Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. 05F05488, 05F05994
RAYE, J.
A jury found defendant Prince Edward Swafford guilty of five counts of robbery (Pen. Code, § 211) and found true allegations of two prior felony convictions. The trial court sentenced defendant to a term of 125 years to life plus 25 years.
On appeal, defendant contends the trial court abused its discretion by finding that he was not outside the spirit of the “three strikes” law, and his sentence constitutes cruel and unusual punishment under the state and federal Constitutions. We shall reject the contentions and affirm.
BACKGROUND
The evidence at trial related to five robberies committed by defendant at different retail locations in Sacramento between June 10, 2005, and June 21, 2005. Defendant confessed to committing all five robberies.
The first robbery took place on June 10, 2005, when defendant entered a Blockbuster video store and told the clerk, “Give me all your money.” After the clerk laughed at him, defendant removed what appeared to be a semiautomatic handgun from his waistband and repeated his demand. The clerk put approximately $200 into a bag and handed it to defendant. Defendant took the money and left the store.
On June 12, 2005, at about 11:00 a.m., defendant entered a Walgreens pharmacy and picked up a bottle of Clearasil face wash and a gift card. As the clerk rang up the items, defendant said, “This is a stick up” and displayed the handle of a gun sticking from his pocket. The clerk activated the gift card and gave defendant over $400 from the register, along with the bottle of face wash. Defendant took the items and ran from the store.
Defendant entered a Smart & Final store at around 8:00 p.m. on June 15, 2005, picked up some chocolates and a box of Jolly Rancher candy, and took them to the cashier. After the cashier rang up the items, defendant said, “[T]his is a robbery, bitch” and displayed the handle of a gun sticking out of his pocket. The cashier put about $200 from the register and the candy into a bag and gave it to defendant, who then left the store.
On June 20, 2005, at around 8:45 p.m., defendant entered a Round Table Pizza restaurant and ordered a pizza. He paid for the pizza, and as the manager opened the register to give him change, defendant threw a plastic bag on the counter and threatened to shoot the clerk if she did not put the money from the register into the bag. The clerk put about $150 into the bag, which defendant took before walking out of the restaurant.
The last robbery started at a Walgreens pharmacy on June 21, 2005, at about 11:15 a.m. Defendant went to the cashier with some batteries and a disposable camera. As she was ringing up the items, defendant told the cashier, “[D]on’t look at me bitch or I’ll kill you.” He then showed her the handle of a gun tucked into the waistband of his pants and said, “[G]ive me all your money, bitch or I’ll kill you.” After the clerk gave him the money from her register, defendant took the money, batteries, and camera and left the store.
The Walgreens manager saw defendant get into the passenger side of a Chevrolet Malibu and drive away. The manager wrote down the vehicle’s license plate number and called 911. The car was rented to defendant’s aunt, who directed the officers to a Motel 6 in West Sacramento. Police officers went to the motel and saw defendant exit one of the rooms and get into the Malibu. After stopping the vehicle and detaining defendant, officers entered the motel room and found a package of Walgreens batteries, a bottle of Clearasil facial wash, a box of Jolly Rancher candy, a package of chocolate-covered espresso beans, and two Smart & Final bags. A search of the Malibu found a replica semiautomatic handgun and a Walgreens disposable camera.
Defendant was positively identified in a photographic lineup by the Round Table Pizza manager, the clerk from the June 12 Walgreens robbery, and the manager from the June 21 Walgreens robbery. A customer present at the Round Table robbery tentatively identified defendant in a live lineup.
DISCUSSION
I
Defendant contends the trial court abused its discretion when it denied his motion to dismiss one of the two strike priors in furtherance of justice. We are not persuaded.
Defendant was 28 years old when sentenced. He has two prior convictions for robbery (Pen. Code, § 211) in 1997, a 1996 conviction for grand theft (Pen. Code, § 487, subd. (c)), and a 1996 misdemeanor trespassing conviction (Pen. Code, § 602, subd. (k)(1)). The two prior robbery convictions, in which defendant robbed two different restaurants at gunpoint, were very similar to his current offenses. Defendant was on parole for about two and one-half months before committing the current offenses.
While in jail, defendant learned that his aunt had provided critical information leading to his arrest. He then called his aunt from jail, saying, “Well, I’ll be getting out of here soon.”
Defendant filed a motion to strike both of his prior robbery convictions with respect to four of the five robbery counts pursuant to Penal Code section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
In support of his motion, defendant asserted his current robberies only involved a “plastic gun,” he had not been violent in any of his current or prior convictions, and he was “a desperate person with no skills and no other ability to provide for himself” who committed the crimes to support himself and his pregnant girlfriend. Defendant also cited his lack of family support and his good demeanor during the trial.
The trial court rejected the motion, finding defendant was within the spirit of the three strikes law and making the observation that defendant “has a nice appearance but he robs people.”
When determining whether to strike a prior conviction pursuant to Penal Code section 1385, the judge “must consider whether, in light of the nature and circumstances of [the defendant’s] 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).)
Our review of this exercise of discretion is “deferential.” (Williams, supra, 17 Cal.4th at p. 162.) We cannot overturn the trial court unless its ruling “‘falls outside the bounds of reason’ under the applicable law and the relevant facts [citations].” (Ibid.)
Defendant contends the trial court abused its discretion by failing to take into account his cooperation with the authorities after the arrest. In support of his claim, defendant argues the prosecution might not have been able to convict him on all of the robbery charges because some of the witnesses had problems identifying him.
We will not overturn the trial court’s decision on the basis of such speculation. Although defendant confessed to the crimes, there was ample proof outside of the confession of his guilt on all charges. His cooperation did not extend beyond the confession and did not prevent him from threatening his aunt because of her cooperation with the police.
Defendant’s criminal record places him within the spirit of the three strikes law. His current offenses -- committed within months of leaving prison -- show a proclivity for committing robberies, and his record demonstrates a substantial risk of recidivism. Denying defendant’s Romero motion was not an abuse of the trial court’s discretion.
II
Defendant contends his sentence of 125 years to life plus 25 years violates the state and federal proscriptions against cruel and unusual punishment. However, because the claim is fact based and he failed to raise the issue in the trial court, it has been forfeited. (People v. Kelley (1997) 52 Cal.App.4th 568, 583.) In any event, even if defendant had properly preserved the issue, the claim would fail. Since we also reject defendant’s claim on the merits, his claim of ineffective assistance of counsel fails as well.
A punishment violates the California Constitution “if, although not cruel or unusual in its method, it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.” (In re Lynch (1972) 8 Cal.3d 410, 424.) In applying this principle, we look to: (1) the nature of the offense and the offender, (2) a comparison with the penalty for more serious crimes in the same jurisdiction, and (3) a comparison with the punishment imposed for the same offense in different jurisdictions. (Id. at pp. 425-427.)
Defendant’s offenses are serious and numerous. He was convicted of five counts of robbery, a serious felony and a strike under California sentencing law. (Pen. Code, §§ 1192.7, subd. (c), item (19), 667, subd (a)(1).) Although he used a replica handgun, defendant employed the device in a manner to lead his victims to believe the gun was real, even using it to threaten the life of two of his victims.
Defendant was born on November 21, 1977. His first felony offense, grand theft, was committed in 1995, just after he turned 18. Defendant was sentenced to four years’ formal probation in March of 1996. In August and September of 1996, he was convicted of trespassing and granted three years’ informal probation in each case. Defendant then committed two robberies in January of 1997 and was sentenced to nine years in prison on April 30, 1997. His current offenses were committed about two and one-half months into his parole from the prior robbery convictions. Having spent almost all of his adult life in prison, on probation, or on parole, defendant is the type of recidivist offender for whom the three strikes law was designed.
Defendant claims his sentence is disproportionate because it would keep him in prison longer than someone convicted of “cold-blooded, premeditated murder with a deadly weapon . . . .”
This argument disregards the fact that defendant’s sentence represents a cumulative punishment resulting from the commission of numerous offenses on multiple victims. Thus, “[t]he penalties for single offenses, such as those defendant cites, cannot properly be compared to those for multiple offenses . . . .” (People v. Crooks (1997) 55 Cal.App.4th 797, 807.)
Defendant also asserts that his sentence is disproportionate when compared to sentences for similarly situated offenders in other states. However, he supplies no support for this assertion other than an indirect reference to our decision in People v. Carmony (2005) 127 Cal.App.4th 1066 (Carmony). In Carmony, the defendant was sentenced to 25 years to life under the three strikes law for failing to register as a sex offender. (Id. at pp. 1071-1072.) Among our reasons for finding the sentence cruel and unusual was its severity relative to the penalties for similar offenders in other states. (Id. at pp. 1083-1084.) In support of his argument, Carmony presented this court with “a nationwide chart, which shows the penalties for violating sex offender registration requirements.” (Id. at p. 1082.)
Defendant’s crimes are different and much more severe than Carmony’s single conviction for failing to register as a sex offender. He does not provide us with any analysis of how other jurisdictions punish defendants like himself. Since defendant has not cited any authority supporting his claim of interjurisdictional disproportionality, we reject the claim. (People v. Freeman (1994) 8 Cal.4th 450, 482, fn. 2.)
Defendant’s sentence does not shock the conscience and is not disproportionate under California law. He fares no better under federal law. “The Eighth Amendment [to the United States Constitution], which forbids cruel and unusual punishments, contains a ‘narrow proportionality principle’ that ‘applies to noncapital sentences.’ [Citations.]” (Ewing v. California (2003) 538 U.S. 11, 20 [155 L.Ed.2d 108].) “[T]he gross disproportionality principle [is] applicable only in the ‘exceedingly rare’ and ‘extreme’ case. [Citations.]” (Lockyer v. Andrade (2003) 538 U.S. 63, 73 [155 L.Ed.2d 144.)
Here, as discussed in connection with defendant’s California constitutional claim, defendant’s sentence is not grossly disproportionate in light of his numerous robberies and his substantial criminal record. Thus, his Eighth Amendment claim fails.
DISPOSITION
The judgment is affirmed.
We concur: DAVIS , Acting P.J., CANTIL-SAKAUYE , J.