Filed 1/14/14 P. v. DeJesus CA4/2



                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                                     or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E057055

v.                                                                       (Super.Ct.No. RIF10004846)

OSVALDO VELEZ DeJESUS,                                                   OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. Michael S. Hider, Judge.

(Retired judge of the Merced Super. Ct. assigned by the Chief Justice pursuant to art. VI,

§ 6 of the Cal. Const.) Affirmed.

         Rodger Paul Curnow, under appointment by the Court of Appeal, for Defendant

and Appellant.

         Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

Peter Quon, Jr., and Seth M. Friedman, Deputy Attorneys General, for Plaintiff and

Respondent.



                                                             1
       This is an appeal by defendant and appellant, Osvaldo Velez DeJesus (defendant),

from the judgment entered after a jury found him guilty on three counts of a seven-count

information. The charges stem from a physical altercation defendant had with his then

girlfriend, Jane Doe, on June 25, 2010. As a result of that altercation, the District

Attorney of Riverside County charged defendant in count 1 with attempted willful,

deliberate and premeditated murder (Pen. Code, § 664, 187);1 count 2 with inflicting

corporal injury on a spouse or cohabitant (§ 273.5, subd. (a)); count 3 with assault with a

deadly weapon (§ 245, subd. (a)(1)); count 4 with false imprisonment (§ 236); count 5

with making criminal threats (§ 422); count 6 with an attempt to make criminal threats

(§§ 664, 422); and in count 7 with attempting to dissuade a witness from testifying

(§ 136.1, subd. (a)(2)).

       The jury acquitted defendant on counts 1, 4, 5, and 6. On counts 2 and 3, they

found defendant guilty of the lesser included offenses of spousal battery in violation of

section 243, subdivision (e)(1), and battery in violation of section 240, respectively. The

jury convicted defendant of attempting to dissuade a witness in violation of section 136.1,

subdivision (a), as alleged in count 7. Defendant admitted the allegations in connection

with count 7 that he previously had been convicted of four prior serious felonies within

the meaning of the three strikes law, section 667, subdivisions (c) and (e). Defendant

also admitted the prior prison term allegation under section 667.5, subdivision (b), and

the prior serious felony allegations under section 667, subdivision (a). After denying


       1   All statutory references are to the Penal Code unless otherwise stated.


                                              2
defendant’s motion under section 17, subdivision (b) (hereafter 17(b)), to reduce his

conviction on count 7 to a misdemeanor, and denying his request to strike his prior

serious felony convictions, the trial court sentenced defendant to serve the mandatory

three strikes term of 25 years to life in state prison.2

       Defendant contends in this appeal that the trial court incorrectly instructed the jury

on count 7, the charge he attempted to dissuade Jane Doe from testifying at trial.

Defendant also challenges his three strikes sentence on the following grounds: (1) the

trial court abused its discretion in refusing to reduce defendant’s conviction on count 7 to

a misdemeanor; (2) the trial court abused its discretion in refusing to dismiss defendant’s

prior serious felony convictions; and (3) the sentence constitutes cruel and unusual

punishment in violation of the state and federal Constitutions.

       We conclude defendant’s claims are meritless. Therefore, we will affirm the

judgment.

                                            FACTS

       Defendant and Jane Doe were walking to their apartment when they began

arguing. Defendant hit Jane Doe in the face and she fell down on the sidewalk. At the

apartment, Jane Doe told defendant to get his things and leave. Defendant grabbed a

knife from the kitchen and said he wanted to kill Jane Doe’s son, who was standing

outside. When Jane Doe repeated that she wanted defendant to leave, he grabbed her by


       2 The trial court also imposed a determinate term of 12 years, comprised of one
year on each of two alleged prison priors (§ 667.5, subd. (b)) and five years on each of
two alleged prior serious felony convictions (§ 667, subd. (a)(1)).


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the hair and hit her in the face. Jane Doe fell onto the couch. Defendant yelled that he

was going to kill Jane Doe. The two fought with each other. Jane Doe’s ex-husband,

who had just brought their children home from a visit, tried to break up the fight but

backed off when defendant threatened him with the knife. Defendant grabbed Jane Doe’s

hair and banged her head into the floor. Defendant also kicked her, hit her in the head,

and choked her. Jane Doe’s daughter called 911. The fight ended when sheriff’s

deputies and paramedics arrived at the apartment.

                                      DISCUSSION

                                             1.

                    FAILURE TO INSTRUCT ON SECTION 136.1

       Defendant contends the trial court should have instructed the jury on the

presumption set out in section 136.1, subdivision (a)(3), which states, “For purposes of

this section, evidence that the defendant was a family member who interceded in an effort

to protect the witness or victim shall create a presumption that the act was without

malice.”

       Defendant did not request an instruction on the quoted principle. Instead he

contends the trial court had a sua sponte duty to instruct on the legal principle. We do not

share defendant’s view, but we will not resolve the issue because defendant asserts an

alternate claim—that he was denied the effective assistance of counsel as a result of his

trial attorney not requesting a jury instruction based on the section 136.1,

subdivision (a)(3) presumption. Consequently, we must determine whether trial

counsel’s performance was deficient because he failed to request such an instruction.


                                              4
(See People v. Dennis (1998) 17 Cal.4th 468, 540-541, citing, among other cases,

Strickland v. Washington (1984) 466 U.S. 668 [ineffective assistance of counsel requires

defendant to show both deficient performance and resulting prejudice].)

       The evidence is undisputed that defendant and Jane Doe were not married, and

had been living together for about four months. The first issue we must resolve is

whether defendant, as a cohabitant, is a “family member” of Jane Doe as that phrase is

used in section 136.1, subdivision (a)(3). Defendant argues, because they lived together,

that he and Jane Doe had a familial relationship. While that assertion might or might not

be true, it is irrelevant. The statute uses the specific phrase, “family member,” not

familial relationship.

       The phrase family member is not defined in the statute. Under settled principles

of statutory construction, we give the words of a statute “their usual and ordinary

meaning.” (DaFonte v. Up–Right, Inc. (1992) 2 Cal.4th 593, 601.) The term family

usually and ordinarily means a group of people related to each other by blood or

marriage. (See The New Oxford American Dict. (2001) pp. 611-612.) Therefore, a

family member is someone related to the victim by marriage or blood. Defendant was

neither married to nor related by blood to Jane Doe.3 Therefore, the presumption under

section 136.1, subdivision (a)(3) does not apply to defendant, and defense counsel was


       3  Moreover, the Legislature has used the term cohabitant in statutes, including
section 273.5, which makes it a crime, among other things, to willfully inflict corporal
punishment on a spouse or cohabitant. (§ 273.5, subd. (a).) We may assume from the
fact the Legislature did not use that term in section 136.1, subdivision (a)(3), that it did
not intend to include cohabitants in the presumption.


                                              5
not deficient for failing to request the instruction. Likewise, because defendant was not a

family member of Jane Doe’s, the trial court was not required to instruct on the

presumption, either on request or sua sponte.

                                              2.

                             THREE STRIKES SENTENCE

       Defendant as previously noted raises three challenges to his three strikes sentence

of 25 years to life in state prison. First, defendant contends the trial court abused its

discretion when it refused his motion to reduce his conviction on count 7, the charge that

he attempted to dissuade a witness, from a felony to a misdemeanor. Next, defendant

contends the trial court should have exercised its discretion to strike one or more of

defendant’s prior serious felony convictions. Finally, defendant contends his sentence of

25 years to life in state prison constitutes cruel and unusual punishment. We disagree

with each of defendant’s claims.

                                 A. Section 17(b) Motion

       Defendant filed a combined motion asking the trial court either to exercise

discretion under section 17(b) to reduce his conviction on count 7 to a misdemeanor,

and/or to exercise discretion to strike all but one of defendant’s four prior serious felony

convictions, a so-called Romero4 motion. The objective of both motions was to avoid the

three strikes sentence of 25 years to life in state prison mandated by defendant’s four

prior serious or violent felony convictions. The trial court denied both motions.


       4   People v. Superior Court (Romero) (1996) 13 Cal.4th 497.


                                               6
        Section 17(b) provides in pertinent part, “When a crime is punishable, in the

discretion of the court, either by imprisonment in the state prison or . . . by fine or

imprisonment in the county jail, it is a misdemeanor for all purposes under the following

circumstances: [¶] (1) After a judgment imposing a punishment other than imprisonment

in the state prison . . . .”

        The jury apparently believed defendant’s claim that he and Jane Doe hit each

other, and engaged in what commonly is referred to as mutual combat. As a result, the

jury found defendant not guilty on four counts. On two of the three remaining counts, the

jury found defendant guilty of lesser included offenses, both of which are misdemeanors.

The only conviction that subjected defendant to punishment under the three strikes law

was his conviction on count 7 for attempting to dissuade a witness in violation of section

136.1, subdivision (a)(2), which is punishable either by imprisonment in county jail, in

which case the crime is a misdemeanor, or in state prison, in which case the crime is a

felony. In other words, the offense is a so-called “wobbler.” (See People v. Superior

Court (Perez) (1995) 38 Cal.App.4th 347, 355.)

        Defendant argued in the trial court as he does in this appeal that his conduct in

attempting to dissuade Jane Doe from testifying did not involve violence, or the threat of

violence, and therefore does not warrant felony punishment. The evidence showed

defendant wrote a letter to Jane Doe in which he told her not to come to court because she

might get caught by immigration and arrested. Defendant also apparently telephoned her

to say the same thing.




                                               7
       The trial court denied defendant’s section 17(b) motion after first denying

defendant’s motion to strike his prior felony convictions. The trial court found

defendant’s criminal history to be “abominable,” and noted, “Recidivism is a real

problem for him. He keeps getting out, committing new offenses, and going back. And,

of course, that’s exactly what the three-strike law addresses.” For the same reason, the

trial court denied defendant’s section 17(b) motion.5

       We review a trial court’s decision under section 17(b) for abuse of discretion.

(People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.) “[S]ince all

discretionary authority is contextual,” the factors a trial court should consider when

exercising discretionary authority under section 17(b) include “‘the nature and

circumstances of the offense, the defendant’s appreciation of and attitude toward the

offense, or his traits of character as evidenced by his behavior and demeanor at trial.’

[Citations.] When appropriate, judges should also consider the general objectives of

sentencing such as those set forth in California Rules of Court, [former] rule 410 [now

4.410].” (Id. at p. 978, fn. omitted.)

       In this case the trial court focused on defendant’s recidivism as the reason for

denying defendant’s request to impose the misdemeanor sentence on count 7. That fact is

       5 According to his probation report, defendant had been convicted of robbery in
1990, served two years in prison, and was paroled in 1992. In 1992, he was convicted of
a misdemeanor (fighting in public in violation of § 415) and was placed on probation for
two years. In 1993, while on probation, defendant was convicted of three counts of
robbery and sentenced to prison for 17 years eight months. He was paroled in 2006 and
violated parole seven months later; he was paroled in 2007 and again violated parole
within six months. After he completed the original prison term, defendant was paroled in
June 2008, and discharged from parole in 2010. He committed this crime in June 2010.


                                             8
an appropriate sentencing consideration. (See Cal. Rules of Court, rule 4.410(a) [general

objectives of sentencing include deterring defendant from committing a new crime].)

Moreover, the trial court could consider not only the fact that defendant attempted to

dissuade Jane Doe from testifying, but also the circumstances surrounding that crime.

Those circumstances include the fact that defendant had physically assaulted Jane Doe

while yelling he was going to kill her. Defendant not only punched and kicked Jane Doe,

he also threatened her and her son with a knife. We cannot say under these

circumstances that the trial court’s decision to deny defendant’s section 17(b) motion is

an abuse of discretion.

                                    B. Romero Motion

       The trial court, as previously noted, denied defendant’s request under section 1385

and Romero to strike his four prior felony convictions. “[A] trial court’s refusal or failure

to dismiss or strike a prior conviction allegation under section 1385 is subject to review

for abuse of discretion.” (People v. Carmony (2004) 33 Cal.4th 367, 375 (Carmony).)

       “In reviewing for abuse of discretion, we are guided by two fundamental precepts.

First, “‘[t]he burden is on the party attacking the sentence to clearly show that the

sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a

showing, the trial court is presumed to have acted to achieve the legitimate sentencing

objectives, and its discretionary determination to impose a particular sentence will not be

set aside on review.’” [Citations.] Second, a ‘“decision will not be reversed merely

because reasonable people might disagree. ‘An appellate tribunal is neither authorized

nor warranted in substituting its judgment for the judgment of the trial judge.’”’


                                              9
[Citations.] Taken together, these precepts establish that a trial court does not abuse its

discretion unless its decision is so irrational or arbitrary that no reasonable person could

agree with it.” (Carmony, supra, 33 Cal.4th at pp. 376-377.)

       The three strikes law does not create a discretionary sentencing choice, and instead

mandates a specific sentence of 25 years to life. (Carmony, supra, 33 Cal.4th at p. 376.)

“[T]he 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 light of this

presumption, a trial court will only abuse its discretion in failing to strike a prior felony

conviction allegation in limited circumstances. For example, an abuse of discretion

occurs where the trial court was not ‘aware of its discretion’ to dismiss [citation], or

where the court considered impermissible factors in declining to dismiss [citation].

Moreover, ‘the sentencing norms [established by the Three Strikes law may, as a matter

of law,] produce[] an “arbitrary, capricious or patently absurd” result’ under the specific

facts of a particular case. [Citation.]” (Carmony, at p. 378.) “[I]n ruling whether to

strike or vacate a prior serious and/or violent felony conviction allegation or finding

under the Three Strikes law, on its own motion, ‘in furtherance of justice’ pursuant to

Penal Code section 1385(a), or in reviewing such a ruling, the court in question must

consider whether, in light of the nature and circumstances of his present felonies and

prior serious and/or violent felony convictions, and the particulars of his background,

character, and prospects, the defendant may be deemed outside the scheme’s spirit, in


                                              10
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.)

       Defendant did not demonstrate that he falls outside the three strikes sentencing

scheme. In addressing this issue defendant urges us not to follow People v. Neely (2004)

124 Cal.App.4th 1258, which he contends was wrongly decided. Neely holds that

violation of any subdivision of section 136.1 is a serious felony within the meaning of

section 1192.7, subdivision (c), and therefore subject to three strikes sentencing.6

(People v. Neely, at p. 1266.) Although defendant asserts Neely was wrongly decided, he

does not support his assertion with any argument and therefore has not demonstrated the

validity of his assertion.

       In arguing the trial court abused its discretion by declining defendant’s request to

strike his prior felony convictions, defendant cites facts that show his desire to change his

life. Among other things, defendant cites testimony of family members at his sentencing

hearing regarding defendant’s loyalty to his family, his character for being a hardworking

person, and his dedication to his four-year-old disabled son. Defendant also points out

that he admitted to the judge at his sentencing hearing that he had made wrong choices

and was now determined to abide by the law. To that end defendant notes before his

arrest in this case, he had been gainfully employed at a gas station and had also been


       6  Because it is a serious felony, the recent amendments to the three strikes law
resulting from passage in November 2012 of Proposition 36, do not apply to defendant.
(See § 667, subd. (e)(2)(C).)


                                             11
working at a slaughterhouse in central California. Defendant also had sought and

obtained admission to Delancey Street Foundation, a residential program for former

alcoholics, drug addicts, and convicts, who wanted to turn their lives around and become

productive, responsible members of society. Defendant provided the court with copies of

certificates of completion for several classes he had taken that included substance abuse

and practice tests to obtain a general education diploma, a so-called GED.

       Defendant has shown he wants to change his life. However, he did not address

any aspect of his four prior serious felony convictions, nor did he mention his

background and the circumstances that caused him to commit the prior serious felonies.

(See People v. Williams, supra, 17 Cal.4th at p. 161.) “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. Of course, in such an extraordinary case—where the relevant factors

described in Williams, supra, 17 Cal.4th 148, manifestly support the striking of a prior

conviction and no reasonable minds could differ—the failure to strike would constitute an

abuse of discretion.” (Carmony, supra, 33 Cal.4th at p. 378.)

       Defendant has not made the required showing in this case. Although his sentence

undoubtedly is harsh, we cannot say the trial court abused its discretion by imposing the

mandatory three strikes sentence in this case.


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                                              3.

                       CRUEL AND UNUSUAL PUNISHMENT

       Defendant contends his sentence of 25 years to life in state prison violates both the

state and federal constitutional prohibitions against cruel and unusual punishment. At the

outset, we reject the Attorney General’s argument defendant forfeited this claim because

he did not raise it in the trial court during his sentencing hearing. People v. Gutierrez

(2012) 209 Cal.App.4th 646, which the Attorney General cites to support the forfeiture

claim, is no longer citable because the Supreme Court granted review on January 3, 2013,

S206365. Moreover, we are not inclined to apply forfeiture in this context. Therefore,

we will address defendant’s cruel and unusual punishment claim.

                                    A. State Standard

       Under the California Constitution, as the Supreme Court explained in People v.

Dillon (1983) 34 Cal.3d 441, “a statutory punishment may violate the constitutional

prohibition [against cruel and unusual punishment] not only if it is inflicted by a cruel or

unusual method, but also if it is grossly disproportionate to the offense for which it is

imposed.” (Id. at p. 478.) “A penalty offends the proscription against cruel and unusual

punishment when it is ‘so disproportionate to the crime for which it is inflicted that it

shocks the conscience and offends fundamental notions of human dignity.’ [Citations.]”

(People v. King (1993) 16 Cal.App.4th 567, 571, quoting In re Lynch (1972) 8 Cal.3d

410, 424.) “A tripartite test has been established to determine whether a penalty offends

the prohibition against cruel and unusual punishment. First, courts examine the nature of

the offense and the offender, ‘with particular regard to the degree of danger both present


                                             13
to society.’ Second, a comparison is made of the challenged penalty with those imposed

in the same jurisdiction for more serious crimes. Third, the challenged penalty is

compared with those imposed for the same offense in other jurisdictions. [Citations.]”

(People v. King, at p. 572, citing In re Lynch, at pp. 425-427, In re Reed (1983) 33 Cal.3d

914, 923, and People v. Hernandez (1985) 169 Cal.App.3d 282, 288.)

                           1. Nature of the Offense/Offender

       Defendant does not discuss his past or his prior offenses and therefore has not

addressed the nature of the offender. Regarding the nature of the offense, defendant

again urges us not to follow People v. Neely, supra, 124 Cal.App.4th 1258, which holds

that all violations of section 136.1, even those that do not involve violence or threats of

violence, are serious felonies for purposes of three strikes sentencing. We previously

stated, and will state again here, we are not inclined to disagree with People v. Neely.

There are sound public policy reasons to consider any effort to dissuade a witness from

testifying a serious felony within the meaning of the three strikes law.

                        2. Comparison with Other Jurisdictions

       Defendant compares his three strikes sentence with the sentence he might have

received under recidivist statutes in other states and contends his sentence is more severe.

“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. It does not require ‘conforming our Penal Code to the “majority

rule” or the least common denominator of penalties nationwide.’ [Citation.] Otherwise,


                                             14
California could never take the toughest stance against repeat offenders or any other type

of criminal conduct.” (People v. Martinez (1999) 71 Cal.App.4th 1502, 1516, quoting

People v. Wingo (1975) 14 Cal.3d 169, 179.)

       3. Comparison with Sentences for More Serious Offenses in California

       Defendant does not address this issue. His discussion consists of the single

observation that his sentence is the same as if he had committed first degree murder and

more than if he had committed second degree murder. Although the observation is true,

it is also inapt. Defendant’s sentence of 25 years to life is based not just on his current

offense, but also on the fact of his recidivism. (See People v. Sullivan (2007) 151

Cal.App.4th 524, 571.) Under the three strikes law, all qualifying offenders are treated

similarly.

       In short, defendant has failed to demonstrate his punishment violates the

California Constitution.

                                   B. Federal Standard

       Defendant’s claim fares no better under the federal Constitution, which does not

require strict proportionality between crime and punishment. “‘Rather, [the Eighth

Amendment] forbids only extreme sentences that are “grossly disproportionate” to the

crime.’” (People v. Cartwright (1995) 39 Cal.App.4th 1123, 1135; see also Harmelin v.

Michigan (1991) 501 U.S. 957, 1001.)

       The United States Supreme Court has upheld statutory schemes that result in life

imprisonment for recidivists upon a third conviction for a nonviolent felony in the face of

challenges that such sentences violate the federal constitutional prohibition against cruel


                                              15
and unusual punishment. (See Ewing v. California (2003) 538 U.S. 11, 18, 30-31 [25-

year-to-life sentence under the three strikes law for the theft of three golf clubs worth

$399 apiece]; Lockyer v. Andrade (2003) 538 U.S. 63 [two consecutive 25-year-to-life

terms for two separate thefts of videotapes worth less than $100].) The protection

afforded by the Eighth Amendment is narrow. It applies only in the “‘exceedingly rare’”

and “‘extreme’” case. (Ewing v. California, supra, 538 U.S. at p. 21.)

       Defendant has not demonstrated this is the exceedingly rare and extreme case that

violates the federal Constitution.

                                      CONCLUSION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS




                                                                 McKINSTER
                                                                                 Acting P. J.

We concur:



RICHLI
                           J.



MILLER
                           J.




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