Filed 12/11/14 P. v. Smith CA2/1
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,                                                          B250733

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. PA068237)
         v.

BOBBIE SMITH,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County. David
B. Gelfound, Judge. Affirmed.
         Nancy J. King, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Lance E. Winters, Assistant Attorney
General, Kenneth C. Byrne and Seth P. McCutcheon, Deputy Attorneys General, for
Plaintiff and Respondent.
                                         ________________________
         A jury found Bobbie Smith guilty of false imprisonment by violence (Pen. Code, §
     1
236), attempted forcible rape (§§ 261, subd. (a)(2), 664), and felonious indecent
exposure (§ 314, subd. (1)). In a bifurcated trial, the jury found Smith had 11 prior strike
convictions. The trial court sentenced him to 30 years to life in prison. In a prior
         2
appeal, this court reversed Smith’s convictions for false imprisonment and attempted
rape based on insufficiency of the evidence. On remand, the trial court sentenced Smith
to 25 years to life in prison on the remaining conviction for felonious indecent exposure.
         In this appeal, Smith contends his sentence violates the constitutional ban on cruel
and unusual punishment. He also contends the trial court abused its discretion when it
sentenced him as a third strike offender under the “Three Strikes” law instead of
exercising its discretion to dismiss a prior strike conviction in furtherance of justice under
section 1385. Rejecting Smith’s contentions, we affirm.
                                        BACKGROUND
         In setting forth the evidence presented at trial, the verdicts, and the original
sentence, we quote from our opinion in the prior appeal in this case:
         “I. Prosecution Evidence
         “On July 21, 2010, at about 8:00 a.m., 19-year-old A. M. arrived with her two-
month-old baby at her mother-in-law’s business, a traffic school, and parked her car
outside a closed gate in front of the school. The office had not yet opened and A. was
there to meet a client of the school. When A. first arrived at the school, she noticed
appellant [Smith] sweeping outside a business next door to the school. She recognized
him as having swept outside the traffic school once in the past.
         “After the client left, A. walked to the gate, opened it so she could park inside, and
was getting back into her car when appellant approached and asked if she needed help
with the gate. As appellant talked, A. noticed he was looking ‘toward [her] breast’ and


         1
             Further statutory references are to the Penal Code.
         2
             People v. Smith (Feb. 27, 2013, B234315) [nonpub. opn.].

                                                 2
toward [her] vaginal area.’ A. told appellant that she did not need help and proceeded to
drive through the open gate and parked her car in the driveway. As A. got out of her car,
appellant approached her again and asked if she wanted him to wash her car. A. declined
appellant’s offer and entered the office with her baby.
       “A.’s uncle-in-law, Raymundo, arrived at the office and asked A. if she could stay
a little longer because he needed to go take a shower. Before Raymundo left, appellant
asked A. while she was outside the school ‘if he could sweep the business’ and A.
responded she didn’t know and went inside to ask Raymundo. Raymundo said yes,
telling A. to give appellant two dollars for the job. A. went back outside to where
appellant was sweeping in front of the neighboring business and told appellant that he
could sweep the front sidewalk of the school. A. went back inside the office and sat
behind the desk while Raymundo left.
       “A few minutes after Raymundo left and while A. sat at the desk, appellant walked
in through the front door and ‘asked for . . . the dustpan.’ Appellant pointed toward the
bathroom when he asked for the dustpan. Knowing that the dustpan was kept in the
bathroom, A. stood up to get it. A. did not remember if she told appellant that she would
get the dustpan, testifying on direct examination that when she stood up she said she
would get the dustpan, but on cross-examination testifying that she did not tell appellant
she was going to get the dustpan. At that point, A. did not see appellant’s penis exposed.
A. went to the bathroom to get the dustpan which was kept next to the sink. The dustpan
had an upright pole and could be picked up without bending over. A. picked up the
dustpan and turned back to the door to find appellant standing in the doorway to the
bathroom. A. had not realized that appellant had followed her to the bathroom and felt
scared and nervous when she saw that appellant’s ‘soft, semi-erect’ penis was outside his
pants, through the open zipper. A. moved the dustpan to the side towards appellant.
With appellant standing in the doorway, A. could not exit the bathroom. Appellant told
A., ‘it was a nice bathroom or something like that.’ Nervous and scared, A. felt trapped
because appellant was ‘too close’ and A. ‘was trying to think of a way out.’ Appellant
stepped forward, causing A. to step back and bump into the bathroom sink. Seeing an

                                             3
opening, A. rushed out around appellant, and ‘went really quickly to the back of the desk
to get [her] cell phone.’ Appellant was close enough to touch A. but he did not try to
touch or restrain A. in the bathroom, did not tell her she could not leave, did not step in
front of A. as she left, did not look at or comment about his penis, and did not say
anything sexual or flirtatious to A.
       “Appellant returned to the front of the office carrying the dustpan with his penis
still exposed. Scared and too nervous to actually make a phone call, A. attempted to
scare appellant by pretending to make a call. Appellant stood in front of A. and the desk
and then walked towards the couch and A.’s baby and said to A., ‘what a pretty baby.’
At this point, appellant’s penis was still exposed. Appellant did not say anything about
his penis, did not say anything sexual or flirtatious and did not do anything to direct her
attention to his penis. Appellant then walked to the front door and while opening the
door put his penis back into his pants and zipped up his pants. Appellant exited and
began sweeping. After appellant exited, A. immediately locked the front door and called
her mother-in-law. Her mother-in-law told A. to call 911 and she did so. [Footnote
omitted.]
       “About 10 minutes after appellant exited and a few minutes after A. called 911,
appellant began knocking on the locked front door. At that point, A. had forgotten that
she owed appellant money for sweeping and that appellant still had the school’s dustpan.
A minute later, appellant began ‘pounding’ on the window and said, ‘I know you are in
there. I can still see your baby.’ A. did not respond. About a minute later, A. then heard
‘the back door being pounded on.’ From where she was hiding inside a doorless, walk-in
closet in the office area, A. saw through the window that appellant went back to sweeping
the front sidewalk of the school and was there when the police arrived and arrested him.
       “Approximately eight minutes after A. made the call to 911, the police arrived and
arrested appellant. Los Angeles Police Detective Monica McPartland was assigned as the
investigating officer to the case and interviewed A. later that morning. During the
interview, A. ‘appeared to be in shock, somewhat upset and crying, very tearful.’
McPartland searched appellant’s motel room, which was within walking distance of the

                                              4
traffic school, and found ‘soft’ pornography and one adult magazine. McPartland
testified that appellant had been released from prison on December 9, 2009, after serving
time for crimes that occurred in 1982.
“II. Prosecution’s Evidence Code Section 1108 Evidence
       “Denise Thomas testified that on March 19, 1982, at about 6:30 a.m., she was on
her way to Crenshaw High School. Thomas was 14 years old at the time and was
walking alone when appellant approached her. Appellant held a butcher knife to
Thomas’s side and told her to get inside his car. Thomas got into the car and appellant
climbed over her into the driver’s seat and locked the doors. Appellant drove off and
began masturbating while looking for a place to stop the car.
       “After parking in an alley, appellant told Thomas to pull her pants down and get
into the back seat. Thomas struggled a little before complying. Appellant then got into
the back seat with Thomas and raped her. After the rape, appellant drove Thomas to
another location and told her to ‘get out the car.’ When Thomas got out, she memorized
the license plate on appellant’s car, wrote it down on her hand, and provided it to police.
       “Thomas testified against appellant as a rape victim in the 1982 trial and another,
unnamed individual testified as a rape victim as well.
       “Jaide Lightfoot testified about an incident that occurred on March 19, 1982, after
the incident involving Thomas had occurred. Lightfoot was 16 years old at the time and
returning from lunch, on her way back to Crenshaw High School. Lightfoot was walking
with another girl when appellant, sitting in a vehicle, signaled to Lightfoot and waved
money that he then placed on the passenger seat. As Lightfoot looked at the money,
appellant jumped out of the car, grabbed Lightfoot, and attempted to remove her pants
while trying to put her into the car. Lightfoot fought back and was able to grab onto a
tree which broke appellant’s grasp. After losing his grip, appellant jumped back into his
car and fled.
       “Lightfoot testified against appellant in the 1982 trial.




                                              5
       “Along with the testimony of Thomas and Lightfoot, four certified convictions
were admitted in evidence pursuant to Penal Code section 969b. The convictions
included three counts of rape and one count of assault with intent to commit rape. This
document was redacted to six pages in length and included the rape convictions from
testifying victim, Thomas, and an assault with intent to commit rape conviction from
testifying victim, Lightfoot, along with two other rape convictions involving another
single, non-testifying victim.
“III. Defense Evidence
       Appellant did not testify, and no witnesses were called on his behalf.
“IV. Conviction and [Original] Sentence
       “The jury convicted appellant of all three counts: false imprisonment by violence
(§ 236), attempted forcible rape (§§ 664/261, subd. (a)(2)), and indecent exposure with a
prior conviction (§ 314, par. 1.).
       “In bifurcated proceedings, the jury found to be true that appellant had a prior
serious felony conviction within the meaning of section 667, subdivision (a), 11 prior
‘strikes’ within the meaning of section 667, subdivisions (b) through (i) and 11 prior
convictions within the meaning of section 667.5, subdivision (b).
       “Appellant was sentenced to 25 years to life for the attempted forcible rape charge
plus five years pursuant to section 667, subdivision [(a)], for an aggregate term of 30
years to life. The trial court also sentenced appellant to 25 years to life for the false
imprisonment charge and 25 years to life for the indecent exposure charge, which were
both stayed pursuant to section 654.” (People v. Smith, supra, B234315, pp. 2-6.)
V. Prior Appeal and Remand for Resentencing
       Smith appealed from the judgment. This court reversed Smith’s convictions for
false imprisonment and attempted forcible rape based on insufficiency of the evidence,
and remanded the matter to the trial court for resentencing. (People v. Smith, supra,
B234315, p. 15.)
       On July 25, 2013, the trial court held the resentencing hearing. On the
prosecution’s motion, the court dismissed the five-year prior serious felony enhancement

                                               6
under section 667, subdivision (a)(1), and the one-year prior prison term enhancement
under section 667.5, subdivision (b). The court noted the prosecution was “proceeding
on the strike priors that were found true” by the jury under the Three Strikes law.
       At the resentencing hearing, Smith’s counsel did not ask the trial court to dismiss a
prior strike conviction in furtherance of justice under section 1385 as he did at the
                             3
original sentencing hearing. Instead, Smith’s counsel mentioned Proposition 36 and
argued the trial court could not sentence Smith as a third strike offender because his
current offense, indecent exposure after a prior lewd or lascivious act conviction (§ 314),
was not a serious or violent strike. The court pointed out Proposition 36 is not applicable
to Smith’s sentence due to Smith’s prior convictions for rape and other enumerated sex
crimes. (§ 667, subd. (e)(2)(C)(iv).) On appeal, Smith concedes the court was correct in
its interpretation of Proposition 36.
       In resentencing Smith, the trial court referenced Smith’s “multiple priors including
kidnap, rape, [and] a laundry list of very brutal crimes.” The court noted, during trial, it
“heard the testimony from some of the prior victims, [a] 13-year-old who was raped by
the defendant at knife point . . . , along with another teenager who was raped by the
defendant at knife point . . . . So his prior record is extremely serious. The probation
report indicates that he’s a sexual predator.”
       On the remaining count for indecent exposure with a prior lewd or lascivious act
conviction, a felony, the court sentenced Smith as a third strike offender to 25 years to
life in prison. Smith’s counsel did not make the cruel and unusual punishment argument
he raises in this appeal.


                                        DISCUSSION
Cruel and Unusual Punishment

       3
         At the original sentencing hearing held June 30, 2011 before Judge David B.
Gelfound, the same judge who presided at the July 25, 2013 resentencing hearing, the
trial court denied Smith’s motion to dismiss prior strike convictions in furtherance of
justice under section 1385.

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       Smith contends his current sentence of 25 years to life for felonious indecent
exposure constitutes cruel and/or unusual punishment under the California and United
States Constitutions.
       The Attorney General argues Smith forfeited this contention on appeal by failing
to raise it in the trial court. (See People v. Em (2009) 171 Cal.App.4th 964, 971, fn. 5;
People v. DeJesus (1995) 38 Cal.App.4th 1, 27.) Smith argues his trial counsel rendered
ineffective assistance in not making a cruel and unusual punishment argument below.
Because Smith’s ineffective assistance of counsel claim requires us to address the issue
on the merits in any event, we need not decide the forfeiture question. Smith’s
ineffective assistance of counsel claim fails because the sentence does not constitute cruel
or unusual punishment, as explained below.
       Smith must overcome a “considerable burden” in challenging his penalty as cruel
or unusual under the California Constitution. (People v. Wingo (1975) 14 Cal.3d 169,
174.) “[I]n California a punishment may violate article I, section 6, of the 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.) Our Supreme Court has
identified three factors for reviewing courts to consider in determining whether a
sentence constitutes cruel or unusual punishment: (1) “the nature of the offense and/or
the offender, with particular regard to the degree of danger both present to society”; (2)
how the punishment compares with punishments for more serious crimes in the same
jurisdiction; and (3) how the punishment compares with punishments for the same
offense in other jurisdictions. (Id. at pp. 425, 426-427.)
       In examining the nature of the offense and the offender, we consider “the totality
of the circumstances surrounding the commission of the offense” and the characteristics
of the particular defendant, including “prior criminality.” (People v. Dillon (1983) 34
Cal.3d 441, 479.) Smith was released from incarceration on December 9, 2009, after
serving time in prison for the very serious crimes he committed on multiple minor
victims in March 1992—kidnapping, rape, lewd or lascivious acts. Seven-and-one-half

                                              8
months after his release he committed the present offense, indecent exposure, a felony
due to his prior lewd or lascivious act convictions. The evidence presented at trial was
sufficient to show he willfully and lewdly exposed his penis in the presence of the 19-
year-old female victim (§ 314), after previously staring at her breasts and “vaginal area.”
(People v. Smith, supra, B234315, pp. 2, 3.) The victim was frightened and shocked
when Smith followed her to the bathroom, where she had gone to retrieve the dustpan,
and then took a step toward her with his penis exposed. While the present offense is
nonviolent, we disagree with Smith’s characterization of this felony as a “minor offense”
with “minimal” magnitude, especially given his history as a “sexual predator” (to quote
the trial court’s finding at the resentencing hearing). Based on our consideration of the
nature of the offense and the offender, we find Smith’s sentence of 25 years to life is not
so disproportionate to the present offense that it shocks the conscience and offends
fundamental notions of human dignity. (Compare People v. Carmony (2005) 127
Cal.App.4th 1066, 1086 [“the offense of willful failure to file a duplicate registration as a
sex offender is a passive, nonviolent, regulatory offense, which causes no harm and poses
no danger to the public,” and a 25-years-to-life sentence is disproportionate to that
offense and constitutes cruel and unusual punishment].)
       Turning to the second of the three factors our Supreme Court identified in Lynch, a
punishment may be deemed disproportionate or “suspect” where more serious crimes in
the same jurisdiction are “punished less severely than the offense in question.” (In re
Lynch, supra, 8 Cal.3d at p. 426.) In comparing Smith’s punishment with punishments
for more serious crimes committed in California, we must look at sentences for other
recidivists, not first-time offenders. (People v. Martinez (1999) 71 Cal.App.4th 1502,
1512.) A defendant sentenced as a third strike offender for a crime more serious than
felonious indecent exposure would not receive a lighter sentence than Smith. Thus,
Smith cannot demonstrate his 25-years-to-life sentence is disproportionate when
compared to sentences imposed and upheld for more serious third strike offenses in
California.



                                              9
         In comparing Smith’s punishment with punishments for the same offense in other
jurisdictions—the third Lynch factor—we note “California’s [Three Strikes] scheme is
part of a nationwide pattern of statutes calling for severe punishments for recidivist
offenders.” (People v. Cline (1998) 60 Cal.App.4th 1327, 1338.) Smith argues
California’s Three Strikes law is more severe and lacks the limitations of recidivist
statutes in other states. He asserts, “the habitual offender provisions in most other states
require the current felony be of an aggravated type, require the prior convictions to have
been brought and tried separately, or else provide for an aggravated term far less than that
imposed here.” “That California’s punishment scheme is among the most extreme does
not compel the conclusion that it is unconstitutionally cruel or unusual. This state
constitutional consideration does not require California to march in lockstep with other
states in fashioning a penal code.” (People v. Martinez, supra, 71 Cal.App.4th at p.
1516.)
         Smith’s Three Strikes sentence of 25 years to life for indecent exposure with a
prior lewd or lascivious act conviction does not shock the conscience and offend
fundamental notions of human dignity. Felonious indecent exposure is not “an offense so
minor [like willful failure to file a duplicate registration as a sex offender] that it cannot
trigger the imposition of a recidivist penalty without violating the cruel and/or unusual
punishment prohibitions of the United States and California Constitutions.” (People v.
Carmony, supra, 127 Cal.App.4th at p. 1071.) Smith’s argument his sentence is
punishment for his prior (1982) crimes alone, and therefore in violation of the federal and
state constitutional prohibitions against double jeopardy, is without merit.
         Based on the foregoing analysis, we also reject Smith’s challenge to his sentence
under the Eighth Amendment to the United States Constitution, which “forbids cruel and
unusual punishments” and “contains a ‘narrow proportionality principle’ that ‘applies to
noncapital sentences,’” prohibiting “extreme sentences that are ‘grossly disproportionate’
to the crime.” (Ewing v. California (2003) 538 U.S. 11, 20, 23.) “[T]he principles
developed by our [Supreme C]ourt [regarding the ban on cruel and unusual punishment]
are similar to those developed by the United States Supreme Court.” (People v. Barrera

                                              10
(1993) 14 Cal.App.4th 1555, 1566, fn. 7.) In support of his challenge under the Eighth
Amendment, Smith makes arguments we already rejected above—that his sentence “is
completely disproportionate to the crime he committed and dishonors all notions of
human decency . . . , or he is being punished again for the crimes he committed in the
past, which violates the Fifth Amendment’s prohibition against double jeopardy.”
Trial Court’s Discretion to Dismiss a Prior Strike
       Smith contends the trial court abused its discretion when it sentenced him as a
third strike offender under the Three Strikes law instead of exercising its discretion to
dismiss a prior strike conviction in furtherance of justice under section 1385.
       In People v. Superior Court (Romero) (1996) 13 Cal.4th 497, the California
Supreme Court held, “in cases arising under” the Three Strikes law, a trial court has
limited “discretion to strike prior felony conviction allegations in furtherance of justice
pursuant to section 1385[, subdivision ](a).” (Id. at pp. 504, 530, fn. 13.) Our Supreme
Court also has explained, “any failure on the part of a defendant to invite the court to
dismiss under section 1385 following Romero waives or forfeits his or her right to raise
the issue on appeal.” (People v. Carmony (2004) 33 Cal.4th 367, 375-376.) Smith did
not ask the trial court to dismiss a strike when the court sentenced him for felonious
indecent exposure. Thus, Smith has forfeited this contention on appeal. Briefly
addressing the issue on the merits to preclude an ineffective assistance of counsel claim,
we conclude the trial court did not abuse its discretion in sentencing Smith as a third
strike offender.
       In People v. Williams (1998) 17 Cal.4th 148, 161, the California Supreme Court
concluded, when deciding whether to strike a prior conviction under section 1385, 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 [Three
Strikes] 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, supra, 17 Cal.4th at p. 161.) In reviewing the trial court’s decision for abuse of

                                             11
discretion, we determine whether it “‘falls outside the bounds of reason’” under the law
and the facts of the case. (Id. at p. 162.) A defendant who “seeks reversal must
demonstrate that the court’s decision was irrational or arbitrary.” (People v. Myers
(1999) 69 Cal.App.4th 305, 309-310.)
       The trial court did not abuse its discretion in sentencing Smith as a third strike
offender. Smith cannot demonstrate he falls outside the spirit of the Three Strikes law.
Smith asserts, at 58 years old (at the time of the resentencing), he “is no longer at an age
that involves a high risk of reoffending, and any argument that society has an interest in
incarcerating him until he is 80 years old (and then only releasing him after a parole
hearing) is simply absurd.” We disagree that the trial court sentenced Smith in an absurd,
irrational or arbitrary manner. Seven-and-one-half months after he was released from a
lengthy prison sentence for very serious sex crimes, Smith willfully and lewdly exposed
his penis in the presence of a 19-year-old female victim and approached her. This
offense is a felony due to Smith’s prior lewd and lascivious act convictions. The interests
of justice did not require the court to dismiss a prior strike conviction.
       Smith asserts, in resentencing him, the trial court should have taken his “changed
circumstances into consideration”—the fact this court reversed his false imprisonment
and rape convictions—and given him a lighter sentence. Not so. Felonious indecent
exposure is not a trivial offense, and the trial court did not abuse its discretion in
sentencing Smith as a third strike offender.




                                       DISPOSITION
       The judgment is affirmed.

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      NOT TO BE PUBLISHED.




                                                       CHANEY, Acting P. J.


We concur:



             JOHNSON, J.



             MILLER, J.*




      *
          Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.

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