Filed 4/5/16 P. v. Zanetti CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D069069

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. FWV1200202)

ADRIAN ENRIQUE ZANETTI,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Bernardino County, Jon

D. Ferguson, Judge. Affirmed in part, reversed in part, and remanded with directions.

         Nancy Olsen, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler and Julie L. Garland,

Assistant Attorneys General, Peter Quon, Jr., Randall D. Einhorn and Anthony Da Silva,

Deputy Attorneys General, for Plaintiff and Respondent.
       A jury convicted Adrian Enrique Zanetti of six counts of second degree robbery

(Pen. Code,1 § 211). It found true as to all counts that Zanetti personally used a firearm

(§ 12022.53, subd. (b)). In separate proceedings, Zanetti admitted he suffered four prior

strike convictions (§§ 1170.12, subds. (a)-(d), 667, subd. (b)) and two prior serious felony

convictions (§ 667, subd. (a)(1)).

       The trial court sentenced Zanetti under the "Three Strikes" law to a 225-years-to-

life prison term as follows: 20 years plus 25 years to life for each count, with count 3 to

be served concurrently with count 6. As to each count, the court ordered Zanetti to pay,

among other fines and fees, a $30 court security fee under section 1465.8, and a $30

criminal conviction fee under Government Code section 70373.

       On appeal, Zanetti contends: (1) his count 3 sentence must be stricken as he

cannot be convicted of robbing the same victim twice in the same incident; alternatively,

his count 3 sentence must be stayed under section 654; (2) insufficient evidence supports

his count 2 conviction; (3) his sentence is cruel and unusual under the state and federal

Constitutions; and (4) the abstract of judgment should be amended to reflect the oral

pronouncement of judgment on count 4; as well as to correctly reflect the sentence

imposed for his prior serious felony convictions.

       Finding merit in Zanetti's first and fourth contentions, we will strike the count 3

conviction and otherwise affirm the judgment. We remand the matter to the trial court

with directions to amend the abstract of judgment as set forth below.



1      Statutory references are to the Penal Code unless otherwise stated.
                                              2
                              FACTUAL BACKGROUND2

The Electronics Store Robbery (Count 2)

       On January 20, 2012, Jonathan Aguiar was working as a cashier at an electronics

store while his manager, Malik Ahmed, filed paperwork in a back room. Zanetti entered

the store wearing a black and gray sweatshirt with the hood pulled over his head. Aguiar

briefly saw Zanetti's face. Zanetti told him not to look at him, and demanded money.

Zanetti flashed a black, holstered handgun underneath his sweatshirt, and Aguiar put his

hands up out of fear. Aguiar glanced at the lower half of Zanetti's face but Zanetti again

told Aguiar not to look at him.

       Aguiar opened the register and placed the money on the counter. After Zanetti

took the money, he asked for electronic devices and directed Aguiar to the back room.

Aguiar saw Zanetti pull the hood of his sweatshirt off his head. Zanetti asked Ahmed for

money and electronic devices, but Ahmed informed him that all the money was in the

cash register. Zanetti pushed Aguiar, ordered the men to stay in the back room, and left.

       Later that day, Ahmed described the suspect to an Ontario Police officer based on

his memory of the suspect's chin. Ahmed also relied on information Aguiar had relayed

to him. Ahmed later identified Zanetti in a photographic lineup.




2      Zanetti robbed three separate businesses in Ontario, California. On January 19,
2012, he robbed a pharmacy using a semiautomatic handgun. Zanetti does not appeal his
conviction on this count.
                                             3
       Aguiar, who felt nervous and scared soon after the incident, told police he was

unable to identify the suspect because he did not get a good look at him. Aguiar

identified Zanetti in a photographic lineup a couple of weeks later.

The Fast Food Restaurant Robberies (Counts 3 through 6)

       On January 24, 2012, at approximately 8:20 p.m., Madeline Ramos was mopping

the dining room area of a fast food restaurant while Diana Velez, another employee, was

otherwise occupied. After seeing Zanetti open the door wearing a gray-hooded sweater,

baseball-style gloves, and a clear plastic mask with red lips and black eyebrows, both

employees screamed and ran to a back room. Zanetti followed them and said, "Stupid

girls, why are you screaming? All I want is a sandwich." The restaurant manager,

Harshil Lad, who had been in the freezer, offered to assist Zanetti at the front of the

restaurant. Zanetti patted the right side of his waist. Zanetti unzipped his sweatshirt,

displayed a black gun, and said, "I have a gun. All I want is money. I don't want to hurt

anybody." Zanetti took Lad to join the female employees in the back room and told Lad

to open a safe, but Lad replied the safe was broken. Zanetti asked Lad to turn off the

surveillance system, but Lad said he could not do it. Zanetti reminded the employees he

was armed and "didn't want to hurt" them. He took Lad's cell phone, saying, "I'm just

taking it so you guys don't call the cops."

       When Lad told him all the money was in the front register, Zanetti directed the

employees there. Lad gave Zanetti a bag of money taken from the register, and Zanetti

took the women's cell phones from the counter. Zanetti lead the employees to the back



                                              4
room, ordering them to say there for five minutes. After a few minutes, Lad returned to

the front of the store, verified that Zanetti had left, and called 911.

Zanetti's Arrest

        Ontario Police Department officers arrived at the restaurant and took separate

statements from the employees. Lad said he had installed a telephone application that

could track his phone's location. Later that evening, officers tracked Lad's phone to

Zanetti's residence and set up a perimeter around the residence. A police helicopter

observed Zanetti smashing a cell phone, throwing the phone away, and returning to his

residence. Officers detained Zanetti and found the women's cell phones and Lad's phone

case. Officers recovered from Zanetti's residence a wallet containing $190, a black-gray

reversible sweater, baseball-style gloves, and a mask. Ramos, Velez, and Lad separately

identified Zanetti in in-field identifications. Ramos identified the mask that Zanetti had

worn.

                                        DISCUSSION

                                               I.

   Count 3 Must Be Stricken Because Zanetti Only Committed a Single Robbery of Lad

        Count 3 arises from the robbery of Lad's phone, and count 6 from the robbery of

Lad as an "employee of [the restaurant]," as alleged in the information. Zanetti contends

insufficient evidence supports his count 3 conviction as he did not commit counts 3 and 6

"with a separate intent and plan"; instead, he committed only one robbery in a

"continuous course of conduct with a single objective."



                                               5
A. Background

       On April 17, 2014, defense counsel moved under section 995 to set aside either the

count 3 or count 6 charge.3 The court stated, "It might be a sentencing issue down the

road, but it's not a [section] 995 issue," and denied the motion: "I think what saves [both

counts] is the gap in time."

       Zanetti later moved for a judgment of acquittal under section 1118.1 on all the

charges and enhancements. The trial court denied the motion.

       At sentencing, defense counsel argued section 654 should apply because the six

counts were actually "three separate instances." The court declined to impose

consecutive sentences on both counts: "[I]t was still a continuous course of conduct. It

was indivisible in time, the taking, that was the same application—sustained application

of fear that made the crime of robbery that the victim was still undergoing at the time the

second taking occurred, so in the Court's view, it would be inappropriate to run those

counts consecutive." The court did not stay the count 3 sentence under section 654.

B. Legal Principles

       Well settled standards apply to Zanetti's substantial evidence challenge. " 'In

reviewing a challenge to the sufficiency of the evidence, we do not determine the facts

ourselves. Rather, we "examine the whole record in the light most favorable to the

judgment to determine whether it discloses substantial evidence—evidence that is

reasonable, credible and of solid value—such that a reasonable trier of fact could find the



3      The first amended information listed the robberies of Lad as counts 4 and 10.
                                             6
defendant guilty beyond a reasonable doubt." [Citations.] We presume in support of the

judgment the existence of every fact the trier could reasonably deduce from the evidence.

[Citation.] [¶] The same standard of review applies to cases in which the prosecution

relies primarily on circumstantial evidence and to special circumstance allegations.

[Citation.] "[I]f the circumstances reasonably justify the jury's findings, the judgment

may not be reversed simply because the circumstances might also reasonably be

reconciled with a contrary finding." [Citation.] We do not reweigh evidence or

reevaluate a witness's credibility.' [Citations.] 'Resolution of conflicts and

inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.]

Moreover, unless the testimony is physically impossible or inherently improbable,

testimony of a single witness is sufficient to support a conviction.' " (People v. Brown

(2014) 59 Cal.4th 86, 105-106.)

       A person may be convicted of more than one crime arising out of the same act or

course of conduct. (§ 954; People v. Reed (2006) 38 Cal.4th 1224, 1226.) However, "[a]

single crime cannot be fragmented into more than one offense." (People v. Rouser

(1997) 59 Cal.App.4th 1065, 1073.)

       "Robbery is the felonious taking of personal property in the possession of another,

from his person or immediate presence, and against his will, accomplished by means of

force or fear." (§ 211.) "[T]he crime of robbery consists of larceny plus two aggravating

circumstances: (1) the property is taken from the person or presence of another; and (2)

the taking is accomplished by the use of force or by putting the victim in fear of injury."

(People v. Gomez (2008) 43 Cal.4th 249, 254, fn. 2.) "[W]hen a defendant steals by force

                                              7
or fear more than one item during the course of an indivisible transaction involving a

single victim, he commits only one robbery notwithstanding the number of items he

steals." (People v. Marquez (2000) 78 Cal.App.4th 1302, 1304.) A defendant commits

only one robbery no matter how many items he steals from a single victim pursuant to a

single plan or intent. (People v. Ortega (1998) 19 Cal.4th 686, 699 (Ortega), overruled

on other grounds in People v. Reed, supra, 38 Cal.4th at pp. 1228-1232; see also People

v. Packard (1982) 131 Cal.App.3d 622, 626 [multiple robbery convictions based on the

taking of multiple items may be sustained only "if each taking is the result of a separate

independent impulse or intent"].)

       In Ortega, supra, 19 Cal.4th at p. 690, four defendants exited their car, surrounded

a parked van, approached the driver and the passenger, and assaulted the driver. As the

driver complied with one defendant's demand for his wallet, the defendant saw his pager.

(Id. at pp. 690-691.) One defendant threw the wallet back to the driver but kept the

driver's pager. (Id. at p. 691.) Meanwhile, another defendant beat the passenger and

pulled off the passenger's sweater after the passenger exited the van. (Ibid.) The

defendants responsible for the beatings entered the van and drove away, closely followed

by the other defendants. (Ibid.) The defendants were convicted of two counts of

carjacking based on taking the van from the possession of the driver and passenger; two

counts of robbery, based on the forcible theft of the driver's wallet and pager and the

passenger's sweater; and one count of grand theft of a vehicle. (Ortega, supra, 19 Cal.4th

at pp. 690-691.) Count 3 had alleged the defendants robbed the driver's personal



                                             8
property, and count 5 had alleged the defendants committed grand theft of the driver's

van. (Id. at p. 699.)

       The California Supreme Court held the defendants were improperly convicted of

robbery of the vehicle and grand theft of the vehicle: "[T]he property taken in the

robbery of [the driver], charged in count 3, included the van. 'When a defendant steals

multiple items during the course of an indivisible transaction involving a single victim, he

commits only one robbery or theft notwithstanding the number of items he steals.' "

(Ortega, supra, 19 Cal.4th at p. 699, citing People v. Brito (1991) 232 Cal.App.3d 316,

326, fn. 8; see also People v. Irvin (1991) 230 Cal.App.3d 180, 185 [a robber cannot be

charged with and convicted of a separate robbery or an additional theft offense because

"he or she took more than one item from a solitary victim during a single course of

conduct"].)

       In People v. Marquez, supra, 78 Cal.App.4th 1302, the defendant was convicted of

two separate robberies arising from an incident in a restaurant. (Id. at pp. 1304-1305.)

The appellate court characterized the defendant's actions as an "indivisible transaction."

(Id. at pp. 1304, 1307.) "In one seamless ill-conceived effort, defendant walked up to the

counter at Lyon's restaurant, threatened [the waitress] with a handgun, thereby

convincing her to hand over her tips lying on the counter and Lyon's operating money

from the cash drawer. This was an indivisible transaction involving a single victim who

was forced to relinquish possession of two separately owned amounts of money at the

same place and at the same time." (Id. at p. 1307.)



                                             9
       The Marquez court held that substantial evidence did not support the defendant's

two separate robbery convictions because the defendant committed only one robbery

"notwithstanding the number and ownership of the items he steals." (People v. Marquez,

supra, 78 Cal.App.4th at p. 1304.) "Since the central element of robbery is force or fear,

a defendant may be convicted of a separate robbery for each victim of such force or fear,

even if the victims are in joint possession of the property taken. [Citations.] Here, in

contrast, the defendant committed only one larceny against a single victim involving one

threatened application of force and occurring at the same place and time. In these

circumstances the single larceny can only support a single count of robbery." (Marquez,

at p. 1308, fn. omitted.)

C. Analysis

       The law set forth in Ortega, supra, 19 Cal.4th 686 and Marquez, supra, 78

Cal.App.4th 1302, applies here. Zanetti took Lad's phone in the back room of the

restaurant, and soon afterwards ordered the employees to the front of the restaurant and

took the money Lad collected from the register. As the trial court concluded in

sentencing Zanetti concurrently on counts 3 and 6, these acts were committed in one

indivisible transaction. In fact, Zanetti's stated purpose in taking Lad's phone was to

prevent Lad from calling the police before Zanetti could complete the robbery.

Therefore, Zanetti committed only one robbery against Lad, starting with Lad's phone

and continuing with the register money. The robbery did not end until Zanetti had left

the restaurant with the property. (People v. Hodges (2013) 213 Cal.App.4th 531, 540;

People v. Brito, supra, 232 Cal.App.3d at p. 326, fn. 8.) That the phone belonged to Lad

                                             10
and the money belonged to the restaurant did not make this two robberies. As in

Marquez, where the robber took the employee's tips and the restaurant's earnings, this

was one indivisible robbery of the same victim.

       In light of the above, we shall strike Zanetti's conviction on count 3, as well as the

criminal assessment fee and the court security fee, and direct the trial court to amend the

abstract to reflect that modification. Our resolution of this issue renders Zanetti's

arguments concerning section 654 moot.

                                             II.

                Sufficient Evidence Supports Zanetti's Count 2 Conviction

       Zanetti contends insufficient evidence supports his count 2 conviction because

Aguiar's eyewitness identification was inconsistent and unreliable, and Ahmed based his

description in part on information that Aguiar had relayed to him.

A. Background

       Aguiar testified that during the robbery he briefly glanced at Zanetti's face and saw

Zanetti remove his hood in the back room. Aguiar described the robber as "five-seven,

Hispanic, kind of medium-build" male with facial hair and a receding hairline. Aguiar

told police on the night of the robbery that he could not identify the robber and did not

tell the police he saw Zanetti without his hood; however, he testified that he was nervous

and scared when he talked to the police. Aguiar nonetheless identified Zanetti in a

photographic lineup. He also identified a nylon holster found in Zanetti's residence. At

trial, Aguiar reviewed photographs of the gun found in Zanetti's home and concluded it



                                             11
was the gun used in the robbery. Aguiar identified Zanetti at the preliminary hearing and

at trial. During Aguiar's testimony, the jury saw surveillance footage of the robbery.

         Ahmed testified that during the robbery he had difficulty seeing Zanetti's face

apart from his chin, but described Zanetti to the police as a "Hispanic male, between 30

and 35 years with a medium build and a mustache" based on his memory of Zanetti's chin

and information Aguiar gave him. Although Ahmed told a police detective he only saw

Zanetti briefly and partially, Ahmed identified Zanetti during the photographic lineup

based on Zanetti's "pointy" chin that lacked a dimple. Ahmed was not "100 percent

confident" because he selected Zanetti's photograph by process of elimination; however,

he testified that Zanetti's photograph most resembled the suspect. Ahmed was

"absolutely positive" Zanetti did not remove his hood, and he could not identify Zanetti at

trial.

         Defense expert research psychologist Kathy Pezdek testified about the accuracy of

eyewitness memory and identification, identifying various factors affecting eyewitness

identification: the length of time the eyewitness looked at the suspect's face, the tendency

for an eyewitness to focus his or her attention on the suspect's weapon, the eyewitness's

stress level, and the suspect's use of a disguise.

B. Legal Principles

         As we have explained, when sufficiency of the evidence is challenged on appeal,

our role in reviewing the evidence is limited. We do not reweigh the evidence and

substitute our judgment for that of the jury. (People v. Escobar (1996) 45 Cal.App.4th

477, 481.) Instead, we determine whether any rational trier of fact could find the

                                              12
defendant guilty beyond a reasonable doubt. (People v. Jones (1990) 51 Cal.3d 294,

314.) This court's authority begins and ends with a determination of whether any

substantial evidence, disputed or not, supports the verdict; thus, when the record discloses

substantial evidence—that is reasonable, credible and of solid value—we accord due

deference to the trier of fact. (Id. at p. 314.) " '[T]he relevant question is whether, after

viewing the evidence in the light most favorable to the prosecution, any rational trier of

fact could have found the essential elements of the crime beyond a reasonable doubt.'

[Citations.] '[I]t is the jury, not the appellate court[,] which must be convinced of the

defendant's guilt beyond a reasonable doubt.' " (People v. Lewis (2009) 46 Cal.4th 1255,

1289-1290, fn. omitted.)

       A single eyewitness's identification of a suspect as the perpetrator of a crime is

sufficient to sustain a conviction. (People v. Boyer (2006) 38 Cal.4th 412, 480.)

"Moreover, a testifying witness's out-of-court identification is probative for that purpose

and can, by itself, be sufficient evidence of the defendant's guilt even if the witness does

not confirm it in court." (Ibid.) "The strength or weakness of the identification . . . and

the qualification of identity and lack of positiveness in testimony are matters which go to

the weight of the evidence and the credibility of the witnesses, and are for the observation

and consideration, and directed solely to the attention of the jury in the first instance[.]"

(People v. Lindsay (1964) 227 Cal.App.2d 482, 494.)

       In discussing an out-of-court identification, the California Supreme Court in

People v. Boyer, supra, 38 Cal.4th at p. 481, noted that the defendant's counsel had a full

opportunity to cross-examine the witness about the certainty of her photo identification

                                              13
and about all aspects of the identification process, which included occasions in which she

identified others as the perpetrator. The court concluded that under these circumstances,

it was for the jury to evaluate the credibility of the witness's identification and the weight

her testimony deserved. (Ibid.)

       In People v. Mohamed (2011) 201 Cal.App.4th 515, the prosecution introduced

the testimony and curbside identifications of a robbery victim and an eyewitness to a

restaurant robbery. (Id. at pp. 517-518.) The victim said that the defendant wore a mask

in a way that left the bottom of his face visible, allowing her to see the shape of his

jawline, nose, and mouth. (Id. at pp. 517-518.) During her curbside identification of the

suspect, the victim told the police she was "80 percent sure" the defendant was the robber

based on his clothing, facial features, and build. (Id. at p. 519.) She also identified the

defendant at the preliminary hearing and at trial. (Id. at pp. 519, 521.) The witness at the

restaurant based his curbside identification on the defendant's clothes, and despite some

doubt, he was confident about his identification. (Id. at p. 519.) Both the victim and the

witness missed details about the defendant's outfit and possessions, but their description

of the defendant's physical appearance closely matched. (Id. at pp. 518-519, 522.) At

trial, defense counsel introduced expert testimony on variables affecting eyewitness

identification. (Id. at p. 520.) This court held sufficient evidence supported the

defendant's conviction despite the victim's uncertainty or the fact that neither the victim

nor the witness saw the defendant's entire face. (Id. at p. 522.) Additionally, the

discrepancies between the witnesses' observations and their omission of certain

information from their initial descriptions of the defendant "did not necessitate the jury's

                                              14
rejection of their identifications." (Ibid.) Finally, the jury was not obligated to accept the

expert witness's testimony or find it applicable to the case. (Ibid.)

       Defense counsel cross-examined Aguiar about his statement to the police, whether

Zanetti removed the hood of his sweatshirt, and Aguiar's identification of Zanetti at the

photographic lineup. The jury was entitled to believe Aguiar's testimony that he saw

Zanetti's facial hair and receding hairline when he glanced at Zanetti or saw Zanetti

remove the hood of his sweatshirt. (See People v. Boyer, supra, 38 Cal.4th at p. 481.)

Because Ahmed based part of his description of the suspect on what Aguiar told him, the

jury in evaluating Ahmed's testimony could reasonably conclude Aguiar's testimony was

credible.

       Even if the jury concluded Aguiar mistakenly believed Zanetti removed his hood

and neither employee clearly saw Zanetti's face, substantial evidence supports the

conviction. (People v. Mohamed, supra, 201 Cal.App.4th at p. 522 [the fact that

witnesses did not see the suspect's face "does not preclude the existence of sufficient

support for the jury's verdict"].) Ahmed testified on his observation of Zanetti's "pointy"

chin as a basis for identifying Zanetti at the photographic lineup. The fact Ahmed was

not "100 percent" certain of his identification alone does not preclude a conclusion that

sufficient evidence supported the conviction. (People v. Mohamed, supra, 201

Cal.App.4th at p. 522.) Moreover, the surveillance footage corroborated Aguiar's

recollection of the robbery and description of the suspect. The handgun and holster were

recovered from Zanetti's home. Both employees identified Zanetti in photographic

lineups, and Aguiar identified Zanetti at the preliminary hearing and at trial.

                                             15
       The jury was entitled to reject Dr. Pezdek's testimony based on its instruction with

CALCRIM No. 332: "Witnesses were allowed to testify as experts and to give opinions.

You must consider the opinions, but you are not required to accept them as true or

correct. The meaning and importance of any opinion are for you to decide." Under all

the circumstances, we conclude substantial evidence supports Zanetti's count 2

conviction.

                                            III.

                       Zanetti's Sentence Is Not Cruel and Unusual

       Zanetti contends his 225 years-to-life sentence is functionally equivalent to life in

prison without parole because he will be unable to serve his sentence within his natural

life expectancy; therefore, it is cruel and unusual punishment under the state and federal

Constitutions. He argues the 2012 robberies did not involve homicide or physical injury

but were motivated by his drug addiction.

A. Background

       Zanetti admitted that in June 1990, he suffered strike convictions for second

degree robbery, assault with a firearm (§ 245, subd. (a)(2)), and firing at an inhabited

dwelling (§ 246). Zanetti also admitted that in 2004, he suffered a strike or serious felony

conviction for first degree residential burglary. (§ 459.) The trial court denied Zanetti's

motion to strike certain strike priors under People v. Superior Court (Romero) (1996) 13

Cal.4th 497. At sentencing, the People stated Zanetti violated parole in 2007 by selling

narcotics. Zanetti was also deported from the United States three times, and defense



                                             16
counsel asserted Zanetti re-entered the country each time to address his drug addiction

and provide for his family. Zanetti was 45 years old when he was sentenced in this case.

B. Legal Principles

       The People argue Zanetti forfeited this contention by failing to raise it at the

sentencing hearing. (People v. Russell (2010) 187 Cal.App.4th 981, 993.) We address

the merits. (People v. Norman (2003) 109 Cal.App.4th 221, 230 ["Nonetheless, we shall

reach the merits under the relevant constitutional standards, in the interest of judicial

economy to prevent the inevitable ineffectiveness-of-counsel claim"]; see also People v.

Martinez (1999) 76 Cal.App.4th 489, 496.) We review de novo whether punishment is

cruel and unusual, viewing the underlying facts in the light most favorable to the

judgment. (People v. Mantanez (2002) 98 Cal.App.4th 354, 358.)

       The Eighth Amendment's ban on cruel and unusual punishment prohibits

imposition of a sentence that is grossly disproportionate to the severity of the crime.

(Ewing v. California (2003) 538 U.S. 11, 20-21 (Ewing).) In Graham v. Florida (2010)

560 U.S. 48, the United States Supreme Court recognized that punishment prohibited as

unconstitutionally disproportionate to the offense generally fall into two classifications:

those which are categorically prohibited, and those which are prohibited based on the

facts of a particular case. (Id. at p. 59.)

       To determine whether a particular sentence is so grossly disproportionate that it

violates the federal Constitution, the court considers all the circumstances of the case,

including the gravity of the offense and the severity of the penalty as well as whether

more serious crimes are subject to the same penalty in other jurisdictions. (Solem v.

                                              17
Helm (1983) 463 U.S. 277, 292.) No single criterion is dispositive. (Id. at p. 291, fn. 17.)

" '[[O]utside] the context of capital punishment, successful challenges to the

proportionality of particular sentences [will be] exceedingly rare.' " (Id. at p. 290,

quoting Rummel v. Estelle (1980) 445 U.S. 263, 272.) Still, although deference is given

to the Legislature's prescribed sentence for a particular crime (Solem v. Helm, at p. 290),

no penalty is per se constitutional. (Ibid.)

        When punishment is imposed under the Three Strikes scheme, the defendant is not

being punished merely for the most recent offense, but also for recidivism. (People v.

Mantanez, supra, 98 Cal.App.4th at p. 366.) Thus, extended punishment under the Three

Strikes law can justifiably be imposed on defendants who repeatedly commit felonies

without running afoul of the constitutional proscription against cruel and unusual

punishment. (Ewing, supra, 538 U.S. at pp. 29-30; see Lockyer v. Andrade (2003) 538

U.S. 63, 70-77.) However, a defendant may prevail on a cruel and unusual punishment

challenge if the "current offense bears little indication [the defendant] has recidivist

tendencies to commit offenses that pose a risk of harm to the public." (People v.

Carmony (2005) 127 Cal.App.4th 1066, 1080; see In re Coley (2012) 55 Cal.4th 524,

562.)

        Similarly, under state law Zanetti must overcome a "considerable burden" in

challenging his penalty as cruel or unusual. (People v. Wingo (1975) 14 Cal.3d 169,

174.) He must demonstrate the punishment is so disproportionate to the crime for which

it was imposed it "shocks the conscience and offends fundamental notions of human

dignity." (In re Lynch (1972) 8 Cal.3d 410, 424 (Lynch); accord, People v. Dillon (1983)

                                               18
34 Cal.3d 441, 478, disapproved on other grounds in People v. Chun (2009) 45 Cal.4th

1172, 1185-1186.) The Lynch court identified three factors for the reviewing court to

consider in assessing this constitutional claim: (1) the nature of the offense and the

offender; (2) how the punishment compares with punishments for more serious crimes in

the jurisdiction; and (3) how the punishment compares with the punishment for the same

offense in other jurisdictions. (Lynch, supra, 8 Cal.3d at pp. 425-427.)

       To evaluate whether a particular punishment is cruel or unusual, courts examine

the nature of the offense and of the offender, " 'with particular regard to the degree of

danger both present to society.' " (People v. Dillon, supra, 34 Cal.3d at p. 479.) In

assessing the nature of the offense, a court should consider the circumstance of the

particular offense such as the defendant's motive, the way the crime was committed, the

extent of his involvement, and the consequences of his acts. (Ibid.) In analyzing the

nature of the offender, a court should consider his "age, prior criminality, personal

characteristics, and state of mind." (Ibid.) "[A] punishment which is not disproportionate

in the abstract is nevertheless constitutionally impermissible if it is disproportionate to the

defendant's individual culpability." (Id. at p. 480.) In addition to the nature of the current

offense, "recidivism is a legitimate factor to consider when imposing a greater sentence

than for a first time offense." (People v. Cuevas (2001) 89 Cal.App.4th 689, 704.)

"Recidivism in the commission of multiple felonies poses a danger to society justifying

the imposition of longer sentences for subsequent offenses." (People v. Cooper (1996)

43 Cal.App.4th 815, 823-824.)



                                              19
       In Ewing, supra, 538 U.S. at pages 18, 20, the United States Supreme Court

affirmed the defendant's to 25-years-to-life sentence under California's Three Strikes law

for stealing three golf clubs, as a grand theft with a prior theft conviction. His criminal

history included theft-based convictions, battery, burglary, possessing drug paraphernalia,

appropriating lost property, possessing a firearm, and trespassing. (Id. at p. 18.) In

rejecting the defendant's cruel and unusual punishment challenge, Justice O'Connor,

writing for a plurality, found the sentence was "not grossly disproportionate" (id. at p.

30), stating: "In weighing the gravity of Ewing's offense, we must place on the scales not

only his current felony, but also his long history of felony recidivism. Any other

approach would fail to accord proper deference to the policy judgments that find

expression in the legislature's choice of sanctions. . . . To give full effect to the State's

choice of this legitimate penological goal, our proportionality review of Ewing's sentence

must take that goal into account." (Id. at p. 29.)

       In Lockyear v. Andrade (2003) 538 U.S. 63, 66, the defendant stole five

videotapes worth $84.70 from a store and, two weeks later, stole four videotapes worth

$68.84 from another store. He was convicted of two counts of petty theft with a prior

conviction, and sentenced under the Three Strikes law to two consecutive 25-year-to-life

terms. (Id. at pp. 67-68.) His criminal history consisted primarily of theft, burglary and

drug convictions. (Id. at pp. 66-67.) After a California appellate court held the sentence

did not violate the Eighth Amendment, the United States Supreme Court held the

defendant was not entitled to federal habeas relief because the California court's

application of the "gross disproportionality principle" was not unreasonable. (Lockyear,

                                              20
supra, at p. 77.) The court stated that the gross disproportionality rule "reserves a

constitutional violation for only the extraordinary case." (Ibid.)

C. Analysis

       Zanetti's sentence is not cruel and unusual under the federal Constitution because

it was properly based on his recidivist conduct. The Three Strikes law was "devised for

the 'revolving door' career criminal, and was expressly intended 'to ensure longer prison

sentences' " for individuals who commit qualifying second and third strikes. (People v.

Strong (2001) 87 Cal.App.4th 328, 331-332, fn. omitted; People v. Gaston (1999) 74

Cal.App.4th 310, 320.) When Zanetti was convicted of first degree residential burglary

in 2004, he had already suffered prior strike convictions, including a second degree

robbery conviction, but he avoided sentencing under the Three Strikes law. Nevertheless,

Zanetti continued his criminal behavior by violating parole three years later. His present

conviction for six counts of second degree robbery is the second case in which he has

been convicted of that offense. Similarly, his prior serious conviction for assault with a

firearm did not prevent him from using a firearm in the 2012 robberies. We therefore

conclude application of the Three Strikes law is proper here. (See, e.g., People v.

Romero (2002) 99 Cal.App.4th 1418, 1433 [" ' "Because the Legislature may

constitutionally enact statutes imposing more severe punishment for habitual criminals, it

is illogical to compare [defendant's] punishment for his 'offense,' which includes his

recidivist behavior, to the punishment of others who have committed more serious

crimes, but have not qualified as repeat felons." ' "].)



                                              21
          Zanetti's sentence is not grossly disproportionate in relation to the nature and

gravity of the offenses. In a six-day crime spree, Zanetti robbed three businesses and

multiple victims, each time threatening the victims with a firearm. Zanetti wore different

clothes and concealed his face, indicating planning and sophistication. That Zanetti did

not physically injure the victims is not dispositive because robbery is an inherently

violent and serious felony. (§§ 667, subd. (d)(1), 667.5, subd. (c)(9); see also People v.

Brito, supra, 232 Cal.App.3d at p. 321; People v. Terrill (1979) 98 Cal.App.3d 291, 305

[armed robbery is an inherently dangerous felony for the purposes of the felony murder

rule].)

          Zanetti's history of drug addiction does not make his sentence grossly

disproportionate. "[D]rug addiction is not necessarily regarded as a mitigating factor

when a criminal defendant has a long-term problem and seems unwilling to pursue

treatment." (People v. Martinez (1999) 71 Cal.App.4th 1502, 1511.) "As a policy

matter, when a defendant has a drug addiction or substance abuse problem, where the

defendant has failed to deal with the problem despite repeated opportunities, where the

defendant shows little or no motivation to change his life style, and where the substance

abuse problem is a substantial factor in the commission of crimes, the need to protect the

public from further crimes by that individual suggests that a longer sentence should be

imposed, not a shorter sentence." (People v. Reyes (1987) 195 Cal.App.3d 957, 963.)

Here, in light of Zanetti's continued drug use and criminal acts spanning many years

when he was not in prison, the trial court was entitled to regard as self-serving Zanetti's



                                                22
claims that he reentered the United States to seek treatment and took his drug treatment

seriously.

       We reach the same conclusion under the California Constitution. (Cal. Const., art.

I, § 17.) Although some courts have interpreted the state and federal Constitutions'

provisions slightly differently, the analysis is materially similar. (See People v.

Mantanez, supra, 98 Cal.App.4th at p. 358, fn. 7; see also People v. Cunningham (2015)

61 Cal.4th 609, 670-671; People v. Cole (2004) 33 Cal.4th 1158, 1235.) Both

Constitutions bar punishment that is "grossly disproportionate" to the crime or the

individual culpability of the defendant. (Solem v. Helm, supra, 463 U.S. at p. 288;

People v. Dillon, supra, 34 Cal.3d at p. 450, 478, fn. 25.) Under both constitutional

prohibitions, the court considers the nature of the offense and the defendant, the

punishment for more serious offenses within the jurisdiction, and the punishment for

similar offenses in other jurisdictions. (Solem v. Helm, supra, 463 U.S. at pp. 290-291;

Lynch, supra, 8 Cal.3d at pp. 425, 431, 436.) For the reasons discussed above, Zanetti

has failed to meet his burden of establishing that his punishment was cruel and/or

unusual. (People v. King (1993) 16 Cal.App.4th 567, 572.) We conclude that, under

either the state or federal Constitutions, Zanetti's 225-years-to-life sentence was not "so

disproportionate to the crime for which it is inflicted that it shocks the conscience and

offends fundamental notions of human dignity." (Lynch, supra, 8 Cal.3d at p. 424.)




                                             23
                                            IV.

                       The Abstract of Judgment Must Be Amended

       The trial court sentenced Zanetti on count 4 to a consecutive term of 20 years plus

25 years to life, but the sentencing minute order and the abstract of judgment reflect a

sentence of 20 years and two months plus 25 years to life. The 20-year determinate

sentences on each count consisted of a 10-year term for the firearm use enhancement

under section 12022.53, subdivision (b), and two five-year consecutive terms for Zanetti's

two prior serious felony convictions under section 667, subdivision (a). However, the

sentencing minute order and abstract of judgment do not reflect the correct breakdown of

the sentence regarding the prior serious felony convictions.

       Zanetti contends the sentencing minute order and abstract of judgment should be

amended to reflect the oral pronouncement of judgment. The People concede the point,

and we agree. The abstract of judgment is not itself the judgment of conviction, and

cannot prevail over the court's oral pronouncement of judgment to the extent the two

conflict. (See People v. Mitchell (2001) 26 Cal.4th 181, 185.)




                                            24
                                      DISPOSITION

       We strike Adrian Enrique Zanetti's conviction on count 3 and the fees imposed on

that count. In all other respects we affirm the judgment. We direct the trial court to

amend the abstract of judgment to reflect those changes and the fact that the sentence

imposed on count 4 is 20 years plus 25 years to life, and that two five-year consecutive

sentences for two prior serious felony convictions under Penal Code section 667,

subdivision (a) are to be served on each count. The trial court shall forward a certified

copy of the amended abstract of judgment to the Department of Corrections and

Rehabilitation.




                                                                            O'ROURKE, J.

WE CONCUR:


BENKE, Acting P. J.


McDONALD, J.




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