 Cal.App.4th 489, 496.)
Appellant clearly fails the first prong of the tripartite test. Appellant’s record of criminal behavior began in 1987 when he was a teenager. His criminal conduct continued for more than a decade and a half and was interrupted only by periods of confinement. His record reflected numerous serious felonies and he repeatedly re-offended upon release from custody. His current offense entailed the robbery of a female victim with an object the victim perceived to be a firearm. The trial court properly based appellant’s sentence on his current crime, recidivist behavior, and clear threat to public safety.
With respect to the second prong of the tripartite test, appellant submits:
“… For first time offenders, his penalty is exceeded only by a sentence of life without the possibility of parole or death imposed for first-degree murder (Pen. Code, § 190, subd. (a)), while it is substantially greater than the penalties for far more serious or violent felonies (Pen. Code, § 667.5, subd. (c)) such as second degree murder, punishable by 15 years to life (Pen. Code, §§ 189; 190, subd. (a)), voluntary manslaughter, punishable by three, six, or eleven years (Pen. Code, §§ 192, subd. (a); 193, subd. (a)), mayhem, punishable by two, four, or eight years (Pen. Code, § 204), kidnapping, punishable by three, five, or eight years (Pen. Code, §§ 207; 208), first degree robbery, punishable by three, six, or nine years (Pen. Code, §§ 211; 213, subd. (a)(1)(A)), rape, punishable by three, six, or eight years (Pen. Code, §§ 261; 264, subd. (a)), oral copulation with a person under 14 years of age and more than 10 years younger or by force or violence, punishable by three, six, or eight years (Pen. Code, § 288a, subd. (c)), and lewd acts on a child under the age of 14 years, punishable by three, six, or eight years (Pen. Code, § 288, subd. (a)), to name a few.
“Because appellant must serve a minimum of 85% of 13 years, and then start serving 25 years in prison ... his sentence is almost three times as severe as most of the offenses listed above, and 13 years longer than that required for first-degree murder.”
Appellant’s contention must be rejected. This step in the tripartite process is inapposite to three strikes sentencing. That is because it is a defendant’s recidivism, in combination with current crimes, that places him or her under the three strikes law. The Legislature may constitutionally enact statutes imposing more severe punishment for habitual criminals. Thus, it is illogical to compare appellant’s punishment for his “offense”—which includes his recidivist behavior—to the punishment of others who have committed more serious crimes but have not qualified as repeat felons. (People v. Romero (2002) 99 Cal.App.4th 1418, 1433, citing People v. Ayon (1996) 46 Cal.App.4th 385, 400, disapproved on another point in People v. Deloza (1998) 18 Cal.4th 585, 600, fn. 10.)
The third prong of the tripartite process is interjurisdictional comparison, i.e., a comparison of the challenged penalty with the punishments prescribed for the same offense in other jurisdictions having an identical or similar constitutional provision. (People v. Meeks (2004) 123 Cal.App.4th 695, 709.) Appellant submits the “three strikes” laws in other states are drafted more narrowly than that in California and generally target serious violent offenders. Thus, according to appellant, his sentence constituted cruel and unusual punishment when subjected to interjurisdictional analysis. The fact that California’s punishment scheme is among the most extreme does not lead to the conclusion that it is unconstitutionally cruel or unusual. California is not required to “‘march in lockstep’” with other states in formulating its Penal Code. Nor is California constitutionally required to conform its Penal Code to that of a sister state with the lowest penalties. Otherwise, California could never take the toughest stance against recidivists. (People v. Romero, supra, 99 Cal.App.4th at p. 1433, citing People v. Martinez (1999) 71 Cal.App.4th 1502, 1516.)
Appellant has failed to show that his punishment offends fundamental notions of human dignity or shocks the conscience. Therefore, his sentence does not violate the prohibition against cruel or unusual punishment as set forth in the California Constitution. (See People v. Romero, supra, 99 Cal.App.4th at pp. 1431-1433.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: DAWSON, J., HILL, J.