Filed 7/21/16 P. v. Pangborn CA2/2
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 TWO


THE PEOPLE,                                                          B264258

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. GA089421)
         v.

DAVID PANGBORN,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County.
Michael D. Carter, Judge. Reversed in part, remanded with directions, and affirmed in
part.


         Rachel Lederman, under appointment by the Court of Appeal, for Defendant and
Appellant.


         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Michael R. Johnsen and
Steven E. Mercer, Deputy Attorneys General, for Plaintiff and Respondent.


                  ___________________________________________________
       Defendant David James Pangborn appeals from the judgment entered following a
jury trial that resulted in his conviction of corporal injury to cohabitant (Pen. Code,
§ 273.5, subd. (a); count 1);1 criminal threats (§ 422, subd. (a); count 2); and assault by
means likely to produce great bodily injury (§ 245, subd. (a)(4); count 3). The jury found
true the allegations he had suffered two prior serious felony convictions (§ 667, subd.
(a)(1)) that also qualified as strikes under the Three Strikes law (§§ 667, subds. (b)-(i),
1170.12, subds. (a)-(d)) and he had served a prior prison term (§ 667.5, subd. (b)). The
jury found not true the allegation that during the commission of the count 2 offense
defendant used a deadly or dangerous weapon (knife; § 12022, subd. (b)(1)).
       The trial court sentenced defendant to prison on count 1 to six years, or double the
three-year middle term, and, consecutively on count 2, to 25 years to life, plus a one-year
prior prison term and a five-year prior serious felony enhancement. The court suspended
imposition of sentence on count 3 (§ 654). Thus, the aggregate term was 37 years to life.
       Defendant contends his sentence must be reversed as cruel or unusual (or both)
punishment (U.S. Const, 8th Amend.; Cal. Const., art. I, §17).2 We find no constitutional
infirmity. The fatal fallacy of this claim lies in his faulty premise that his sentence is



1      All further section references are to the Penal Code.
2       Respondent contends defendant forfeited his claim of unconstitutionality by
failing to raise the claim below. We disagree. The record reflects defendant moved to
strike his 2002 robbery conviction (but not his 2012 one) in the interests of justice (§1385;
People v. Superior Court (Romero) 13 Cal.4th 497). Respondent’s opposition expressly
addressed the issue of cruel and unusual punishment as lacking merit. Further, at the
hearing, defense counsel argued in view of “the very shaky state of the evidence,” “the
equities and fairness [considerations] would not seem to point toward . . . a sentence” of
25 years to life. Referring to “defendant’s constitutional rights [under the] Eighth
Amendment,” the court asked defense counsel: “[I]s this cruel and unusual punishment to
sentence the defendant to 25 to life based on his conduct?” After commenting that the
court “even considered . . . whether or not this would be deemed cruel and unusual
punishment,” the trial court denied the Romero motion. Under these circumstances, we
conclude that requiring defendant himself to raise his cruel or unusual (or both)
punishment constitutional claims below would be a futile gesture and imprudently
elevating form over substance. We decline to do so.

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unconstitutionally lengthy in view of the relatively nonviolent and nonserious nature of his
current crimes. The predominate portion of his sentence, which consists of an
indeterminate term of 25 years to life, however, was imposed based on his recidivist
violent and serious criminal conduct and is mandated under the Three Strikes law. In
Ewing v. California (2003) 538 U.S. 11 (Ewing), the United States Supreme Court upheld
the Three Strikes law mandate of a 25-year-to-life sentence against a challenge of cruel
and unusual punishment (U.S. Const., 8th Amend.). (Ewing, at pp. 30-31.) Under the
circumstances of this case, we have no occasion to revisit that holding. Further, his
sentence is not cruel or unusual punishment in violation of the state Constitution (Cal.
Const., art. I, § 17).
       Nonetheless, we reverse defendant’s sentence and remand the matter for
resentencing for other reasons. We invited the parties to file supplemental briefing on
these issues: Did the trial court commit unauthorized sentencing error in staying
imposition of sentence on count 3; if so, should defendant’s sentence be reversed and the
matter remanded for resentencing; and, if so, should the trial court impose a second strike,
rather than a third strike, sentence, because the jury was not asked to find and did not find
defendant used a firearm or personally inflicted great bodily injury on the victim in
committing the count 3 offense? Additionally, did the trial court commit unauthorized
sentencing error in dismissing the second five-year prior felony, and, if so, must the
second five-year serious felony be imposed when the trial court recalculates his sentence
on remand? We have received their responses.
       In view of the parties’ concession, which we find well founded, we reverse
defendant’s sentence and remand the matter for resentencing. We direct the trial court to
vacate its order suspending imposition of sentence on count 3, impose a sentence on
defendant as a second striker, and suspend execution of that sentence. The trial court also
is directed to vacate its order dismissing the second five-year prior felony and to impose
the five-year prior felony enhancement. We otherwise affirm the judgment.




                                              3
                                     BACKGROUND
       Maria F. started dating defendant in November 2013, and shortly afterward they
moved in together. They also used crystal methamphetamine together. Defendant was
physically abusive to her.
       On February 13, 2016, defendant and Maria F. stayed overnight with Randy
Ramirez and Ashley, his girlfriend, at Ramirez’s house. For Valentine’s Day, the
next day, defendant and Mara F. planned to go out for dinner and watch a movie
with the other couple.
       In the morning, defendant and Maria F. argued outside their upstairs bedroom.
As defendant pulled her into the bathroom, he told her, “Fuck you bitch, this is going
to be your fucking valentine.” He slapped her face and hit her legs, back, and head
with a closed fist. He also choked her with both hands until she blacked out.
Maria F. crouched in a corner and tried to protect herself. She did not scream
because of his threat to kill her.
       When Ramirez knocked on the door, defendant opened the door. He
momentarily grabbed Maria F.’s hair, but she was able to flee downstairs. Ramirez
told defendant to tell Maria F., who was crying and in pain, to go outside. Maria F.
and defendant then sat on a bench on the front porch and resumed arguing. He hit her
repeatedly. At some point, he choked her with one hand around her neck. Maria F.
again passed out. Defendant threatened Maria F. that she had “better not do nothing
stupid because you know what’s going to happen” and he would kill her.3
       He told Maria F. to take off her shoes to prevent her from leaving. After she
complied, he threw them down on the porch. Saying she was not going anywhere but
needed an Advil, Maria F. grabbed her shoes and went inside. While defendant was
upstairs, Maria escaped using a side door.



3     The jury rejected Maria F.’s testimony that defendant held a knife against her
stomach by finding not true the knife allegation (§ 12022, subd. (b)(1)).


                                             4
       At the hospital, Dr. Jeremy Williams determined that Maria F. had suffered
blunt force trauma to the left side of her body, face, upper arms, biceps, lower back,
and neck region. There were also signs she might have been choked because her
neck was tender.
       Maria F., who was afraid, changed her phone number about five times. She
did not stay in one place because defendant “let people know to hurt me if they
found me.” A male known as “Oso” related that defendant instructed him to kill
her to stop her from going to court.
       As defendant awaited trial, the Los Angeles County Sheriff’s Department
confiscated a handwritten note from his cell that read: “As all know I am about to
go to trial next month for domestic and criminal threats. Now this bitch Candy is
testifying on me and I’m going to beat it. But the point is this. I personally told Oso
about this bitch, her name. Showed him a picture so he knew what was up with this
bitch. I even told him if he runs into her out there to do me the favor and handle it.”
       At trial, the defense asked Leticia R., Maria F.’s mother, whether Maria F.
was a truthful person. Leticia testified that it “depends” and once Maria F. lied
about Leticia to Social Services. She also lied about coming “right back” home,
because she would “take off for two to three months.”
       Defendant testified that he and Maria F. used methamphetamine while
staying at the Burbank house. On the morning of February 14, 2013, “Martha,” a
good friend, came over, because he owed her money. As she slapped his face, she
asked, “Who is this bitch?” Maria F. responded, “Who are you calling a bitch?” A
physical fight broke out and ceased only when defendant and Ramirez separated the
women. Later, Maria F. repeatedly asked defendant for drugs, and he refused.
Angry, she threatened to call the police and report falsely that he hit her. Defendant
denied threatening or striking Maria F.
       Ramirez testified that during the fight that day, Martha, a “big girl,” punched
Maria F. several times with closed fists. He denied ever seeing defendant threaten,
slap, or choke Maria F.

                                              5
                                        DISCUSSION
       Defendant contends his prison sentence of 37 years to life is cruel and unusual
punishment under the federal Constitution and cruel or unusual punishment under the state
Constitution. When viewed in context, it becomes evident that his sentence is neither
cruel or unusual (or both) punishment.
       1. Sentence Not Cruel and Unusual Punishment Under Federal Constitution
       Contrary to defendant’s claim, his sentence does not constitute cruel and unusual
punishment proscribed by the federal Constitution (U.S. Const., 8th Amend.).
Defendant’s aggregate sentence consists of six years, or double the three-year middle
term, on count 1; a sentence of 25 years to life on count 2; a five-year prior serious felony
enhancement; and a one-year prior prison term enhancement. Although his claim is that
his aggregate sentence is unconstitutional, the gist of his claim focuses on the 25-year-to-
life component of the sentence. His constitutional claim is without merit, because he fails
to apprehend that the principal portion of his sentence, i.e., 25 years to life, is not based
solely on his conviction in count 2 for making criminal threats (§ 422, subd. a)) but also
on his recidivist violent and serious criminal conduct reflected in his prior two convictions
for robbery (§ 211), which also constitute strikes under the Three Strikes law.
       The United States Supreme Court has upheld the Three Strikes law mandate of a
25-year-to-life sentence against a challenge of cruel and unusual punishment (U.S. Const.,
8th Amend.) where the triggering offense was the nonviolent theft of three golf clubs
valued at $1,200. (Ewing, supra, 538 U.S. at pp. 28, 30-31.) Moreover, defendant
acknowledges “California Courts have repeatedly denied challenges to convictions under
the Three Strikes Law as cruel and unusual” and, in particular, “a number of cases have
held that a 25-to-life sentence under the Three Strikes Law was not cruel and unusual
punishment under the Eighth Amendment.” He contends the “individualized
circumstances” of this case, however, compel a contrary conclusion. We disagree.
       Defendant challenges the victim’s trial testimony as “dubious, at best, and totally
contradicted by the defense, at worst,” and asserts, “‘because the penalty is imposed for
the current offense, the focus must be on the seriousness of that offense. Past offenses do

                                               6
not themselves justify imposition of an enhanced sentence for the current offense.’
(People v. Carmony (2005) 127 Cal.App.4th 1066, 1079 [Carmony II].) In other words,
all care must be given to ensure that [defendant] is not ‘actually being punished again for
his prior offenses.’ (Ibid.)”
       Initially, we point out that defendant misapprehends the standard of review.
“[W]e review the entire record in the light most favorable to the judgment to determine
whether it contains evidence that is reasonable, credible, and of solid value from which a
reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.
[Citation.] ‘Conflicts and even testimony which is subject to justifiable suspicion do not
justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury
to determine the credibility of a witness and the truth or falsity of the facts upon which a
determination depends.’ [Citation.] Unless it describes facts or events that are physically
impossible or inherently improbable, the testimony of a single witness is sufficient to
support a conviction. [Citation.]” (People v. Elliott (2012) 53 Cal.4th 535, 585.) In
short, it was for the jury to determine credibility, and, in this instance, the jury credited
the testimony of the victim over defendant’s version. That the jury found untrue the use
of a knife allegation and the court found the victim did not suffer great bodily injury do
not serve to undermine the jury’s guilty verdicts.
       Other than contesting the sufficiency of the evidence to support his convictions,
defendant does not describe any factual circumstances that would compel the conclusion
that his sentence constitutes cruel and unusual punishment.4


4      Defendant compares the Three Strikes law with recidivist statutes in other states
and draws the conclusion that “California is alone in permitting the commission of any
type of current felony, including extremely minor felonies, to be of an aggregated type”
and “requires such rigid application and lengthy imprisonment, regardless of the nature of
the offense or circumstances in mitigation.” However, he “recognizes that it has been
held that even if California statutes impose the longest sentences in the nation, it does not
mean defendants’ punishment is cruel and unusual. (People v. Martinez (1999) 71
Cal.App.4th 1502, 1516.)” He nonetheless invites this court to depart from that holding.
We decline. The circumstances here do not warrant such revisiting.


                                               7
       In In re Coley (2012) 55 Cal.4th 524 (Coley), our Supreme Court noted “[t]he lead
opinion in Ewing (authored by Justice O’Connor) . . . did not eliminate the possibility that
some triggering offense, although designated a felony under California law, might be so
minor and unrelated to the goal of deterring recidivism that a 25-year-to-life sentence
would be ‘grossly disproportionate’ and constitute cruel and unusual punishment under
the Eighth Amendment, even when imposed upon a defendant with a serious criminal
record.” (Id. at p. 529.)
       In urging the individual circumstances here present such an instance of
unconstitutionality, defendant relies on Carmony II. His reliance is misplaced. As noted
in Coley, that case involved “a two-to-one decision that a 25-year-to-life sentence under
the Three Strikes law constituted cruel and/or unusual punishment, in violation of the
federal and state Constitutions, as applied to a defendant whose triggering offense was
the failure to annually update his sex offender registration within five working days of his
birthday. The defendant in Carmony II had properly registered as a sex offender at his
current address one month before his birthday, had continued to reside at the same
address throughout the relevant period, had remained in contact with his parole agent,
and was arrested at that same address by his parole agent one month after his birthday.
Observing that “because defendant did not evade or intend to evade law enforcement
officers, his offense was the most technical and harmless violation of the registration law
we have seen” ([Carmony II, supra,] 127 Cal.App.4th at p. 1078), the majority opinion in
Carmony II concluded that, notwithstanding the defendant’s record of serious prior
offenses, the imposition of a 25-year-to-life sentence was grossly disproportionate to the
gravity of the defendant’s offenses and violated the constitutional prohibition of cruel
and/or unusual punishment.” (Coley, supra, 55 Cal.4th at pp. 529-530.)
       Although concluding “we need not and should not rest our holding upon a
determination that the Court of Appeal opinion in Carmony II was wrongly decided,” our
Supreme Court held in Coley that a sentence of 25 years to life imposed on a defendant
who was convicted of failing to update his sex offender registration within five working



                                             8
days of his birthday was not cruel and unusual punishment. (Coley, supra, 55 Cal.4th at
p. 530.)
       The Court reasoned: “The conduct of petitioner in this case, as found by the trial
court, is clearly distinguishable in a significant respect from the conduct of the defendant
in Carmony II. Unlike the defendant in Carmony II, who had very recently registered at
his current address and who the Court of Appeal found ‘did not evade or intend to evade
law enforcement officers’ (Carmony II, supra, 127 Cal.App.4th at p. 1078), the trial court
in this case, in refusing to strike any of petitioner’s prior convictions and in imposing a
25-year-to-life sentence under the Three Strikes law, found that petitioner’s triggering
offense was not simply a minor or technical oversight by a defendant who had made a
good faith effort to comply with the sex offender registration law. Rather, the court
found that petitioner had never registered as a sex offender at his current address and had
knowingly and intentionally refused to comply with his obligations under the sex
offender registration law. [¶] Petitioner’s conduct, as found by the trial court,
demonstrated that, despite the significant punishment petitioner had incurred as a result
of his prior serious offenses, he was still intentionally unwilling to comply with an
important legal obligation, and thus his triggering criminal conduct bore both a rational
and substantial relationship to the antirecidivist purposes of the Three Strikes law. Given
that relationship and the extremely serious and heinous nature of petitioner’s prior
criminal history, we conclude that, under Ewing, supra, 538 U.S. 11, the imposition of a
25-year-to-life sentence does not constitute cruel and unusual punishment under the
circumstances of this case.” (Coley, supra, 55 Cal.4th at pp. 530-531.)
       The factual circumstances of this case align with those in Coley rather than
Carmony II in the sense that defendant’s current conviction in count 2 for making
criminal threats did not arise from an inadvertent evasion of the law but rather was the
product of defendant’s conscious and deliberate commission of a crime, which conduct
was not deterred by his prior incarceration for his recidivist violent and serious criminal
conduct. Further, this was not simply an isolated instance of a spontaneous outburst on
the part of defendant. Rather, his criminal threats against Maria F. reflect defendant’s

                                              9
criminal way of life. While in jail awaiting trial, defendant attempted to cause a third
party, Oso, to kill the victim to prevent her from testifying in court against defendant.
       2. Sentence Not Cruel or Unusual Punishment Under State Constitution
       Defendant contends his sentence is grossly disproportionate in violation of the
cruel or unusual proscription of the California Constitution (Cal. Const., art. I, § 17). 5
He has failed to demonstrate any unconstitutional disproportionality.
       “To determine whether a sentence is cruel or unusual under the California
Constitution as applied to a particular defendant, a reviewing court must examine the
circumstances of the offense, including motive, the extent of the defendant’s involvement
in the crime, the manner in which the crime was committed, and the consequences of the
defendant’s acts. The court must also consider the personal characteristics of the
defendant, including his or her age, prior criminality, and mental capabilities. [Citation.]
If the penalty imposed is ‘grossly disproportionate to the defendant’s individual
culpability’ [citation], so that the punishment ‘“‘shocks the conscience and offends
fundamental notions of human dignity’”’ [citation], the court must invalidate the sentence
as unconstitutional.” (People v. Lucero (2000) 23 Cal.4th 692, 739-740 (Lucero).)
       Defendant fails to point out any factual circumstances that would compel the
conclusion that a sentence of 25 years to life in this instance is so shocking and offensive
that such punishment constitutes cruel or unusual punishment. Maliciously, defendant
cornered Maria F., beat her with a closed fist, and choked her twice until she became
unconscious. These acts of violence and brutality were accompanied by defendant’s
threats to kill her. In short, 25 years to life for making these criminal threats “is not
‘grossly disproportionate to the defendant's individual culpability’ [citation], nor does it
‘“‘shock[] the conscience and offend[] fundamental notions of human dignity.’”’
[Citation.]” (Lucero, supra, 23 Cal.4th at. p. 740.)


5       Defendant, who admittedly was almost 33 years old, was not a juvenile at the time
of his crimes. We therefore do not discuss his citation and reliance on United States
Supreme Court cases involving a juvenile, which are factually inapplicable.


                                              10
       3. Reversal of Sentence and Remand for Further Proceedings Mandated
       In response to our invitation for supplemental briefing, the parties concede, as to
count 3, the trial court committed unauthorized sentencing error (People v. Scott (1994) 9
Cal.4th 331, 354) by suspending imposition of sentence; defendant’s sentence must be
reversed; the trial court must impose a second strike sentence on count 3 (see People v.
Banuelos (2005) 130 Cal.App.4th 601, 605; see generally People v. Johnson (2015) 61
Cal.4th 674, 680-681, 689-690); and the court must then stay execution of that sentence
(§ 654; People v. Jones (2012) 54 Cal.4th 350, 353). As for count 2, the parties concede
that the trial court also committed unauthorized sentencing error by dismissing the second
five-year prior serious felony (§1385, subd. (b); People v. Garcia (2008) 167 Cal.App.4th
1550, 1560-1561) and when the trial court recalculates defendant’s sentence on remand,
the court must impose the second five-year prior serious felony enhancement.
                                      DISPOSITION
       Defendant’s sentence is reversed, and the matter is remanded for resentencing.
The trial court is directed to impose a second strike on count 3 and then stay execution of
that sentence. The trial court is also directed to impose the second five-year prior serious
felony enhancement. In all other respects the judgment is affirmed.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.


                                           BOREN, P.J.
We concur:


       CHAVEZ, J.


       HOFFSTADT, J.




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