Filed 1/12/15 P. v. Hill CA2/7
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


THE PEOPLE,                                                          B251245

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. LA073059)
         v.

KENNETH DEWYANE HILL, et al.,

         Defendant and Appellant.



         APPEAL from judgments of the Superior Court of Los Angeles County, Michael
K. Kellogg, Judge. Affirmed as modified as to Defendant and Appellant Kenneth Hill.
Affirmed as to Defendant and Appellant Cynthia Vasquez.
         Lenore De Vita, under appointment by the Court of Appeal, for Defendant and
Appellant Kenneth Hill.
         Jolene Larimore, under appointment by the Court of Appeal, for Defendant and
Appellant Cynthia Vasquez.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Steven E. Mercer and
Tannaz Kouhpainezhad, Deputy Attorneys General, for Plaintiff and Respondent.


                                          _______________________
       Kenneth Hill and Cynthia Vasquez were convicted of attempted first degree
residential burglary (Pen.1 Code, §§ 664, 459). On appeal, Hill argues that the evidence
was insufficient to support the conviction; that the trial court erred in refusing to instruct
the jury on the crime of trespass as a lesser included offense; that the court erred when it
failed to inquire of the prosecutor about instructing the jury on trespass; and that he
received insufficient presentence custody credits. Vasquez also argues that the trial court
erred in denying the request to instruct the jury on trespass; that the court abused its
discretion in failing to strike her prior strike conviction; and that her prison term
constitutes cruel and unusual punishment. We modify Hill’s presentence custody credit
award but otherwise affirm.

                  FACTUAL AND PROCEDURAL BACKGROUND

       On January 14, 2013, Thomas Ryan watched through his kitchen window as Hill
and Vasquez approached a house across the street from his home. Vasquez, dressed in
jeans and a red hooded sweatshirt and holding a white bag, was standing on the front
porch; although Ryan could not see her hands, it appeared to him that she had opened and
looked in the mailbox next to the front door. Vasquez then walked down the driveway to
where Hill was standing and spoke with him. Hill was wearing sweat pants and a gray
hooded sweatshirt.
       Ryan watched as the two looked around and pulled the hoods on their sweatshirts
up over their heads. Vasquez walked two houses down to the corner, and Hill jumped
over the fence of the house across the street and into the backyard. Ryan, believing that
he might be seeing a burglary in progress, told his wife what he had just seen and they
discussed whether to call the police. Ryan picked up his cell phone, walked outside,
began recording, and approached Vasquez. When he greeted her with his phone visible,
she “jumped up and took off” in the opposite direction. Ryan told her, “You better get on
the phone or do whatever you have to do. Tell him—tell him to get out of the house
now.” He tried to maneuver so he could film her face again, and he followed her as she

1      Unless otherwise indicated, all further statutory references are to the Penal Code.

                                               2
ran down the street. Ryan yelled, “I have you on video. Tell him to get out of the house
now. The police are on their way.” Vasquez ran toward the house, yelling to Hill to get
out. Ryan ran after her, continuing to film. Ryan’s wife called 911.
      Hill jumped the fence and began running down the street. Ryan saw that he had
one hand in his pocket, which made him concerned that Hill either had a weapon or had
taken something from the home. Ryan, now filming Hill, yelled at him that the police
were coming and to drop what was in his hand.
      Ryan slowed down as Hill and Vasquez ran away. He returned to his home and
waited for the police to arrive. As he waited, however, Ryan began to wonder whether
Hill and Vasquez had headed to a nearby bus station. He drove down to the bus station,
where he saw Vasquez, no longer wearing her red hooded sweatshirt, sitting on a bench.
Ryan then observed Hill crouched in the bushes, and watched as Hill removed his
sweatshirt and sweat pants, revealing a t-shirt and shorts underneath. Ryan parked where
he could see the two and called 911.
      While Ryan watched, Hill and Vasquez boarded a bus. Then, a transit police
officer began escorting people off the bus who wore clothing like the suspects had been
wearing. The 911 operator instructed Ryan to go to the bus station, where he identified
Vasquez and Hill.
      When Jamie Cantor, the owner of the home that Vasquez and Hill had targeted,
arrived home, she found that her sliding screen window to the backyard, which had been
closed when she left home, was now open. The screen was off its track and the frame
was bent; it could not be closed. The gate to her backyard dog run, which was ordinarily
held closed with a padlock passed through the gate but not locked, was now wide open,
and the padlock was on the grass next to her rose bushes. The weather-stripping around
the back door frame was damaged in the area of the deadbolt.
      Vasquez and Hill were charged with attempted residential burglary. Both
defendants were alleged to have prior convictions and prior prison terms for the purposes
of sentence enhancements.



                                            3
       The two defendants were tried together by jury. At trial, Ryan testified to the
events of January 14, 2013; the jury also saw his cell phone footage and security camera
footage from the bus station. Vasquez requested that the jury be instructed on the lesser
related offense of trespass, but the trial court denied the request.
       The jury convicted Hill and Vasquez of attempted residential burglary. Vasquez
and Hill both admitted their prior convictions. Both requested that their prior strikes be
stricken, and in each case the court refused. Hill was sentenced to six years for the
attempted burglary, calculated by dividing the upper term for burglary in half because the
offense was an attempt (§ 664, subd. (a)), then doubling the resultant three years under
the Three Strikes Law, sections 667, subdivisions (b) through (i) and 1170.12,
subdivisions (a) through (d).2 The court imposed an additional consecutive five-year
sentence enhancement under section 667, subdivision (a)(1) Vasquez was sentenced to
four years for the attempted burglary, calculated by halving the middle term of four years
because the offense was an attempt, then doubling that two-year term pursuant to the
Three Strikes Law.3 The court also imposed a five-year sentence enhancement pursuant
to section 667, subd. (a)(1). Both appeal.




2       The abstract of judgment, while correctly stating the final six-year term, represents
Hill’s sentence as a upper term of six years rather than a term of three years doubled
pursuant to the Three Strikes Law. Where there is a discrepancy between the court’s oral
pronouncement and the minute order or abstract of judgment, the oral pronouncement
controls. (People v. Mitchell (2001) 26 Cal.4th 181, 185-186.)

3      The abstract of judgment for Vasquez is inconsistent with the sentence as orally
pronounced because it represents her sentence on the attempted burglary as a middle term
sentence of four years rather than as a two-year term doubled because of a prior strike.
The court’s oral pronouncement of sentence is controlling. (People v. Mitchell, supra, 26
Cal.4th at pp. 185-186.)

                                               4
                                      DISCUSSION

       I.     Sufficiency of the Evidence to Support Conviction

       Hill argues that the evidence was insufficient to sustain the attempted residential
burglary conviction because there was insufficient evidence that he had the specific intent
to steal and take away someone else’s property. (CALJIC No. 14.50.) When reviewing a
claim of insufficient evidence, an appellate court must determine, in light of the entire
record, whether substantial evidence supports the trier of fact’s conclusion. (People v.
Hughes (2002) 27 Cal.4th 287, 370.) Substantial evidence is evidence that is credible
and of solid value, from which a rational trier of fact could find beyond a reasonable
doubt that the accused committed the offense. (People v. Wilson (2008) 44 Cal.4th 758,
806.) The reviewing court presumes every fact in support of the judgment the trier of
fact could have reasonably deduced from the evidence. (Ibid.) The standard of review is
the same regardless whether the evidence is circumstantial or direct. (People v. Stanley
(1995) 10 Cal.4th 764, 792.) Circumstantial evidence may be sufficient to connect a
defendant with the crime and to prove his or her guilt beyond a reasonable doubt. (Id. at
p. 793.) Moreover, “the testimony of a single witness is sufficient to uphold the
judgment even if it is contradicted by other evidence, inconsistent or false as to other
portions.” (People v. Leigh (1985) 168 Cal.App.3d 217, 221; see also Evid. Code,
§ 411.)
       Here, there was sufficient circumstantial and direct evidence to support the
inference that Hill attempted to enter the Cantor home with the specific intent to commit
theft. Evidence was presented to the jury that the incident began with Hill standing as a
lookout on the sidewalk while Vasquez knocked on the door to determine whether
anyone was at home. When it appeared that the house was empty, Hill and Vasquez had
a discussion, simultaneously raised their sweatshirt hoods over their heads, and headed
off in different directions. Hill jumped over a high fence and entered the backyard,
where he was not visible for several minutes. Although the evidence relating to the
damage to Cantor’s home was contested, the evidence permitted the conclusion that Hill

                                              5
attempted to enter the house through the sliding glass window or door and that he opened
and bent the screen door in the process. The evidence also permitted the conclusion that
Hill next attempted to enter through the house’s back door, removing the unlocked
padlock from the gate to the dog run, and then approaching the back door, tearing the
weather stripping near the lock. The evidence also showed that Hill fled when Vasquez
called out to him, that he jumped over the fence again, fled on foot through the
neighborhood to a bus stop, and that he crouched in the bushes attempting to change his
appearance by removing the clothes he had been wearing. All of this evidence was
sufficient to permit the jury to infer that Vasquez and Hill were viewing Cantor’s house
for a burglary with the initial steps of knocking on the door, putting their hoods on to
escape possible identification, and having Vasquez act as a lookout while Hill jumped the
tall fence. It was also reasonable for the jury to infer that the moving of the screen,
opening of the dog run gate, and the cutting of the weather stripping near the lock of the
back door were all done to gain entry into the house to perpetrate a theft. Moreover,
Hill’s flight from the scene, concealment in bushes and discarding of clothing, and then
his entry on a bus in an attempt to avoid apprehension all tend to reveal his consciousness
of guilt. (See In re Anthony M. (1981) 116 Cal.App.3d 491, 500-501 [unexplained flight
from burglary scene implies entry with unlawful intent].)
       On appeal, Hill’s counsel puts forth a theory that Hill and Vasquez were at the
Cantor house to “spice[] up their sex lives.” Perhaps the plan was for Hill to
“voyeuristically peer at a woman in a state of undress,” or any woman at all. “Maybe,”
Hill’s counsel proposes, “he masturbates, knowing Vasquez is waiting patiently outside
the property, thinking about what [Hill] is doing. Then after watching for awhile [sic],
they go off together to have sex.” He also suggests that maybe Vasquez and Hill were
going to be intimate in the backyard, or that perhaps Vasquez and Hill had argued and
that Hill threw Vasquez’s phone into the backyard, leading to the need to retrieve it.
None of these theories is consistent with the evidence of attempted entry into the house.
More importantly, however, if the circumstances reasonably justify the trier of fact’s
findings, reversal of the judgment is not warranted simply because the circumstances

                                              6
might also reasonably be reconciled with a contrary finding. (People v. Lindberg (2008)
45 Cal.4th 1, 27.) Because the evidence supported an inference that Hill attempted a
residential burglary, the conviction is supported by substantial evidence.


       II.       Failure to Instruct on Crime of Trespass

       Hill contends that the trial court erred by not instructing the jury on the crime of
trespass because it was a lesser included offense of burglary under the accusatory
pleading test. Vasquez argues that the trial court erred in denying her request to instruct
the jurors on trespass as a lesser included offense of attempted burglary, asserting that
under both the elements and accusatory pleading tests, trespass was a lesser included
offense of attempted burglary. We review claims that a trial court failed to instruct on a
lesser included offense de novo (People v. Waidla (2000) 22 Cal.4th 690, 733), and find
no error here.
       A trial court has a sua sponte duty to instruct on necessarily included lesser
offenses if there is substantial evidence that the defendant is guilty only of the lesser
offense. (People v. Birks (1998) 19 Cal.4th 108, 118 (Birks).) In contrast, “[a] defendant
has no right to instructions on lesser related offenses, even if he or she requests the
instruction and it would have been supported by substantial evidence, because California
law does not permit a court to instruct concerning an uncharged lesser related crime
unless agreed to by both parties.” (People v. Jennings (2010) 50 Cal.4th 616, 668.)
       The California Supreme Court has held repeatedly that trespass is a lesser related
offense, not a lesser included offense, of burglary. (People v. Foster (2010) 50 Cal.4th
1301, 1343; People v. Taylor (2010) 48 Cal.4th 574, 622; Birks, supra, 19 Cal.4th 108,
118, fn. 8, 137.) We are bound to follow these decisions (Auto Equity Sales, Inc. v.
Superior Court (1962) 57 Cal.2d 450, 455), find no principled basis for distinguishing
between burglary and attempted burglary for the purposes of lesser related or included
offenses, and conclude that the trial court did not err in refusing the requested instruction.




                                              7
       III.   Failure to Inquire Concerning Requested Instruction

       As an alternative to his contention that the trial court was required to instruct the
jury sua sponte on trespass, Hill argues that the trial court was obligated to “ascertain if
the prosecutor would agree or had objections to the jury being instructed on the less[e]r
related offense of trespass.” Hill notes that the California Supreme Court in Birks
provided that although there was no requirement that the jury be instructed on lesser
related offenses, the parties could agree to have the jury so instructed: “[O]ur decision
does not foreclose the parties from agreeing that the defendant may be convicted of a
lesser offense not necessarily included in the original charge. When the parties consent
to such a procedure, with or without formal amendment of the pleadings, neither can
claim unfairness, and the prosecution’s role in determining the charges is not improperly
compromised.” (Birks, supra, 19 Cal.4th at p. 136, fn. 19.) Birks, however, imposes no
responsibility on the trial court to determine whether the prosecutor would agree to the
defendant’s desired lesser related offenses. Hill offers no other authority or argument to
support his claim that the court had any such obligation, nor have we found any no
decisional or statutory authority supporting his contention. We find no error here.


       IV.    Hill’s Custody Credits

       As noted by both Hill and the Attorney General, Hill’s presentence custody credits
were incorrectly calculated. First, Hill was awarded 219 days of actual credit, although
the records indicate that he served 220 days prior to sentencing. Also, he received 219
days of conduct credits, but under Penal Code section 4019, subdivision (f), he was
entitled to 220 days of conduct credits. We modify the judgment to reflect two additional
days of presentence custody credits.


       V.     Vasquez’s Sentence

       Vasquez asserts that the trial court abused its discretion when it denied her motion
to strike her prior conviction under People v. Superior Court (Romero) (1996) 13 Cal.4th


                                              8
497 for the purposes of applying the Three Strikes Law, sections 667, subdivisions (b)-(i)
and 1170.12, subdivisions (a)-(d)).4 “[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 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).)
We review rulings on motions to strike prior convictions for an abuse of discretion.
(Id. at p. 162.)
       Vasquez argues that she presented substantial mitigating factors that should have
removed her from the spirit of the Three Strikes Law: Hill abused her; she was coerced

4       Hill purported in his opening brief to “join[] in all issues not raised by himself, but
raised by co-appellant Vasquez, which may accrue to appellant’s benefit.” It is unclear
whether Hill intended his joinder to extend to the denial of his Romero motion or to a
challenge of the court’s discretionary sentencing decision. Neither matter is suited to a
blanket joinder unaccompanied by particularized argument, for the highly individualized
nature of an appeal of a Romero review turns on an individual’s criminal offense and
history as well as the particulars of his or her background, character, and prospects, and
the court’s sentencing decision is based on its assessment of the offense and
particularized factors in aggravation or mitigation. “Appellate counsel for the party
purporting to join some or all of the claims raised by another are obligated to thoughtfully
assess whether such joinder is proper as to the specific claims and, if necessary, to
provide particularized argument in support of his or her client’s ability to seek relief on
that ground. If a party’s briefs do not provide legal argument and citation to authority on
each point raised, ‘“the court may treat it as waived, and pass it without consideration.
[Citations.]”’ [Citation.] ‘Joinder may be broadly permitted [citation], but each appellant
has the burden of demonstrating error and prejudice [citations].’ [Citation.]” (People v.
Bryant (2014) 60 Cal.4th 335, 363-364.) To the extent Hill’s joinder was an attempt to
raise the Romero issue or to challenge his sentence, his reliance solely on Vasquez’s
arguments and reasoning is insufficient to satisfy his burden on appeal. (People v. Nero
(2010) 181 Cal.App.4th 504, 510, fn. 11 (Nero).) We therefore consider these issues only
as to Vasquez. (Ibid.)

                                              9
into participating in both the prior and the instant offenses; her conduct was minimal, as
she was a lookout; she exercised caution to ensure that no one was home; she had been
law-abiding until she came under the influence of Hill at age 17 (she was now 22); Hill
had encouraged her to use methamphetamine; she had been sentenced to a more severe
sentence than her codefendant in her prior burglary; and she was pregnant at the time of
sentencing.
       At the sentencing hearing, the court confirmed it had read Vasquez’s Romero
motion and all of the attachments. Defense counsel submitted on the sentencing
memorandum. The prosecutor reminded the court that Vasquez’s strike was recent and
for the same conduct as the present offense, then submitted.
       The court denied Vasquez’s motion to strike her prior conviction. First, the court
noted that Vasquez was already on parole for a recent, very similar crime. In the prior
burglary, which also involved both Hill and Vasquez, the court noted that “Ms.
Vasquez’s behavior was more egregious than Mr. Hill’s. I agree with the sentencing as it
was imposed and that prior conviction based on her behavior and the use of the vehicle
that could have had additional charges that could have been filed, could have been held to
answer, and more likely than not could have been found guilty during the trial if that
matter had proceeded with additional charges.” The power to strike a strike, the court
observed, is “is for those folks who make mistakes in their life. And if a mistake could
be made, it’s not to be followed by an identical mistake.” With Vasquez’s continued
involvement in burglaries with Hill, and looking at the two offenses, the court concluded
there was no reason to find Vasquez outside the Three Strikes Law: “And in this
particular case we’ve got [another burglary offense under Penal Code section] 459, her
involvement with the same defendant that was in the prior conviction, Mr. Hill. Her
posturing and position in this case was close to in the absence of a vehicle because the
previous case there was an escape car that was used and people that were chasing are
being chased. [¶] So under those circumstances, the Romero’s denied.” The court
expressed its belief that the general public was unaware of how unsuccessful the



                                            10
monitoring of individuals on parole actually was, and then concluded, “So based on the
fact that it’s identical conduct, residential burglaries, the Romero’s denied.”
       The record shows that the trial court was aware of its discretion under section
1385 and considered all the relevant factors, including the arguments presented by
Vasquez in connection with her request that the trial court strike her prior conviction.
Ultimately, the trial court concluded that Vasquez was not outside the spirit of the Three
Strikes Law. There was no abuse of discretion in this conclusion. In 2010, when she was
19 years old, Vasquez was convicted of burglary in violation of section 459. At the time
Vasquez committed the current crime, she was on parole for that burglary. In the instant
case, Vasquez again attempted to commit burglary with the same partner. Given that
Vasquez was essentially repeating her criminal conduct, attempting to commit residential
burglary even as she was already on parole for burglary, it was not unreasonable for the
trial court to conclude that she was within the spirit of the Three Strikes scheme.
Although Vasquez interprets the court’s comments as “failing to consider any mitigation
and . . . relying solely on the factor of the prior conviction to deny striking the prior,” we
understand the court’s discussion as reflecting its conclusion that nothing about Vasquez
or the offenses suggested she should be deemed “outside the scheme’s spirit, in whole or
in part, and hence should be treated as though [s]he had not previously been convicted of
one or more serious and/or violent felonies.” (Williams, supra, 17 Cal.4th at p. 161.)
       Vasquez discusses battered woman syndrome at length and says that the “court
should have given some weight to the fact that appellant was a battered women [sic]
when she engaged in the charged criminal conduct.” This issue was discussed at the
sentencing hearing not in terms of the Romero motion but with respect to the actual
sentence. Vasquez presented some evidence of abuse: letters written by her supporters
alleging abuse, a medical record pertaining to injuries attributed to Hill’s abuse, and an
unsigned declaration by Vasquez in support of a request for a temporary restraining order
in which she had alleged that he was abusive. The trial court considered this evidence
but did not find it convincing in light of the visual evidence that Vasquez showed no
evidence of injuries soon after an alleged beating and that she continued to participate in

                                              11
what the court concluded was a burglary team. Vasquez has not demonstrated any abuse
of discretion. “[A]n appellant who seeks reversal must demonstrate that the trial court’s
decision was irrational or arbitrary. It is not enough to show that reasonable people might
disagree about whether to strike one or more of his prior convictions. Where the record
demonstrates that the trial court balanced the relevant facts and reached an impartial
decision in conformity with the spirit of the law, we shall affirm the trial court’s ruling,
even if we might have ruled differently in the first instance.” (People v. Myers (1999) 69
Cal.App.4th 305, 310.)
       Vasquez also repeatedly criticizes the trial court for not finding sentencing factors
in mitigation, and she asserts that the court abused its discretion “by failing to consider
any mitigation” and failing “to make a careful, reasoned, and equitable sentencing
decision.” Although it is unclear the extent to which Vasquez intends to raise this issue
as a separate issue rather than considering it as a reason the prior strike should have been
stricken, to the extent Vasquez intends to claim that the trial court abused its discretion
when it imposed the middle term sentence, the record does not support her assertion.
Whether to impose the upper, middle, or lower term sentence is within the discretion of
the trial court. (Pen. Code, § 1170, subd. (b).) “The trial court’s sentencing discretion
must be exercised in a manner that is not arbitrary and capricious, that is consistent with
the letter and spirit of the law, and that is based upon an ‘individualized consideration of
the offense, the offender, and the public interest.’ [Citation.]” (People v. Sandoval
(2007) 41 Cal.4th 825, 847.) On appeal, we may not substitute our judgment of the
relative weights of aggravating and mitigating factors properly considered by the trial
court in imposing sentence. (People v. Zichwic (2001) 94 Cal.App.4th 944, 961.) In the
absence of a showing that a sentencing decision was irrational or arbitrary, the trial court
is presumed to have acted to achieve legitimate sentencing objectives, and its
discretionary determination to impose a particular sentence will not be set aside on
appellate review. (People v. Carmony (2004) 33 Cal.4th 367, 376-377 (Carmony).)
       Here, the court commented extensively on the reasons for its sentencing decision.
It addressed the argument set forth above that Vasquez was suffering from battered

                                              12
women’s syndrome; it expressed its impression based on the evidence that Vasquez and
Hill were operating as a burglary team; it discussed the impact of the crime on the victim;
it considered Vasquez’s personal responsibility in the offense, interpreting her movement
down the street as “a calculated act in getting away from being observed in front of the
house”; and it discussed the fact that Vasquez was on parole at the time of the offense.
The court expressed that it did not find anything to consider in mitigation: the court
rejected her gender and her pregnancy as mitigators and said it did not know whether Hill
was the primary actor or whether Hill was abusive. The court rejected the idea of a
suspended sentence, calling such a sentence “a slap in the face of the court system” and
asking, “Why would you deserve a suspended sentence when you can’t even make it on
parole?” The court advised the parties that it had reviewed the file from Vasquez’s prior
offense so that it could “see exactly what the circumstances were” behind her plea in that
matter, and in its review, “I did see why they imposed the four years” in the prior case.
       Ultimately, the court imposed the middle term sentence because as the lookout,
Vasquez was less involved in the offense than Hill. While Vasquez may be dissatisfied
with her middle term sentence, the record reflects that the court made a careful, reasoned,
and equitable sentence based on an individualized consideration of Vasquez, her offense,
and the public interest. Vasquez has not shown that the sentence was “so irrational or
arbitrary that no reasonable person could agree with it” (Carmony, supra, 33 Cal.4th at
p. 377), and she has therefore not demonstrated any abuse of discretion here.


       VI.    Vasquez’s Claim of Cruel and Unusual Punishment

       For a punishment to be cruel and unusual under the Eighth Amendment, it must be
grossly disproportionate to the offender and offense. (Harmelin v. Michigan (1991) 501
U.S. 957, 1001.) The California Constitution prohibits any sentence that 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,
fn. omitted.) The California Supreme Court has instructed that, when reviewing a claim
of cruel or unusual punishment, courts should examine the nature of the offense and

                                             13
offender, compare the punishment with the penalty for more serious crimes in the same
jurisdiction, and measure the punishment to the penalty for the same offense in different
jurisdictions. (People v. Dennis (1998) 17 Cal.4th 468, 511; In re Lynch, at pp. 425-429.)
Although Vasquez argues that her sentence is unconstitutional,5 she performs none of
these analyses. Instead, she flatly asserts that her sentence is unconstitutional because “A
second strike sentence of nine years in prison for this 22 year old pregnant woman shocks
the conscience.” A second strike sentence of nine years for an attempted residential
burglary committed by an adult who was at the time on parole for a prior burglary does
not on its face “shock[] the conscience” or “offend[] fundamental notions of human
dignity.” (In re Lynch, at p. 424.)
       Next, Vasquez argues that the court’s response to her claim that she was suffering
from battered women’s syndrome was “shocking.” It is unclear how the court’s
evaluation of the limited evidence presented by Vasquez on the issue of abuse relates to
her constitutional argument of cruel and/or unusual punishment, as this is at core a
complaint that the court did not credit her evidence that she was suffering from battered
women’s syndrome. Specifically, she complains that the court’s comments “expressed
an opinion by the court that appellant lied in her declaration.” The court did not opine
that Vasquez was lying, but the court observed that the filmed footage of Vasquez
seemed at odds with her claim to have been beaten recently by Hill. Ultimately, Vasquez
presented sparse evidence to support her claim for purposes of mitigation that she was a
battered woman, and the court, upon review of that evidence, did not conclude that she
was experiencing battered women’s syndrome. When reviewing a claim of cruel and/or
unusual punishment, the underlying disputed facts must be viewed in the light most
favorable to the judgment. (People v. Abundio (2013) 221 Cal.App.4th 1211, 1217.) We
find no error here.

5       All the arguments raised by Vasquez regarding cruel and/or unusual punishment
are specific to her personal circumstances. To the extent Hill’s joinder was intended to
raise the cruel and/or unusual punishment issue on his own behalf, his reliance solely on
Vasquez’s arguments and reasoning is insufficient to satisfy his burden on appeal. (Nero,
supra, 181 Cal.App.4th at p. 510, fn. 11.)

                                            14
       Vasquez then argues that the court’s comments at sentencing violated the
California Code of Judicial Ethics, Canon 3(B)(5), which requires that judges perform
their judicial duties without bias or prejudice and without engaging in speech, gestures, or
other conduct that would reasonably be perceived as bias, prejudice, or sexual
harassment. We have reviewed the transcript of the sentencing hearing in its entirety and
find no evidence of bias or prejudice. The court simply did not accept Vasquez’s
contention that she was suffering from battered women’s syndrome, although it did not
exclude the possibility that Hill may have been abusive or jealous. The court did make
extraneous comments during sentencing, some of which were about his experience with
relationships and what he surmised might have been happening in the relationship
between Hill and Vasquez. Specifically, the trial court stated that it would not surprise
him if Hill were “overbearing or protective or jealous” and that Hill may have been
jealous “if there were other people involved in a meretricious relationship.” The court’s
comments were based upon Vasquez’s description in her unsigned declaration of being
beaten by Hill: she stated that Hill looked through her cell phone; beat her; looked at her
phone again; called one of her male friends; and then, even more upset, beat her again.
Vasquez claims that the court’s comments are reminiscent of sentiments that “a man has
the right to beat his woman, who dares to look at another man.” The court said nothing
of the sort, and made no statement that suggested that Hill was justified in beating
Vasquez. Vasquez also faults the trial court for chastising her for associating with Hill,
arguing that this minimized Hill’s conduct and “negate[d] the expert evidence that a
battered woman has few choices.” Here, the court observed that Vasquez had family
supporting her, and she had a chance to turn her life around while she was on parole, but
she had not done so. The court said, “You can blame Mr. Hill for a lot, but sooner or
later your point of blame has to come back to yourself for the drug use, for your choice to
associate with Mr. Hill.” This comment did not minimize or justify Hill’s violent
conduct; it was consistent with and simply reflected the court’s conclusion that Vasquez
was not suffering from battered women’s syndrome and was personally responsible for
her own decisions and conduct. Moreover, Vasquez presented no expert evidence about

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battered women’s syndrome, so the court’s comments did not “negate” any evidence
presented in this matter. Vasquez has not demonstrated any bias or prejudice on the part
of the court, nor has she with this argument demonstrated that her sentence amounted to
cruel and/or unusual punishment.
       Finally, Vasquez argues that the court (1) failed to fulfill its responsibility to make
factual determinations at sentencing and (2) rejected her mitigation evidence when it said
it did not know whether Hill was the “mover and shaker” in the offense or whether Hill
was abusive. The court fulfilled its obligations at sentencing. While the court did at one
point profess not to know who was the ringleader in this offense, ultimately the court did
determine the sentence based upon its conclusion that Hill was more involved and more
culpable for the crime. The court imposed the middle term sentence for Vasquez, having
already imposed the upper term on Hill, and explained that it “differed the sentencing
based on your involvement in the case.” As for the court’s conclusion that it did not
know whether Hill was abusive, the court did not need to answer that question in order to
sentence Vasquez. What the court needed to determine was whether Vasquez was
suffering from battered women’s syndrome or was otherwise under Hill’s influence and
control such that this should affect her sentence, and the court did resolve that question,
albeit differently than Vasquez believes it should have resolved it. As for Vasquez’s
argument that the court rejected her mitigation evidence, while the trial court did not find
factors in mitigation, we have already found that there was no abuse of discretion in the
court’s sentencing decision. Vasquez has not established error or a constitutionally
unjust sentence with these arguments.

                                      DISPOSITION

       With respect to appellant Kenneth Hill, the judgment is modified to reflect 220
days of actual custody credits in addition to presentence credits in the amount of 220
days, for a total of 440 days of presentence custody credits. The superior court is directed
to prepare a corrected abstract of judgment for Hill that reflects both the correct
calculation of the term of imprisonment for the attempted burglary and the 440 days of


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presentence custody credits, and to forward a certified copy of the abstract of judgment to
the Department of Corrections and Rehabilitation. With respect to appellant Cynthia
Vasquez, the superior court is directed to prepare a corrected abstract of judgment
reflecting her sentence for attempted burglary consistent with the oral pronouncement of
the court, and to forward a certified copy of the abstract of judgment to the Department of
Corrections and Rehabilitation. In all other respects, the judgments are affirmed.




                                                 ZELON, J.




We concur:




       PERLUSS, P. J.




       SEGAL, 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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