Filed 7/9/14 P. v. Byrd CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
 California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
                                     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,                                       E059922

v.                                                                       (Super.Ct.No. FVI1300020)

CURTIS EDWARD BYRD,                                                      OPINION

         Defendant and Appellant.




         APPEAL from the Superior Court of San Bernardino County. John M. Tomberlin,

Judge. Affirmed.

         Tracy A. Rogers, under appointment by the Court of Appeal, for Defendant and

Appellant.

         No appearance for Plaintiff and Respondent.

         Defendant and appellant Curtis Edward Byrd appeals after he was found guilty by

a jury of second degree robbery. (Pen. Code, §§ 211, 212.5.) The offense was a third




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strike, and defendant was sentenced to a term of 25 years to life in state prison. He filed

a notice of appeal. We affirm.

                        FACTS AND PROCEDURAL HISTORY

       Defendant went into a convenience store. He took one can of beer from the beer

cooler and asked for one pack of cigarettes. When the clerk, S.C., rang up the purchases,

defendant took his hand out of his pocket; he was holding a gun. Defendant placed the

gun, still holding it with his hand, on the counter, pointed toward the clerk. Defendant

said, “‘Don’t move,’” and that he did not want to hurt the clerk. Defendant asked for the

money from the register. The clerk complied, and gave defendant some bills from the

cash register totaling less than $20. Defendant wanted money from a second register as

well. The second register had about $15 in it, which the clerk also gave to defendant.

Not wanting to alarm the other customers in the store, the clerk asked defendant if she

could put the items in a bag. Defendant said yes; the clerk bagged the cash and the

merchandise. Defendant took the bag and left the store.

       The clerk telephoned the store manager, and then called 911. Sheriff’s deputies

responded to the robbery report. A short distance away, they found defendant walking

down the street. Defendant was carrying a distinctive plastic bag with the store logo. A

can of beer was in the bag. Defendant had a pack of cigarettes in a front pants pocket, as

well as cash. Defendant had a black, plastic BB gun in his jacket pocket. Another deputy

transported the clerk to the location where defendant had been detained; the clerk

identified defendant as the robber.



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       As a result of these events, defendant was charged with one count of second

degree robbery. The information alleged that defendant had suffered three prior strike

convictions. The information also alleged as enhancements that defendant had three prior

serious felony convictions (Pen. Code, § 667, subd. (a)(1)), and three prison term priors

(Pen. Code, § 667.5, subd. (b)).

       Jury trial commenced May 13, 2013. The jury found defendant guilty of the

charged robbery offense. In a bifurcated proceeding, defendant admitted two of the strike

prior (robbery) convictions; the People did not provide proof of the third. Defendant also

admitted a prior serious felony enhancement conviction, and one prison term prior.

       The court sentenced defendant as a third striker to a term of 25 years to life on the

new robbery conviction. The court also imposed a consecutive sentence of five years on

the prior serious felony enhancement, and a consecutive sentence of one year on the

admitted prison term prior. Defendant’s total sentence was 31 years to life.

       Defendant filed a notice of appeal.

                                        ANALYSIS

       This court appointed counsel to represent defendant on appeal. Counsel has now

filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v.

California (1967) 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493], setting forth a brief

statement of the facts and procedural history of the case. Counsel states that she

thoroughly reviewed the record, but found no arguable issues on appeal. She has

therefore requested this court to undertake a review of the entire record.



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       Defendant has been offered an opportunity to file a personal supplemental brief,

which he has done. Defendant identifies certain issues he wishes to bring to the court’s

attention. Most of defendant’s concerns betray a misunderstanding of the nature of the

“Three Strikes” law as an alternative sentencing scheme. Defendant does not dispute his

conviction of second degree robbery, but he questions whether the three strikes

punishment of 25 years to life is warranted or appropriate. None of the concerns

defendant raises is meritorious.

       First, defendant argues that his conviction for second degree robbery should not be

treated as a “strikable offense”; he contends that it was not a sufficiently serious or

violent offense to warrant treatment as a third strike, on the theory that he did not threaten

the victim or point his gun at her. Defendant has distorted the record. Defendant

expressly told the victim not to move, because he did not want to hurt her. Defendant’s

statement was at least an implicit, if not an explicit, threat of force. He also displayed the

gun at the same time, backing up his threat of force. Although defendant laid the gun on

the counter and kept his hand on it—he did not, for example, raise the gun and point it

directly in the victim’s face—the victim nevertheless clearly testified that the gun barrel

was pointed in her direction. Contrary to his intimation otherwise, defendant in fact did

threaten the victim and did point the gun at her. Moreover, robbery is statutorily defined

as a serious felony (Pen. Code, § 1192.7, subd. (c)(19)). Defendant’s crime, and his

conduct during the commission of the crime, was sufficiently serious and/or violent to

qualify as a serious or violent felony third strike.



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       Next, defendant complains that he was not adequately advised of his right to a

hearing to challenge or contest the alleged qualifying prior strikes. In effect, defendant is

questioning the effectiveness of his trial counsel. We note, however, that at the

sentencing hearing, counsel did represent defendant and counsel was fully aware of

defendant’s right to challenge his prior strikes. As it transpired, the People

acknowledged that proof of defendant’s 1993 prior conviction as a strike was not

provided, and so withdrew the strike allegation as to that conviction. With respect to

defendant’s 1979 and 1985 strike convictions, the People did provide proof, and indeed

defendant had pleaded guilty in both of those cases. Defendant, of all people, was

perfectly aware that there was no basis upon which to challenge the existence and status

of each of those prior convictions as qualifying strikes.

       In order to prevail on a claim of ineffective assistance of counsel (IAC), a

defendant must show both that counsel’s performance was deficient and that the deficient

performance prejudiced the defense. (Strickland v. Washington (1984) 466 U.S. 668,

687-688, 693-694 [80 L.Ed.2d 674, 104 S.Ct. 2052].) Manifestly, defendant can make no

such showing in these circumstances: where counsel knew of the right to challenge any

of the prior convictions; where the failure of proof by the People resulted in the

withdrawal of one of the strike allegations; where the remaining strike allegations were

supported by proper proof; where defendant himself was fully aware (because of his

guilty pleas) of the correctness of the prior strike convictions as alleged; and where

defendant proffers no basis upon which either of the remaining prior strikes could have



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been challenged. Defendant was properly sentenced as a third striker after his present

second degree robbery conviction.

       Third, defendant complains that he was sentenced to a term of 25 years to life for

his conviction of second degree robbery, when the crime of robbery does not carry a life

sentence. However, defendant was found guilty of second degree robbery—his latest

offense—under the circumstance that he had at least two prior strike-qualifying serious or

violent felony convictions. In other words, defendant was sentenced as a recidivist

offender—third striker—not merely as a person convicted of second degree robbery.

(People v. Cline (1998) 60 Cal.App.4th 1327, 1338.)

       Because defendant is a recidivist offender, his commission of a new crime—

second degree robbery—has taken him out of the ordinary determinate sentencing

scheme for second degree robbery, and subjected him to an alternative sentencing scheme

for recidivist offenders. The alternative sentencing scheme of the Three Strikes law

applies when “a defendant has been convicted of a felony and it has been pled and proved

that the defendant has one or more prior felony [strike] convictions . . . .” (Pen. Code,

§ 1170.12, subds. (a), (c)(1); see § 667, subd. (e)(1).) Defendant meets both criteria: he

has committed a new serious or violent felony (second degree robbery) and it has been

pleaded and proven that he has at least two prior serious or violent felony convictions.

       “There can be no doubt that the legislative purpose—to punish recidivist criminals

more severely than others—is a proper goal. It has to do with preventing and punishing

crime, and with protecting the public from criminals. The core idea is that those who



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have not drawn the proper lesson from a previous conviction and punishment should be

punished more severely when they commit more crime. Nor is it irrational to provide

that the more serious the previous crime, the greater should be the punishment for a

subsequent offense. Recidivist laws have been part of the legal landscape for a very long

time, and their basic validity is beyond serious legal question. [Citations.]” (People v.

Kilborn (1996) 41 Cal.App.4th 1325, 1329.)

       Fourth, defendant argues that he has already served the time for the underlying

strike offenses, such that he is being punished again for those offenses. Not so. “In the

context of habitual criminal statutes, ‘increased penalties for subsequent offenses are

attributable to the defendant’s status as a repeat offender and arise as an incident of the

subsequent offense rather than constituting a penalty for the prior offense.’ [Citation.]”

(People v. Jackson (1985) 37 Cal.3d 826, 833.)

       Again, defendant labors under a serious misapprehension about the nature of the

three strikes alternative sentencing scheme. Defendant is not being punished presently

for his past crimes (for which he already “served the time”). Rather, he is being punished

for his new crime, but his status as a recidivist offender has placed him under an

alternative calculation of the punishment for his new crime. It has long been held that

recidivism, in the commission of multiple crimes—particularly serious and violent

felonies—poses a significant danger to society that justifies the imposition of longer

sentences for subsequent offenses. (Rummel v. Estelle (1980) 445 U.S. 263, 284 [63

L.Ed.2d 382, 397, 100 S.Ct. 1133].) The imposition of such longer sentences for



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dangerous recidivists does not violate either state or federal constitutional prohibitions

against cruel and/or unusual punishment. (See, e.g., Harmelin v. Michigan (1991) 501

U.S. 957 [115 L.Ed.2d 836, 111 S.Ct. 2680]; People v. Cooper (1996) 43 Cal.App.4th

815, 825-826.)

       Fifth, in a letter addressed to this court, ostensibly advising the court of a change

of address, defendant adds the claim that his punishment is too harsh because he is being

punished more harshly than other offenders who actually harmed other people, whereas

defendant did not physically injure anyone in the commission of his crime. Defendant’s

letter hints at a claim that his punishment is unconstitutionally disproportionate, in

comparison to punishments given for other, more serious, crimes in California. “The

seriousness of the threat a particular offense poses to society is not solely dependent on

whether it involves physical injury. Consequently, the commission of a single act of

murder, while heinous and severely punished, cannot be compared with the commission

of multiple felonies.” (People v. Cooper, supra, 43 Cal.App.4th 815, 826, citing People

v. Ingram (1995) 40 Cal.App.4th 1397, 1416.)

       Under the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have

independently reviewed the record in its entirety and find no arguable issues.




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                                   DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                 McKINSTER
                                                             Acting P. J.
We concur:



KING
                         J.



CODRINGTON
                         J.




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