Opinion
E066628
08-09-2018
THE PEOPLE, Plaintiff and Respondent, v. KASEY TRAVON ROBINSON, Defendant and Appellant.
Elizabeth Garfinkle, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Michael Pulos, and Kristen Ramirez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. INF1400813) OPINION APPEAL from the Superior Court of Riverside County. Richard A. Erwood, Judge. Affirmed with directions. Elizabeth Garfinkle, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Michael Pulos, and Kristen Ramirez, Deputy Attorneys General, for Plaintiff and Respondent.
After hearing evidence Kasey Trayvon Robinson had sex with a 15-year-old girl when he was 24 years old, a jury convicted him of five felony offenses—two counts of oral copulation with a child under the age of 16 (Pen. Code, § 288a, subd. (b)(2), counts 1, 2; unlabeled statutory citations refer to this code); one count of sexual penetration with a child under the age of 16 (§ 289, subd. (i), count 3); and two counts of unlawful sexual intercourse with a child under the age of 16 (§261.5, subd. (d), counts 4, 5). The trial court found he suffered two prior strikes and one prison prior conviction, denied his Romero motion to strike his prior strike convictions, and sentenced him to a total of 51 years to life in state prison.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
The court imposed consecutive terms of 25 years to life for each of the sexual intercourse convictions (counts 4, 5) plus a consecutive one-year term for the prison prior. It also imposed terms of 25 years to life for each of the remaining three counts, but stayed those sentences under section 654.
Robinson raises several challenges on appeal. He argues the trial court erred by (1) denying his motion for mistrial based on the admission of evidence regarding the victim's (Jane Doe) lack of consent because consent was not an element of the charged crimes; (2) admitting Doe's out-of-court statements about the incident under the "fresh complaint" doctrine; (3) instructing the jury with CALCRIM No. 1190 because it prejudicially refers to the charged crimes as "sexual assaults"; (4) denying his Romero motion; (5) imposing consecutive as opposed to concurrent sentences for the two counts of sexual intercourse; and (6) miscalculating his presentence custody credits. He also argues the prosecution committed misconduct in various regards and his sentence of 51 years to life constitutes cruel and unusual punishment. Except for the issue of custody credits, we conclude the challenges lack merit. We will therefore affirm the judgment with directions to the trial court to modify the abstract of judgment to reflect the correct amount of presentence credits.
I
FACTUAL BACKGROUND
A. Prosecution's Evidence
On March 20, 2014, Doe's friend C.D. asked her to hang out. C.D. (then 18 years old) picked up Doe around 1:00 or 2:00 p.m. C.D. was accompanied by Robinson (then 24 years old) and his brother. They drove to a liquor store where Robinson and his brother bought alcohol and cigarettes, then headed to a motel in Palm Springs. C.D. testified that the issue of Doe's age came up during the drive. She said when Robinson and his brother learned Doe was "14 or 15," they both agreed she was really young and didn't "look her age."
In the motel room, all four hung out and drank alcohol for several hours. Around 7:00 p.m., C.D. left because she had a babysitting job. She said she never saw Doe and Robinson kiss or make any kind of sexual contact while she was with them.
Doe said when she got into the car the group asked her how old she was. When she told them she was 15 years old they acted surprised her parents would allow her to hang out with them. Doe also testified that, before heading to the motel, the group made a pit stop at C.D.'s house to get a set of clothes for Doe to change into. She recalled, "one of the [guys] wanted me to take off my jacket because it said my middle school on it."
Doe said she drank some alcohol but not to the point of intoxication, because she could tell the guys wanted to get her drunk and she wanted to keep her wits about her. She said she asked C.D. if she could leave with her, but C.D. said no because she had to babysit. Robinson's brother departed shortly after C.D., leaving Doe alone in the room with Robinson.
At that point, Robinson began making sexual advances on Doe. He put his fingers inside her vagina, licked her vagina, then had sex with her. With each act, Doe told Robinson she did not want him to do what he was doing. After it was over, possibly around 1:00 a.m., Doe left the motel room. When her mother did not answer her phone call and a friend she texted was unable to pick her up, Doe decided to try walking home even though the distance was far. She got scared, however, when a man outside the motel offered to give her a ride. At that point, Robinson came out of the room and told her to come inside because it wasn't safe. He promised not to do anything else to her, and she believed him and returned to the room. The room had two beds, so she got into one by herself and went to sleep.
When she woke in the morning, Robinson had slipped into her bed and was again making sexual advances. She again told him she did not want to do anything with him, but he ignored her and proceeded to have sex with her and then put his penis in her mouth. When Robinson finished, sometime around noon, Doe left the room again. She encountered a woman outside the motel and told her what had just happened. The woman took her to a nearby sober living facility, where she was able to report what had happened to the manager. At trial, the manager testified she remembered noticing Doe outside of the facility around 11:00 a.m., appearing distraught and "needing help." She said Doe "looked like a real young girl. She didn't seem to be any more than 13, 14 years old. . . . And she was out on her own; that concerned me." She said Doe told her she had been at a party and someone had "harmed her physically, sexually." The manager contacted Doe's mother and they reported the incident to the police.
As the police were interviewing Doe, Robinson sent a text message to her mother's phone from Doe's phone, which she had left behind at the motel. The police told her to respond to the text and arrange a pretextual meeting under the guise of getting her phone back. When Robinson arrived to meet with Doe, police arrested him.
During his police interview, Robinson initially denied doing anything sexual with Doe. He said Doe had shared some of her personal hardships with him and as a result he felt like a "big brother" to her. He said they had slept in separate beds because Doe "felt uncomfortable" sleeping in the same bed. Eventually, Robinson said he and Doe had kissed and engaged in foreplay. However, when the interviewing officer told him DNA evidence could prove certain sexual acts had occurred, he admitted he and Doe had sex and engaged in oral copulation. Robinson asked if he was being accused of rape. He said he had worn a condom and thrown it away afterward. The officer asked Robinson if he knew Doe was under 18 years old, and Robinson said he believed she was over 18 because both Doe and C.D. had said she was. The officer commented on how young Doe appeared, and Robinson agreed she looked younger than 18. Robinson called Doe a "young girl" and "a pretty girl, a young fresh start."
B. The Defense and Verdict
Robinson did not testify at trial and presented no witnesses on his behalf. During closing statements, defense counsel argued Robinson actually and reasonably believed Doe was an adult, as a defense to the five charged offenses.
The jury found Robinson guilty of each of the offenses, and he timely appealed.
II
DISCUSSION
A. The Court Properly Denied Robinson's Motion for Mistrial
After the prosecutor's closing argument, Robinson moved for a mistrial on the ground the prosecutor had elicited prejudicial testimony from Doe that she did not want to engage in the sexual acts and then highlighted that testimony during closing argument. The court denied the motion. Robinson argues this was error because the prosecutor's conduct violated a court order and prejudicially focused the case on lack of consent when it was not an element of any of the charged crimes. We conclude the court's ruling was proper. The prosecutor's conduct did not violate a court order and evidence that Doe did not want to engage in any sexual activity with Robinson and had told him so was relevant to rebut his defense that he actually and reasonably believed Doe was an adult.
1. Additional factual background
Before trial, the prosecutor sought to introduce evidence that during the course of the afternoon, before Robinson came on to Doe, he told her he dealt drugs, typically carried a gun or a knife, belonged to Pyru Bloods (a Los Angeles-based gang), and had been to prison for six years for shooting someone in the face. The prosecutor argued the evidence would tend to show Doe was afraid of Robinson and help explain why she didn't try to fight him off and why she went back into the motel room after the first round of assaults. The court concluded the evidence would confuse the jury into "think[ing] that this is a forcible type of situation" when really the only issue is the age difference. As a result, the court excluded any "statements that [Robinson] made about his supposed record or past criminal activity."
During Doe's direct examination, the prosecutor asked her whether she had wanted to engage in any of the sexual activities with Robinson and Doe said "No." The prosecutor asked whether Doe had made that known to Robinson and she responded, "Yes." During closing argument, the prosecutor argued that while lack of consent was not an element in any of the crimes, it was relevant to assessing Robinson's lack-of-knowledge defense. The prosecutor stated, "For each one of these counts, all you have to find is that the victim was under the age of 16 when the act occurred; the defendant was over the age of 21; and that the specific act actually took place. That's all you need to find. [¶] So it doesn't matter whether [Doe] bit, kicked, punched, said no to [him], or if she was completely complicit, because it's not a defense that the other person may have consented to the act." The prosecutor argued the "primary issue" and the "crux of this whole case" was whether Robinson actually and reasonably believed Doe was 18 years old or older.
The prosecutor argued the following factors demonstrated no reasonable person could believe Doe was 18 years old: (1) C.D. and Doe had told Robinson Doe was under age; (2) a photograph of Doe at the time of the incident clearly depicted a young girl—"[Doe] looks 13 or 14 years old. Look at her hands. Look at her nails. Go back and look at her hair, her face, her arms, her clothing"; (3) the group wanted Doe to change out of her middle school clothes; and (4) Doe was not comfortable sleeping in the same bed with Robinson. On this last point, the prosecutor argued, "And she told [Robinson] that she didn't want to have sex with him. All of that kind of going along [is] consistent with the youth, the immaturity, the physical appearance of this young female." The prosecutor added, "[Doe] did not want to have sex with [Robinson]. At least, in part, as she described she didn't want it because she's—what? She's 15 years old, and she didn't want it."
At the close of her argument, defense counsel sought a mistrial, arguing her focus on consent violated the court's prior ruling "not to talk about consent and . . . not to talk about force." The prosecutor responded consent was relevant to Robinson's defense he actually and reasonably believed Doe was an adult. She argued whether a victim engages in sexual activity willingly and consensually is a factor in determining how old or mature the victim appeared. "[I]t would have presented the victim in a much different light had she, if she was 15 years old [and] engaging in consensual acts with [Robinson], so that he may have actually believed that she was older than what she was, and a reasonable person observing this conduct would have reasonably said she presented older than what she was." The court denied the motion, noting the jury had been properly instructed the crimes were statutory, not forcible, sexual assaults.
2. Analysis
According to Robinson, the court abused its discretion because Doe's testimony on lack of consent and the prosecutor's argument violated the court's prior evidentiary ruling and "confus[ed] the jury as to the actual inquiry at hand"—whether Robinson knowingly or recklessly had sex with a minor.
"'A trial court should grant a mistrial only when [the defendant's] chances of receiving a fair trial have been irreparably damaged, and we use the deferential abuse of discretion standard to review a trial court ruling denying a mistrial.'" (People v. Clark (2011) 52 Cal.4th 856, 990.) We conclude there was no abuse of discretion here.
Conceding abuse of discretion is the "standard lens for mistrial motions," Robinson urges us to follow People v. Albarran (2007) 149 Cal.App.4th 214 and apply a de novo standard of review. First of all, the standard of review for mistrial motions is well established and we will not depart from it. Second, Albarran involved the denial of a motion for new trial, for which the court noted the standard of review had not been clearly established. (Id. at p. 224, fn. 7.) Though the Albarran court agreed with the cases concluding de novo review is appropriate, it ended up applying the abuse of discretion standard because the new trial motion was based on the admission of "allegedly prejudicial evidence." (Id. at p. 225 [to succeed on his motion for new trial the defendant had to "establish an abuse of discretion and prejudice"].) In any event, an independent review would not help Robinson as we would uphold the trial court's ruling even under that standard. --------
First, the prosecutor did not violate the court's previous evidentiary ruling, which was limited to statements Robinson may have made about his criminal past. The court never ruled the prosecution could not ask Doe whether or not she wanted to engage in sexual activity with Robinson. Second, Doe's lack of consent was relevant to rebut the defense's sole theory at trial. Robinson did not deny any of the charged acts had occurred—his entire defense rested on the premise he actually and reasonably believed Doe was an adult. To demonstrate Doe's youth, the prosecutor argued she was easily pressured and that such acquiescence is common in children. Having put the issue of Doe's maturity in play, Robinson cannot fetter the prosecution's ability to argue she was physically and emotionally immature.
And, contrary to Robinson's assertions, there was no likelihood the jury would have been confused about the role lack of consent played in the trial. The jury was properly instructed on the elements of the charged crimes and the prosecutor made clear, at multiple points in her argument, that consent was relevant only to rebut Robinson's defense. Defense counsel reiterated the point, telling the jury, "You'll find that there will be no element of force or fear or consent anywhere in this. It's simply about age. And so we have to talk about age and determine whether or not the age issue is so obvious."
Neither was there a likelihood the evidence on consent improperly prejudiced the jurors against him or enflamed their passions. The prosecutor kept the questioning on consent extremely brief. Much more harmful to Robinson than Doe telling the jury she didn't want to have sex with him were his own statements to the police. Robinson said Doe didn't want to sleep in the same bed with him or do anything sexual and he viewed her as a younger sibling. Making matters worse, he ultimately admitted engaging in the alleged sex acts with Doe even though he agreed she looked young. Under these circumstances, the trial court properly denied the motion.
B. The Court Properly Admitted Doe's Extrajudicial Complaint
Next, Robinson argues the trial court erred in admitting the sober living facility manager's testimony recounting Doe's report of the incident. He argues the testimony was inadmissible hearsay and the court's conclusion the testimony was admissible under the "fresh complaint" doctrine was incorrect. We disagree.
Proof of an extrajudicial complaint, made by the victim of a sexual offense, disclosing the alleged assault, is admissible "for a limited, nonhearsay purpose—namely, to establish the fact of, and the circumstances surrounding, the victim's disclosure of the assault to others—whenever the fact that the disclosure was made and the circumstances under which it was made are relevant to the trier of fact's determination as to whether the offense occurred." (People v. Brown (1994) 8 Cal.4th 746, 750.) This rule is sometimes called the "fresh complaint doctrine," though the name is not particularly apt because the out-of-court statement need not be "fresh" as that word is commonly understood or take the form of a "complaint" (as in a volunteered accusation). (Ibid. ["the timing of a complaint (e.g., whether it was made promptly after the incident or, rather, at a later date) and the circumstances under which it was made (e.g., whether it was volunteered spontaneously or, instead, was made only in response to the inquiry of another person) are not necessarily determinative of the admissibility of evidence of the complaint. Thus, the 'freshness' of a complaint, and the 'volunteered' nature of the complaint, should not be viewed as essential prerequisites to the admissibility of such evidence"].) The extrajudicial complaint of the victim of a sex crime "may [be] consider[ed] . . . 'for the purpose of corroborating the victim's testimony.'" (People v. Manning (2008) 165 Cal.App.4th 870, 880.)
Here, corroborating Doe's testimony was important for the prosecution because there was a credibility contest between Doe and Robinson on the issue of her age. Doe said she told him she was 15 years old and Robinson said she told him she was over 18 years old. At trial, the sober living facility manager said she saw Doe outside the facility around 11:00 a.m. and Doe had reported she had been sexually assaulted by someone at a party. This corroborated Doe's testimony that Robinson had assaulted her after she had been partying or hanging out with him and his friends in a motel room and that she had left the room the following day around noon and reported the abuse to someone at a women's shelter. Though the manager's testimony did not corroborate Doe's testimony on the issue of age in particular, her testimony did corroborate certain aspects of Doe's version of the event and therefore had the tendency to bolster Doe's credibility generally.
In any event, even if it were error to admit the testimony as an extrajudicial complaint, the error was harmless. Robinson argues the testimony tended to make him appear to be "a more-violent criminal than charged." We disagree. The manager said nothing about violence. Instead, she said Doe had reported being "harmed . . . sexually," which is entirely consistent with, or no more inflammatory than, the charged crimes. Robinson was charged with violating section 288a (oral copulation with a minor under age 16), section 289 (sexual penetration of a minor under age 16), and section 261.5 (sexual intercourse with a minor under age 16). The Penal Code labels each of these offenses a "sexual assault." (§ 11165.1, subd. (a) [enacted as part of the Child Abuse and Neglect Reporting Act and defining "sexual assault" as "conduct in violation of . . . subdivision (d) of Section 261.5 (statutory rape), . . . Section 288a (oral copulation), Section 289 (sexual penetration)"].) The fact the offenses do not require the use of physical force or violence does not make them any less assaultive or render their victims any less violated or harmed.
The only issue for the jury was whether it found Robinson's defense believable, and on this point the evidence was overwhelmingly in Doe's favor. Doe said she told Robinson she was 15 years old and C.D. corroborated this point, telling the jury the group knew she was "14 or 15" because they had talked about it before reaching the motel. In addition, both the police officer and the facility manager testified that Doe looked very young and the prosecutor showed the jury a photo of Doe near the time of the incident. It was Robinson's word against this evidence and he damaged his defense by agreeing with the police officer that Doe looked younger than 18 years old. In this setting, the facility manager's testimony had little if any tendency to improperly sway the jury against Robinson. We conclude its admission was not reversible error.
C. The Court's Provision of CALCRIM No. 1190 Was Proper
During discussion on instructions, the trial court stated its intention to use CALCRIM No. 1190, which states, "Conviction of a sexual assault may be based on the testimony of a complaining witness alone." Robinson did not object. On appeal, he claims the instruction was prejudicial and requires reversal because it refers to a sexual "assault" when he was charged with only "non-assaultive sexual offenses."
This argument, like his challenge to Doe's extrajudicial complaint, is premised on his assumption a sexual assault necessarily connotes the use of force or violence. As just explained, that is not the case. The Penal Code defines the crimes Robinson was charged with as sexual assaults, but even without the benefit of that statutory definition we would reach the same conclusion using our common sense understanding of sexual penetration, sexual intercourse, and oral copulation with a minor under age 16. That those acts do not require force does not mean they do not constitute assaultive, predatory conduct. CALCRIM No. 1190 is a standard instruction in cases of sexual offenses. "[T]rials of sex crimes, which often are a credibility contest between the accused and the accuser, have 'special features which make such an instruction on lack of corroboration most proper.'" (People v. Gammage (1992) 2 Cal.4th 693, 702.)
Robinson's fear the instruction's use of the word assault "permitted [the jury] to treat [him] as a violent assailant" finds no support in the record. The jury was properly instructed on the elements of the charged offenses and no one testified Robinson had been forceful or violent with Doe. Because we can expect a jury to understand not all sexual assaults are violent, we find nothing prejudicial about the use of the word "assault" in CALCRIM No. 1190. The instruction was proper.
D. The Court Properly Imposed Consecutive Sentences
Robinson argues the court abused its discretion in sentencing him because it did not realize it could sentence the two counts of sexual intercourse concurrently. To the contrary, the court properly concluded section 667, subdivision (c)(6) (the "Three Strikes" law mandatory-consecutive-sentencing provision) required it to impose consecutive sentences.
Where, as here, a defendant has suffered a prior strike conviction, the three strikes law mandatory-consecutive-sentencing provision requires consecutive sentences if the defendant was convicted in the present case of "more than one felony count not committed on the same occasion, and not arising from the same set of operative facts." (§ 667, subd. (c)(6).) The corollary of this provision is "if two current felonies either were committed on the same occasion or do arise from the same set of operative facts, the three strikes law does not mandate consecutive sentencing; the trial court retains discretion to sentence either concurrently or consecutively." (People v. Danowski (1999) 74 Cal.App.4th 815, 821.) In other words, to warrant mandatory consecutive sentencing, the two crimes must take place on different occasions and arise from different facts. (See People v. Lawrence (2000) 24 Cal.4th 219, 233.)
The California Supreme Court has explained two crimes are committed on different "occasions" when they are "not committed within close temporal and spatial proximity of one another." (People v. Lawrence, supra, 24 Cal.4th at p. 233.) Two crimes arise out of different "operative facts" when there is no crossover between the acts that satisfy the elements of one offense and the acts that satisfy the elements of the other offense. (Ibid.) "For example, when a robbery is charged, its continuous nature, its elements and the facts used to support those elements are the 'operative facts' underlying the commission of that crime. If another offense is committed while the facts underlying that robbery are unfolding, it will necessarily arise from the same set of operative facts as the original robbery. However, where the elements of the original crime have been satisfied, any crime subsequently committed will not arise from the same set of operative facts underlying the completed crime." (Id. at p. 232, quoting People v. Durant (1999) 68 Cal.App.4th 1393, 1405-1406.) When "each offense [is] separated by a sufficient amount of time in which defendant could consider the consequences of continuing to commit new criminal acts," the offenses are "not committed on the same occasion and d[o] not arise from the same set of operative facts." (People v. Jenkins (2001) 86 Cal.App.4th 699, 707 (Jenkins).)
To illustrate, in Jenkins the court concluded the three strikes mandatory-consecutive-sentencing provision applied to an assault and attempted murder the defendant committed in the same apartment within a few minutes of each other. The crimes arose from different operative facts because the defendant "had completed his assault on [victim 1] well before he stabbed [victim 2]." (Jenkins, supra, 86 Cal.App.4th at p. 707.) The crimes occurred on different occasions because they were "separated both in time and location"—the defendant's "criminal conduct was interrupted for a significant time while he went downstairs, looked for a weapon, located a weapon, armed himself with a knife, and then pushed the [apartment] manager out of the way before proceeding back up the stairs, where he stabbed [victim 2]." (Ibid.) Significant to the court's conclusion was that the defendant had time between each offense to "consider the consequences of continuing to commit new criminal acts." (Ibid.)
Robinson argues his two counts of sexual intercourse occurred on the same occasion and under the same set of operative facts, and as a result the trial court didn't realize it could impose concurrent sentences. He is incorrect. The record shows the trial court correctly determined the mandatory-consecutive-sentencing provision applied, and therefore it had no discretion to impose concurrent sentences.
At the sentencing hearing, the court stated the two counts of intercourse "occurred on different occasions" and arose from "two distinct incidents." As a result, it concluded "Count 4 and Count 5, by law, have to run consecutive because they occurred at different occasions." The court was right. The two acts of sexual intercourse occurred on different occasions as they were temporally and spatially removed. Doe testified that after Robinson had sex with her late in the evening on March 20, 2014, she left the motel room then returned and slept in the other of the room's two beds. The following morning—several hours later—Robinson moved into Doe's bed and had sex with her a second time. (Cf. People v. Jeffries (2000) 83 Cal.App.4th 15, 26 [where multiple counts of molestation occurred in a motel room during a "session that lasted 'all night,'" the three strikes mandatory-consecutive-sentencing provision applied to the additional count of oral copulation that "followed, at an unspecified interval"].) Robinson had ample time after the first assault to consider the consequences of subjecting Doe to more sexual advances. And, having decided to commit additional crimes, he had to pursue Doe into the bed where she had moved to avoid further contact. Also, the two acts of sexual intercourse clearly arose from different sets of operative facts. All the elements of the first count had been completed long before Robinson had sex with Doe a second time. Under these facts, the three strikes law requires consecutive sentences.
E. The Prosecutor Did Not Commit Misconduct
'"The applicable federal and state standards regarding prosecutorial misconduct are well established. "'A prosecutor's . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct "so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process."'" Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves '""the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury."'"'" (People v. Hill (1998) 17 Cal.4th 800, 819, overruled on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13 (Hill), citations omitted.) Robinson asserts the prosecutor committed misconduct on myriad occasions. We take each of the challenged prosecutorial statements in turn, but conclude none rises to the level of misconduct or reversible error.
1. Lack of Consent
Robinson renews his challenge to the evidence about Doe's lack of consent in the form of a claim of prosecutorial misconduct. We reject the claim because, as we concluded above, the evidence did not violate the court's prior ruling and was relevant to rebut his lack-of-knowledge defense.
2. Extrajudicial Complaint
Robinson contends the prosecutor committed misconduct by citing "effect on the listener" as a basis for admitting Doe's extrajudicial complaint to the facility manager. He argues that because "effect on the listener" clearly did not apply to the testimony, the prosecutor mischaracterized the law and misled the court into allowing otherwise inadmissible evidence to come into trial. We disagree.
First of all, as we explained above, the extrajudicial complaint was admissible. And second, the prosecutor did not mislead the court, she simply misspoke. It is clear from the record that her proffered basis for admitting the testimony was the "fresh complaint" (or extrajudicial complaint) doctrine, not effect on the listener. In her trial brief, the prosecutor sought to introduce the testimony under the fresh complaint doctrine. During the pretrial hearing, defense counsel submitted on the prosecutor's request to introduce the manager's testimony "as part of the fresh-complaint doctrine," and the trial court ruled the testimony was admissible under that doctrine. During trial, when defense counsel objected to the manager's testimony, the prosecutor responded, "This is the fresh complaint, your Honor. So it's the effect on the listener." A few moments later, when defense counsel renewed his objection, the prosecutor responded, "Fresh complaint, your Honor." The prosecutor's reference to the effect on the listener doctrine was obviously inadvertent error and cannot serve as the basis for a claim of misconduct.
3. Reference to Mutual Oral Copulation
Robinson argues the prosecution committed misconduct during closing argument by saying Robinson had told the interviewing officer that "he [and Doe] had engaged in the '69' position," a colloquial term for simultaneous mutual oral copulation between two people. Robinson argued the prosecutor's statements were "highly prejudicial" because she referenced "facts not in evidence." Again, we disagree. The prosecutor's interpretation of the officer's testimony was entirely reasonable.
During his examination, the police officer who interviewed Robinson described how Robinson had initially denied any sexual contact with Doe but ultimately admitted to the acts: "Well, initially [Robinson told me] that there was some kissing and flirting. It evolved slowly to kissing, flirting, and foreplay. Then it evolved again to kissing, flirting, foreplay, and sexual intercourse between the two of them. And then it finally evolved into all of those things with the addition of oral copulation by both parties." The prosecutor interpreted the phrase "oral copulation by both parties" to mean simultaneous oral copulation by both parties. During closing argument she said: "So all of a sudden the platonic relationship, me treating her like a brother, her being uncomfortable with me and needing to sleep in two separate beds—that's gone. Instead what we have is now we're engaging in consensual sex. [¶] And when [the officer] pushes him to really be honest about what happened, then we just go further and he says 'Yes. Okay. So we engaged in this consensual sex and then, on top of it, you know what 69 is? Mutual oral copulation. We did that.'" Later, when arguing there was sufficient proof of two separate counts of oral copulation, she said: "[Robinson's] position is that—and this is in the fourth version of events that he tells to [the officer]—is that he admits the 69 position with Doe. So he's trying to indicate—and I don't mean to be particularly vulgar, but this is just the law and the way that these acts occurred. At the time the sex is completed in the morning, they're also engaging in the 69 position. So that at the time that he's orally copulating Doe, the victim, she's also performing fellatio on him or orally copulating him." The prosecutor noted Doe had described the two instances of oral copulation differently. "Is that the version of events as described by Doe? No. What does Doe say? Doe said that it occurred one time during the evening . . . Then she states that again, in the morning, . . . he takes his penis out of her vagina and puts it in her face and wanted for her to suck him, and so she does."
Robinson theorizes the prosecutor's reference to simultaneous mutual oral copulation came from the transcript of the preliminary hearing, where the officer testified Robinson said he did the "69 position" with Doe. He argues the prosecutor committed misconduct by quoting an extra-record document to the jury. We cannot agree. By our read of the record, the prosecutor's reference to simultaneous mutual oral copulation was a reasonable and understandable interpretation of the officer's testimony at trial that Robinson admitted to engaging in various sexual acts with Doe, including "oral copulation by both parties." It is entirely reasonable, and certainly nowhere near nefarious, to interpret that phrase to mean the mutual oral copulation occurred at the same time.
In any event, the prosecutor's reference to the 69 position was not prejudicial. Contrary to Robinson's hyperbolic claim that the reference "le[ft] an inerasable, inflammatory image in the jury's minds," mutual oral copulation with a minor is no more egregious when done simultaneously than on two separate occasions. If anything, Doe's version of the oral copulation is more inflammatory because Robinson had several hours to reflect on his behavior before subjecting her to another round of sexual assault. We also note the court instructed the jury before closing arguments that the attorneys' arguments are not evidence, and the prosecutor reiterated that point at the beginning of her statement. We assume the jury understood and followed the instruction. (People v. Smith (2007) 40 Cal.4th 483, 517 ["The crucial assumption underlying our constitutional system of trial by jury is that jurors generally understand and faithfully follow instructions"].)
"Prosecutors have wide latitude to discuss and draw inferences from the evidence at trial. [Citation.] Whether the inferences the prosecutor draws are reasonable is for the jury to decide." (People v. Dennis (1998) 17 Cal.4th 468, 522.) "Even inferences based on faulty reasoning from facts in the record are within the bounds of closing argument, for the jury is the ultimate arbiter of the facts." (People v. Younger (2000) 84 Cal.App.4th 1360, 1384.) Here, the prosecutor's interpretation of the officer's testimony was far from faulty. But more importantly, the jury heard the officer's actual testimony and was free to interpret his words as the prosecutor had or to conclude he was instead referring to two instances of oral copulation that were not simultaneous.
4. Statements Regarding Sentencing
Robinson argues the prosecutor committed misconduct by misstating the law on two occasions during his sentencing hearing. These claims lack merit.
First, he argues the prosecutor misled the court as to the available punishment for the two counts of sexual intercourse. During her opposition of Robinson's Romero motion, the prosecutor argued that none of Robinson's current convictions were for "wobblers." The prosecutor was wrong—section 261.5, subdivision (d) provides the offense is punishable as a felony or a misdemeanor. While incorrect, however, the comment was not reprehensible. (Hill, supra, 17 Cal.4th at p. 819.) More importantly, there is no indication it had any effect on the proceedings. "Error may not be presumed from a silent record. [Citation.] '"[A] trial court is presumed to have been aware of and followed the applicable law."'" (People v. Brown (2007) 147 Cal.App.4th 1213, 1229.) Not only do we presume the court was aware of the punishment contained in section 261.5, subdivision (d), but also we know from the transcript of the sentencing hearing that the trial court read the probation report and that document correctly stated counts 4 and 5 were wobblers. Robinson has not shown the prosecutor's comment had any effect on his sentence.
Next, Robinson argues the prosecution misstated the three strikes mandatory-consecutive-sentencing provision set forth in section 667, subdivision (c)(6). During the sentencing hearing, the court indicated its belief it had to impose consecutive sentences for counts 4 and 5 under section 667, subdivision (c)(6) because they "occurred on different occasions." The prosecutor agreed, adding "According to Penal Code section 667, subdivision (c), I believe it is Subsection (6) is what the Court was citing to that there is the requirement that consecutive sentencing be imposed when you have the incidents arising from two separate acts. [¶] And here we do have that definite intervention of time, that lapse of time that occurred between the two sexual assaults. So the Court is following the law absolutely as far as that is concerned."
Robinson argues that by characterizing the standard for consecutive sentences as whether the crimes "arise from two separate acts," the prosecutor misled the court from applying the correct standard—different occasions and different operative facts. The prosecutor was not being misleading. She simply used shorthand to refer to the language in section 667, subdivision (c)(6), language she had already quoted in full for the court in her sentencing brief. Having reviewed and upheld the trial court's determination section 667, subdivision (c)(6) applies to counts 4 and 5 (see part II.D, ante), we have no trouble concluding the trial court understood the law and applied the correct test.
F. The Court Properly Denied the Romero Motion
Robinson has two strike convictions on his record stemming from two first degree residential burglaries he committed in 2007 and pled guilty to in 2010. He filed a Romero motion to strike those convictions under section 1385, and the trial court denied his request, concluding he fell within the spirit of the three strikes law because he was either unable or unwilling to refrain from committing serious felonies. Robinson argues it was an abuse of discretion not to strike his prior strikes because they were nonviolent, as were his current crimes. We conclude the court's decision was reasonable.
1. Additional Background
Prior to sentencing, Robinson filed a Romero motion requesting the trial court dismiss his two strike convictions for burglary. He characterized his convictions as "relatively minor," pointing out he was 18 years old and the residences were empty when he broke in. He argued he led a "blameless life" between the burglaries and the current sex offenses, avoiding gang and criminal activity.
The People opposed the motion, arguing Robinson's record showed the opposite, that he is a career criminal with no desire to reform. The People recounted his criminal history. In 2005, when he was 15 years old, the juvenile court found he violated sections 487, subdivision (c) (grand theft from a person) and 496, subdivision (a) (receiving stolen property) and placed him on felony probation. Less than a year later, the juvenile court found he violated section 422 (making criminal threats). About a year after that, in late 2007, he was charged with six first degree burglaries in three separate cases. At his arraignment in one of the cases, the court found sufficient evidence to hold him over on four felony residential burglary charges, a felony receiving stolen property charge, and two misdemeanors. Robinson then failed to appear for a court hearing and law enforcement did not find and arrest him for another two years. Ultimately, he pled guilty to two felony first degree burglaries and one second degree burglary and was sentenced to two concurrent six-year terms.
During a custodial interview in 2010, Robinson said he had dropped out of the "Bloods" street gang. He was paroled in 2012 with conditions prohibiting him from contacting members of the Bloods street gang or possessing gang paraphernalia. Two years after his release from prison, he committed the current sex offenses.
According to the probation report, during those two years Robinson suffered two parole violations, one for using methamphetamine and the other for absconding. During the interview for that report, Robinson said he had pled guilty to the two burglary strikes because the district attorney had used the threat of evidence of the several other burglaries as leverage. The probation officer noted Robinson did not deny committing the other burglaries, but explained theft was "a way of life for him, and the only way he could support himself." Robinson also said the property he stole during the burglaries was "not worth very much." He told the probation officer that after he was released from prison in 2012, he got a job as a door-to-door salesperson and tried to live with his mother (a recovered alcoholic), but she was "very judgmental of him, and did not understand his struggles after being released from prison." He said he left his mother's house, "went back to the streets," and "resorted to the lifestyle that he knew, running the streets, and committing thefts in order to provide shelter, food, and clothing for himself." The probation officer noted Robinson "did not take any responsibility for the current offense[s]. He was not remorseful or sympathetic to the victim."
In support of his Romero motion, Robinson submitted a private probation report by retired Probation Officer Milt Sheetz. Sheetz interviewed Robinson in custody on June 7, 2016. Robinson told Sheetz he started associating with gangs and selling drugs at age 14. He said his mother was an alcoholic during most of his childhood, and he never knew his father. He "vehemently denie[d] any culpability" for the current sex offenses. He believed Doe had lied and said the sex was not consensual to avoid getting in trouble for being out with him. He told Sheetz he sold drugs to support himself while he was on parole, but denied committing any thefts or burglaries or associating with gangs.
Sheetz concluded although Doe may have made a poor choice by hanging out with a group of adults, Robinson "took advantage of this fact." In Sheetz's experience, the critical issue for individuals like Robinson who come from broken homes with "alcoholism and no positive father figure," is whether or not they "embrac[e] recovery at the right time in their lives." Sheetz opined Robinson should have taken "advantage of services offered by the Parole Office upon his release from prison" by, for example, "ask[ing] for a drug rehabilitation program and counseling." By failing to do so, Sheetz wrote, Robinson "placed himself in a position to reoffend." While commenting a third strike sentence would be a "tragedy for [Robinson] and for the community" because he may spend his life in prison and "never be in a position to make a change," Sheetz did not recommend the court offer leniency. Instead, he suggested an explanation for Robinson's inability to conform to societal and legal norms—"It is my opinion that due to his family background and long periods of incarceration for much of his life, he has never adjusted to mainstream society."
At the hearing on Robinson's motion, defense counsel argued the current offenses did not warrant a life sentence because the sexual activity was consensual. He also reiterated the point in the motion that the prior strikes were nonviolent. The prosecutor countered that Doe's trial testimony indicated the offenses were not consensual.
The court considered counsels' arguments in the context of Robinson's background, character, and future prospects, and stated it "would be an abuse of discretion to [grant the motion]." The court concluded Robinson fell within the spirit of the three strikes law based on his lengthy criminal history and lack of desire to reform—as evidenced by his lack of rehabilitation efforts and remorse for the current offenses, as well as his refusal to obtain a legitimate job in favor of making a living by committing crimes.
2. Analysis
A trial court may dismiss a prior strike conviction under section 1385 "in furtherance of justice." (§ 1385, subd. (a); Romero, supra, 13 Cal.4th at pp. 529-530.) In considering whether to do so, the trial court "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 (Williams), italics added.) If the court decides to "strik[e] or vacat[e] an allegation or finding, it must set forth its reasons in an order entered on the minutes." (Ibid.) "While a court must explain its reasons for striking a prior . . . , no similar requirement applies when a court declines to strike a prior [citation]. 'The absence of such a requirement merely reflects the legislative presumption that a court acts properly whenever it sentences a defendant in accordance with the three strikes law.' [Citations.] 'Thus, the three strikes law not only establishes a sentencing norm, it carefully circumscribes the trial court's power to depart from this norm and requires the court to explicitly justify its decision to do so. In doing so, the law creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper.'" (In re Large (2007) 41 Cal.4th 538, 550.)
We review the denial of a Romero motion for abuse of discretion. (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 of the law, we shall affirm the trial court's ruling, even if we might have ruled differently in the first instance." (People v. Romero (2002) 99 Cal.App.4th 1418, 1434.) "Because the circumstances must be 'extraordinary . . . 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' [citation], the circumstances where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme must be even more extraordinary." (People v. Carmony (2004) 33 Cal.4th 367, 378.)
Here, the record demonstrates the court considered the evidence relevant to Robinson's background, character, and future prospects, and arrived at a reasonable decision to deny the Romero motion. Robinson has a lengthy criminal record that began at an early age, and he has shown no signs of remorse for his crimes or desire to reform. As he admitted, he began committing crimes and associating with gangs at the young age of 14. Since that time, he has been committing felonies on a regular basis. He burglarized at least two residences and committed several sexual assaults on a young girl.
As Robinson himself admits, he quickly reverted back to a life of crime after his release from prison when holding down a legitimate job and living with his mother proved to be too difficult. In addition, he has never indicated—not to the probation officer and not to Sheetz—that he regrets leading a life of crime or is interested in rehabilitation services. After serving his sentence on his two burglary convictions, he continued to sell drugs, violated parole twice, and committed the current sex offenses, all within the span of two years. What is more, he has never expressed remorse over the current offenses, a fact both of his posttrial interviewers picked up on and found disturbing—and rightly so. Even if he had reasonably believed Doe was over 18 years old, one would expect a person to feel badly in retrospect about having performed multiple sexual acts on a 15-year-old child. Finally, Robinson's future prospects are not positive. His one experience with legitimate employment was short-lived and he quickly went back to dealing drugs (and theft, depending on which posttrial interview you believe) to support himself.
Citing People v. Vargas (2014) 59 Cal.4th 635, 648, Robinson argues the trial court abused its discretion by not striking at least one of his strikes because he served a single combined prison term for both strikes and, as a result, "was given [only] one opportunity to reform upon his release . . . before obtaining the triggering third-strike convictions at issue here." Vargas held it is an abuse of discretion not to strike one of two strikes that are based on the same act—a situation the court noted was rare, such as the case before it where the defendant received a robbery strike and carjacking strike for the single act of taking the victim's car by force. (Id. at p. 640.) There is no authority, however, for the proposition that a court abuses its discretion when it refuses to strike prior convictions based on different acts committed on different days, like Robinson's burglaries.
Indeed, our Supreme Court has made clear courts may refuse to strike prior convictions based on acts committed during a continuous course of conduct, as such offenders are more serious and dangerous than those who commit only a single crime during a course of conduct. (People v. Benson (1998) 18 Cal.4th 24 [upholding refusal to strike either the residential burglary or the assault with an intent to commit murder conviction which were both based on the single incident when defendant broke into the victim's apartment to retrieve his keys and, upon encountering the victim, stabbed her multiple times].) What matters under three strikes sentencing is not the number of times the defendant was released from prison and reoffended, but rather the number of serious or violent felony convictions he or she has suffered. "'[T]he Legislature and the voters through the initiative process clearly intended that each conviction for a serious or violent felony counts as a prior conviction for sentencing purposes under the Three Strikes law, even where the convictions were based upon conduct against a single victim committed at the same time with a single intent, and where pursuant to section 654 the defendant was punished for only a single crime.'" (Benson, at p. 30, italics added.)
We also reject Robinson's argument the court's ruling was erroneous because none of his strikes were violent. Robinson concedes, as he must, that his current sexual offenses as well as his two previous residential burglaries constitute serious felonies and thus qualify as strike convictions under the three strikes law. Nevertheless, he argues the legislative materials discussing the 2012 amendments to the three strikes law indicate the true spirit of the law is to punish violent recidivists. But the section he cites to prove his point detracts from it by stating the amendments were intended to "Restore the Three Strikes law to the public's original understanding by requiring life sentences only when a defendant's current conviction is for a violent or serious crime." (Ballot Pamp., Gen. Elec. (Nov. 6, 2012), Text of Prop. 36, at http://vig.cdn.sos.ca.gov/2012/general/pdf/text-proposed-laws-v2.pdf, italics added.) At its core, Robinson's argument is one for further amending the three strikes law to exclude the crimes he committed and therefore is better made to a lawmaker than a court. As the law stands, serious but nonviolent recidivists fall under the letter and spirit of the three strikes law. (See, e.g., People v. Romero, supra, 99 Cal.App.4th at p. 1434 [upholding sentence of 25 years to life for a felony "nonviolent petty shoplifting offense" and affirming refusal to strike either of the defendant's prior strikes based on the "seriousness" of his criminal background, which consisted of a serious felony, a violent felony, and four misdemeanors].)
Robinson takes issue with some of the evidence the court considered as well as evidence he assumes it did not. He argues the court placed too much emphasis on his lack of legitimate employment and rehabilitation efforts and failed to address the mitigating evidence he came from a troubled home environment. He argues the record does not prove the door-to-door salesperson position was the only legitimate job he ever held nor does it prove any rehabilitation services were actually offered to him. These arguments do not help Robinson on appeal, where our task is simply to determine whether the trial court's denial of his motion was reasonable, even if we might have ruled differently. (People v. Carmony, supra, 33 Cal.4th at p. 378.)
In any event, even if we consider Robinson's unfortunate and disadvantaged upbringing, the lack of violent offenses on his record, and the possibility (based on nothing in the record) he may have had another job at some point in his young life and he was never offered rehabilitation services, we nevertheless find his criminal history and obvious tendency toward recidivism more significant factors in the analysis. Starting at the young age of 14, Robinson committed numerous felonies within the span of a decade. While not violent, his felonies were serious. He has broken into multiple residences and committed five sex offenses on a 15-year-old girl. That no one was home when he entered the homes and things didn't turn violent is likely the product of providence. And while he may not have used physical force on Doe, she testified she told him she did not want him to do the things he did to her. In addition, Robinson has two parole violations on his record and has demonstrated a refusal to submit to the criminal justice system by failing to appear before the court and avoiding prosecution for his burglaries for two years. Where an offender has suffered strike convictions "as part of a long and continuous criminal record" like Robinson's, "the circumstances where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme must be even more extraordinary." (People v. Carmony, supra, 33 Cal.4th at p. 378.) Rather than an extraordinary case, this is a case where a reasonable trial court could have ruled either way on the Romero motion. To deny it was not capricious.
Finally, Robinson argues the court was unaware of its ability to partially grant his Romero motion by striking one or both of his prior strikes as to one of his current convictions for sexual intercourse and not the other. This partial grant procedure was upheld in People v. Garcia (1999) 20 Cal.4th 490 (Garcia), where our high court concluded the trial court did not abuse its discretion when it found the defendant outside the three strikes scheme's spirit "'in part'" and struck a strike from one of his present offenses but not the other. (Id. at p. 503 [trial court struck the defendant's prior strikes from one count of burglary but not the other, resulting in a sentence of 31 years and 4 months to life].) We presume the trial court was aware of Garcia. (People v. Brown, supra, 147 Cal.App.4th at p. 1229 ["remand is unnecessary if the record is silent concerning whether the trial court misunderstood its sentencing discretion [because e]rror may not be presumed from a silent record"].) At the time of sentencing, Garcia had been good law for over 15 years and Robinson cited the case at length in his Romero motion.
Robinson contends the record affirmatively shows otherwise because the court said it had "tried to make the sentence as minimal as possible, but still following the rules." He argues the court could have made his sentence lighter had it simply granted his Romero motion as to one of the counts as the court did in Garcia. We are not persuaded. The court made that comment when considering whether the three strikes mandatory-consecutive-sentencing provision applied to the unlawful sexual intercourse convictions. The comment had nothing to do with the Romero motion, which the court had already heard and denied by that point in the sentencing hearing. All the comment reflects is the court tried to make Robinson's sentence as lenient as possible while still obeying the mandates of the three strikes law. The court understandably felt compelled by the three strikes law to impose indeterminate 25-year sentences and run them consecutively, because that is what the plain language of that law requires. Had Robinson's criminal history been briefer or less serious, perhaps the court would have deemed it reasonable to exercise its authority under section 1385.
G. The Sentence is Not Cruel and Unusual
Robinson argues his sentence of 51 years to life constitutes cruel and unusual punishment in violation of the federal and state constitutions. We acknowledge Robinson's sentence for five counts of statutory sexual assault is lengthy, but this is a product of our state's recidivist statute which has withstood constitutional scrutiny. (Ewing v. California (2003) 538 U.S. 11, 21.) As a result, we cannot say the sentence constitutes cruel and unusual punishment.
A punishment violates the federal Constitution if it is grossly disproportionate to the severity of the crime and violates the California Constitution if it "'shocks the conscience and offends fundamental notions of human dignity.'" (U.S. Const., 8th Amend.; Graham v. Florida (2010) 560 U.S. 48, 59-60; People v. Dillon (1983) 34 Cal.3d 441, 478.) "The touchstone in each is gross disproportionality." (People v. Palafox (2014) 231 Cal.App.4th 68, 82.) In assessing whether a sentence runs afoul of these principles, we review the nature of the offense and the offender, and measure the punishment against those prescribed for more serious crimes in our states and for the same crime in other states. (In re Lynch (1972) 8 Cal.3d 410, 425-427.) A defendant "must overcome a 'considerable burden' to show the sentence is disproportionate to his level of culpability," and as a result disproportionality findings "have occurred with exquisite rarity in the case law." (People v. Em (2009) 171 Cal.App.4th 964, 972; see also Rummel v. Estelle (1980) 445 U.S. 263, 272 ["Outside the context of capital punishment, successful challenges to the proportionality of particular sentences have been exceedingly rare"].)
Robinson cannot overcome that burden here. He was convicted of sexually assaulting a 15-year-old girl despite her telling him her age, telling him no, and trying to leave. The reason he received sentences of 25 years to life for those assaults is due to his status as a recidivist with two prior strikes on his record. (See § 677, subd. (e) [mandating life imprisonment for offenders who have two or more strike convictions and subsequently suffer a felony conviction].)
Robinson argues his sentence is grossly disproportionate to his crimes because his current, as well as his prior strike offense, were nonviolent. We are not unsympathetic to his point, but unless and until the Legislature or voters decide to change it, the three strikes law requires life sentences for offenders in his position. Robinson's sentence is no more extreme than the scores of third-strike sentences for nonviolent crimes reviewing courts uphold as constitutional on a regular basis. (See, e.g., Ewing v. California, supra, 538 U.S. at p. 21 [upholding California's three strikes law as a constitutional punishment for a repeat offender and affirming sentence of 25 years to life for shoplifting golf clubs]; 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. Meeks (2004) 123 Cal.App.4th 695, 707 [same]; 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].) Finally, California's punishment for Robinson's crimes is no more extreme than other jurisdictions, as many states impose life imprisonment on habitual criminals through recidivist statutes similar to our three strikes law. (People v. Cline (1998) 60 Cal.App.4th 1327, 1338 [California's scheme is part of a nationwide pattern of statutes calling for severe punishment for recidivist offenders].)
H. Ineffective Assistance of Counsel
Robinson argues his counsel rendered ineffective assistance by failing to raise to the trial court most of the issues he raises on appeal. This claim fails because we have considered those issues on their merits and found no error, meaning he cannot demonstrate his counsel's performance was deficient. (Strickland v. Washington (1984) 466 U.S. 668, 687-695.)
I. Presentence Conduct Credit
At sentencing, the trial court credited Robinson with 876 actual days in custody and 131 days of conduct credit, presumably applying section 2933.1, which imposes a 15 percent limit on conduct credits where the defendant has been convicted of a violent felony listed in section 667.5. Robinson argues, and the People correctly agree, the court should have instead awarded him 876 days of conduct credits under section 4019, which applies to nonviolent offenses like the nonviolent sexual assaults here.
"A criminal defendant is entitled to accrue both actual presentence custody credits under section 2900.5 and conduct credits under section 4019 for the period of incarceration prior to sentencing." (People v. Ramirez (2014) 224 Cal.App.4th 1078, 1083.) Section 4019, as amended in 2011, provides that defendants receive conduct credit "at a rate of two days for every two days in presentence custody." (People v. Chilelli (2014) 225 Cal.App.4th 581, 591; § 4019, subds. (b), (c), (f).) Accordingly, Robinson is entitled to 876 days of conduct credit. (People v. Scott (1994) 9 Cal.4th 331, 354 [appellate courts may correct errors in custody and conduct credits at any time].)
III
DISPOSITION
We modify the judgment to reflect 876 days of presentence custody credit and 876 days of conduct credit for a total presentence custody credit of 1,752 days. As modified, we affirm the judgment. We direct the trial court to prepare an amended abstract of judgment containing the correct presentence credits and forward it to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
SLOUGH
J. We concur: McKINSTER
Acting P. J. MILLER
J.