Filed 3/24/16 P. v. Jones 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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                                     or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                      E061729

v.                                                                      (Super.Ct.No. SWF1302341)

LEROY NAPOLEAN JONES,                                                   OPINION

         Defendant and Appellant.




         APPEAL from the Superior Court of Riverside County. Patrick F. Magers, Judge.

(Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art.

VI, § 6 of the Cal. Const.) Affirmed.

         Jennifer Peabody, under appointment by the Court of Appeal, for Defendant and

Appellant.

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

and Peter Quon, Jr. and Stacy Tyler, Deputy Attorneys General, for Plaintiff and

Respondent.



                                                             1
                                    I. INTRODUCTION

       Defendant and appellant, Leroy Napolean Jones, was convicted by a jury of one

count of robbery. (Pen. Code, § 211, count 1.)1 The trial court found that defendant had

three prior strike convictions (§§ 667, subds. (c), (e)(2)(A), 1170.12, subd. (c)(2)(A)), one

prior serious felony conviction (§ 667, subd. (a)), and one prison prior (§ 667.5, subd.

(a)). The court denied defendant’s Romero2 motion to dismiss two of his three prior

strikes, and sentenced defendant to 31 years to life3 in state prison.

       On appeal, defendant makes three contentions. First, he contends the judgment

must be reversed because the trial court violated sections 1163 and 1164 by not sending

the jury back for further deliberations after several jurors expressed confusion over the

verdict. Next, he asserts the trial court’s explanation of the concept of aiding and

abetting was legally incorrect and prejudicial. Last, he claims the trial court abused its

discretion in refusing to dismiss two of his three prior strikes, which all arose from one

incident in 1992, and his sentence constitutes cruel and unusual punishment in violation

of the Eighth and Fourteenth Amendments. We reject defendant’s contentions and affirm

the judgment.



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

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

       3  Defendant was sentenced to 25 years to life on count 1, a consecutive five-year
term for the prior violent felony conviction, and a consecutive one-year term for the
prison prior.


                                              2
                               II. BACKGROUND FACTS

       At approximately 12:13 p.m. on August 28, 2013, defendant walked into Jenny’s

Donuts, located in San Jacinto, California. He purchased a donut and asked Marina

Lynn, the owner of the store, whether she was alone. Although her five-year-old son

watched television in a back room, she replied that she was alone, and defendant left.

Minutes after defendant left the store, a man wearing a hat, sunglasses, and a blue shirt

with an emblem on the back of the neck entered the store, pointed a gun at the victim, and

took all of the money, approximately $200, from the store’s register. Defendant’s visit

to, and the robbery of, Jenny’s Donuts were captured on videotape. In the videotape,

defendant wore a black shirt with a white “ECKO U” logo, blue shorts, and white socks.

       Shortly after the robbery, police stopped a tan-colored Chevrolet Venture that

matched the description of a vehicle related to the robbery of Lynn. Defendant was a

passenger inside the vehicle. Lynn was transported to the scene, where she positively

identified defendant as the person who bought a donut from her, and who asked if she

was alone, immediately before the robbery. The police did not recover any money inside

the vehicle, but recovered a donut bag from the car, which Lynn identified as the same

bag she had given defendant when he purchased a donut. At the time of the traffic stop

and his arrest, defendant was wearing a black shirt with “ECKO U” written in white

letters, blue shorts, and white socks.

       That same day, on August 28, 2013, the police went to defendant’s home. The

police knocked on the door and announced their presence, but received no response.



                                             3
They opened the door and found codefendant, Alphonso Lee Brooks, in the living room

of defendant’s home. The police recovered $160 in small denominations from the living

room and from a bedroom. The police also collected from the living room a blue Under

Armour shirt with an emblem on the back of the neck.

        Two days prior to the robbery of Jenny’s Donuts, an unidentified man wearing

sunglasses and a hat walked into Rosa’s Juice Bar. This man pointed a gun at the

employees, including Claudia Mitchell, and took approximately $200 from the register.

Just before the robbery, a witness who was doing laundry at the same shopping center as

the Rosa’s Juice Bar noticed two men, one of whom was wearing a black and white shirt

with a logo, acting in a suspicious manner in front of and around the juice bar.

        When the police viewed the surveillance videotapes from both robberies, they

noted that the perpetrators were wearing the exact same clothing at the robberies of

Jenny’s Donuts and Rosa’s Juice Bar, and that they both had the same body types as

defendant and Brooks.

                             III. PROCEDURAL HISTORY

        On December 24, 2013, an information charged defendant and Brooks with the

robbery of Lynn at Jenny’s Donuts (§ 211, count 1), and the robbery of Mitchell at

Rosa’s Juice Bar (§ 211, count 2). It was also alleged defendant had previously been

convicted of a serious felony (§ 667, subd. (a)), had suffered three prior strikes (§§ 667,

subds. (c), (e)(2)(A), 1170.12, subd. (c)(2)(A)), and had one prison prior (§ 667.5, subd.

(a)).



                                              4
       On April 11, 2014, the trial court granted defendant’s motion to dismiss the count

2 robbery of Mitchell at Rosa’s Juice Bar, but only as to defendant. (§ 995.) On June 16,

2014, the trial court denied defendant’s motion to sever his trial from Brooks’s trial. The

jury was ultimately unable to reach a verdict as to Brooks on both counts, and the court

declared a mistrial. Brooks subsequently pled guilty to the count 1 robbery charge of

Lynn at Jenny’s Donuts.

       As noted, the jury found defendant guilty as charged in count 1 of the robbery of

Lynn at Jenny’s Donuts.

                                     IV. DISCUSSION

A. The Trial Court Was Not Required to Send the Jury Out for Further Deliberations

       1. Background—Jury Verdict

       At the end of the first day of jury deliberations, the jury sent the court a note:

“Considering count 1, if we don’t find Brooks guilty (if we can’t determine he is the

perpetrator) can we find [defendant] guilty?” The district attorney and counsel for

Brooks opined defendant could still be convicted even if the jury did not convict Brooks,

but the court disagreed, explaining that, if the jury acquitted Brooks but convicted

defendant, the court would have to grant defendant’s motion for judgment of acquittal for

insufficient evidence (§ 1118.1), as there was insufficient evidence linking defendant to a

perpetrator other than Brooks. The court answered “[n]o” to the jury question.

       The following morning, the district attorney asked the court to reconsider its

answer to the jury question. The court acknowledged a person could be convicted as an



                                              5
aider and abettor regardless of the identity of the perpetrator, but declined to change the

answer it had given the jury. Immediately after the court reiterated it would not change

its answer to the jury question, the clerk announced the jury had reached a verdict.

       After the jury returned its guilty verdict against defendant on count 1, the trial

court asked: “Ladies and gentlemen of the jury, is this your verdict?” (§ 1149.) The jury

responded: “Yes, it is.” The court began to poll Jurors Nos. 1 and 2, but again asked:

“The verdict that was signed was a guilty of robbery with respect to [defendant]. Is that

the unanimous finding of the jury?” The jury again responded: “Yes.”

       Immediately after this response, Jurors Nos. 1, 9, and 12 advised the trial court

they believed they were convicting defendant for aiding and abetting, not for actual

robbery. Specifically, Juror No. 9 stated: “You told us that they were going—they both

had to be the same.” The court explained: “Well, as far as—as far as the verdict is

concerned, the verdict that was signed is guilty of robbery with respect to [defendant]

under count 1. That’s what was signed.” Juror No. 12 then asked: “It’s not aiding and

abetting?” Juror No. 1 added: “It should have been aiding and abetting.” Juror No. 9

also began to comment that “[a]iding and abetting is what we—” before the district

attorney interrupted with, “[a]iding and abetting of robbery.” The district attorney further

clarified: “I think the concern—that was under an aiding and abetting theory as presented

by the People.”

       The trial court advised the jury that, “as the instruction indicates, it doesn’t make

any difference whether you’re a direct perpetrator or aider and abettor. If you find



                                              6
beyond a reasonable doubt that either one or the other, then both are equally guilty, if you

find beyond a reasonable doubt that you were either the perpetrator or aider and abettor.”

Juror No. 8 asked for further clarification, explaining that “a lot of us believed it was

supposed to be count 1 but for aiding and abetting, not for actual robbery.” Juror No. 9

agreed with Juror No. 8’s statement.

       The court then reread CALCRIM No. 400 to the jury, which stated, in pertinent

part: “A person is guilty of a crime whether he or she committed it personally or aided

and abetted the perpetrator.” It also reread CALCRIM No. 401, which set forth the

following elements necessary to convict defendant as an aider and abettor: “To prove

that the defendant is guilty of a crime based on aiding and abetting that crime, the People

must prove that: [¶] 1. The perpetrator committed the crime; [¶] 2. The defendant

knew that the perpetrator intended to commit the crime; [¶] 3. Before or during the

commission of the crime, the defendant intended to aid and abet the perpetrator in

committing the crime; [¶] AND [¶] 4. The defendant’s words or conduct did in fact aid

and abet the perpetrator’s commission of the crime.”

       After rereading CALCRIM Nos. 400 and 401 to the jury, the trial court asked the

jury: “Does that help? [¶] Folks, do you want to go back into the jury room and further

discuss this?” Juror No. 2 responded: “I don’t believe it will clarify anything for us

because we interpreted it as being separate from one another.” The court then explained

that, “as the jury instructions indicate, you evaluate the evidence as to each defendant

separately” as “each individual defendant is entitled to [the jury’s] individual evaluation



                                              7
of the evidence.” The court asked, “[d]oes that make sense?,” to which Juror No. 2

responded, “[y]es.” The trial court again cautioned the jury that “if there is any hesitation

about [the count 1 robbery conviction], I really need to know.”

       It then polled the jury to confirm whether each juror voted to convict defendant of

the count 1 robbery charge. Each juror confirmed it was his or her verdict to convict

defendant of robbery in count 1, and the court announced it was “satisfied with the

polling,” would record the verdict, and would excuse the jury “unless there is anything

else.” Counsel for both defendant and for Brooks responded: “That’s fine.” The trial

court then excused the jury.

       2. Analysis

       Defendant contends the trial court violated sections 1163 and 1164 by not sending

the jury back for further deliberations after several jurors “disagreed with the verdict,”

and he claims this error violated his Fifth, Sixth, and Fourteenth Amendment rights to a

trial by jury, a finding by an impartial unanimous jury, a fair trial, and due process of law.

       Because defendant failed to make a request to the trial court to send the jury back

for further deliberations, he has forfeited his right to assert that the trial court erred. (See

People v. Lessard (1962) 58 Cal.2d 447, 452 [“Where a jury is incompletely polled

[pursuant to § 1163] and no request is made for correcting the error, such further polling

may be deemed waived by defendant, who cannot sit idly by and then claim error on

appeal when the inadvertence could have readily been corrected upon his merely

directing the attention of the court thereto.”].) In any event, there was no error.



                                               8
       Section 1163 states: “When a verdict is rendered, and before it is recorded, the

jury may be polled, at the request of either party, in which case they must be severally

asked whether it is their verdict, and if any one answer in the negative, the jury must be

sent out for further deliberation.” Because neither defendant nor Brooks requested the

jury to be polled, section 1163 is inapplicable. (People v. Lessard, supra, 58 Cal.2d at p.

452 [“The polling of the jury is a right available only upon the request of either party.

[Citation.] A failure to make a proper request imposes no burden upon the court to poll

the jury, nor in the absence of such request does a failure to so poll constitute a denial of

a constitutional right.”].)

       Section 1164, subdivision (a) explains, in pertinent part: “If any juror disagrees

[with the verdict], the fact shall be entered upon the minutes and the jury again sent out;

but if no disagreement is expressed, the verdict is complete, and the jury shall, subject to

subdivision (b), be discharged from the case.” A jury’s verdict is complete when it has

been received and read by the clerk, acknowledged by the jury, and recorded. (People v.

Garcia (2012) 204 Cal.App.4th 542, 551.)

       When the jurors are polled, and the jurors’ answers to a jury poll are equivocal, the

trial court is permitted to inquire further and seek clarification from the jurors rather than

sending the jury out for further deliberations. (People v. Carrasco (2008) 163

Cal.App.4th 978, 986-989, 991-992, fn. 4.) If a juror first answers equivocally, but then

directly states that the verdict is his, his last answer may be accepted. (Id. at pp. 991-992,

fn. 4; People v. Burnett (1962) 204 Cal.App.2d 453, 458.)



                                              9
       In Carrasco, one of the jurors was equivocal when asked during polling how she

reached her decision to convict the defendant. The court spoke with the juror to clarify

why she seemed unsure of her verdict, to which the juror expressed that she was having

second thoughts once she learned she was convicting the defendant of a felony. After

reviewing the jury instruction with the juror, the trial court explained to the juror that her

role was to determine whether the defendant had committed the crimes charged, not to

consider the issue of punishment or penalty. The trial court again asked the juror: “I

want to be satisfied that your vote for guilt as to count 2 . . . ; count 3 . . . ; count 4 . . . ,

that you were satisfied that based upon the evidence you heard, again, and the

instructions on the law that I gave you, the arguments of the attorneys, you were satisfied

that those charges have been proved beyond a reasonable doubt; is that correct?” (People

v. Carrasco, supra, 163 Cal.App.4th at p. 988.) The juror answered, “[y]es” (id. at p.

989), and neither side asked for further deliberations before the trial court accepted the

verdict (id. at pp. 991-992, fn. 4). The Carrasco court concluded that “[u]der these

circumstances, the trial court properly accepted the juror’s last answer.” (Ibid.)

       Similarly here, five jurors expressed hesitation regarding defendant’s robbery

conviction, as they believed they were convicting defendant of “aiding and abetting, not

for actual robbery.” Neither counsel for defendant nor for Brooks asked the court to send

the jury back for further deliberations, even though the court gave them the opportunity

to do so. Furthermore, the trial court properly inquired further of the jurors after several

expressed confusion over the verdict, and it was permitted to accept the jury’s subsequent



                                                 10
response that they had unanimously agreed to convict defendant, rather than sending the

jury back for further deliberations. (People v. Carrasco, supra, 163 Cal.App.4th at pp.

991-992, fn. 4.) After rereading CALCRIM Nos. 400 and 401, and after it advised the

jurors that they each had to “evaluate the evidence as to each defendant separately . . .

because each individual defendant is entitled to your individual evaluation of the

evidence,” the trial court properly accepted the jurors’ last answer that they each decided

to convict defendant of robbery in count 1. (Ibid.)

       We also reject defendant’s assertion that the trial court “coerced” or “coaxed the

jury into agreeing with the verdict” rather than sending the jury back for further

deliberations. Although sections 1163 and 1164 “are intended to reduce the likelihood of

a trial court unduly, even if inadvertently, influencing the jury to reach a particular

outcome,” “asking the jury to clarify its verdict [does] not contravene the procedural

requirements of the statutory scheme . . . .” (People v. Carbajal (2013) 56 Cal.4th 521,

530-532.)

       In any event, the trial court’s decision not to send the jury back for further

deliberations was harmless under the standard of People v. Watson (1956) 46 Cal.2d 818,

836, which applies to claims of “procedural shortcomings,” such as violations of sections

1163 and 1164. (People v. Anzalone (2013) 56 Cal.4th 545, 555-556.) The Watson

harmless error standard requires the reviewing court to determine whether “‘there is a

reasonable probability that in the absence of the error [defendant] would have obtained a

more favorable result. [Citations.]’” (People v. Anzalone, supra, at p. 553.) Although



                                              11
the jurors were initially confused whether they had convicted defendant for “aiding and

abetting, not for actual robbery,” the trial court reread CALCRIM Nos. 400 and 401 to

the jury, and it explained that “as the jury instructions indicate, you evaluate the evidence

as to each defendant separately . . . because each individual defendant is entitled to your

individual evaluation of the evidence.” Because CALCRIM No. 400 specifically stated

that “[a] person is guilty of a crime whether he or she committed it personally or aided

and abetted the perpetrator,” it addressed the jury’s misunderstanding whether it could

convict defendant of robbery if it believed defendant was the aider and abettor rather than

the direct perpetrator. Because the jury received proper instructions that addressed

whether defendant could be convicted of the count 1 robbery charge under an aiding and

abetting theory, it was not reasonably probable that defendant would have obtained a

more favorable result had the trial court sent the jury back for further deliberations.

B. The Trial Court’s Comment That an Aider and Abettor is Equally as Guilty as the

Perpetrator Was Harmless

       Defendant argues that the trial court’s statement that an aider and abettor and a

direct perpetrator are “equally guilty” was legally incorrect and violated his Fifth, Sixth,

and Fourteenth Amendment rights to a fair trial, a trial by jury, and to due process of law,

as an aider and abettor’s criminal liability must be determined from the defendant’s own

mens rea, independent of the intent of the direct perpetrator.

       The People contend defendant forfeited this contention by failing to raise this issue

in the trial court. We agree. Where instructions to the jury are potentially incomplete or



                                             12
misleading, it is incumbent on defendant to request a modification or clarification, and

his failure to do so forfeits the claim of error.4 (People v. Lopez (2011) 198 Cal.App.4th

1106, 1118-1119; People v. Samaniego (2009) 172 Cal.App.4th 1148, 1163.)

Nevertheless, we conclude that, beyond a reasonable doubt, the trial court’s “equally

guilty” statement did not contribute to the verdict obtained in count 1.

       When several jurors expressed confusion whether they had convicted defendant of

robbery, or “only” as an aider and abettor, but not of robbery, the court explained: “[A]s

the instruction indicates, it doesn’t make any difference whether you’re a direct

perpetrator or aider and abettor. If you find beyond a reasonable doubt that either one or

the other, then both are equally guilty, if you find beyond a reasonable doubt that you

were either the perpetrator or aider and abettor.” (Italics added.) It then reread

CALCRIM No. 400, which did not include the “equally guilty” language, but which

stated: “A person is guilty of a crime whether he or she committed it personally or aided

and abetted the perpetrator.” It also reread CALCRIM No. 401, reminding the jury of the

elements of aider and abettor liability. It then admonished the jury that it must “evaluate




       4  In his reply brief, defendant argues that his failure to object to the “equally
guilty” language is not deemed a waiver. (People v. Nero (2010) 181 Cal.App.4th 504,
517-518, fn. 13.) Nero is inapplicable. In Nero, the trial court did not advise the
defendant’s counsel that the jury had asked a follow-up question regarding two
instructions, and it did not consult with defense counsel before it answered the jury’s
question. Because the Nero defendant was not aware of the jury question, it was not
afforded the opportunity to object, or to request a modification or clarification to the
instruction. (Ibid.)


                                             13
the evidence as to each defendant separately . . . because each individual defendant is

entitled to your individual evaluation of the evidence.”

       As defendant points out, an aider and abettor may be guilty of a greater crime than

the direct perpetrator if the defendant’s mens rea was more culpable than that of the

direct perpetrator. (People v. McCoy (2001) 25 Cal.4th 1111, 1117.) The reasoning in

McCoy “leads inexorably to the further conclusion that an aider and abettor’s guilt may

also be less than the perpetrator’s, if the aider and abettor has a less culpable mental

state.” (People v. Samaniego, supra, 172 Cal.App.4th at p. 1164.) Consequently, the

trial court’s use of the term “equally guilty” was potentially misleading, standing alone,

as it suggested defendant could be convicted of robbery based on the evidence against

Brooks. However, the court then made it clear that the jury had to evaluate the evidence

against each defendant separately.

       “‘It is fundamental that jurors are presumed to be intelligent and capable of

understanding and applying the court’s instructions.’ [Citation.] ‘“A defendant

challenging an instruction as being subject to erroneous interpretation by the jury must

demonstrate a reasonable likelihood that the jury understood the instruction in the way

asserted by the defendant. [Citations.]” “‘[T]he correctness of jury instructions is to be

determined from the entire charge of the court, not from a consideration of parts of an

instruction or from a particular instruction.’ [Citations.]” [Citation.]’” (People v.

Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 433.)




                                             14
       After rereading CALCRIM No. 400, the trial court also reread CALCRIM No.

401, which set forth the elements of aider and abettor liability, to the jury. The court also

emphasized that the jury must “evaluate the evidence as to each defendant separately,”

and that “each individual defendant is entitled to your individual evaluation of the

evidence.” Based on the “entire charge of the court” (People v. Bryant, Smith and

Wheeler, supra, 60 Cal.4th at p. 433), the trial court properly instructed the jury as to

aider and abettor liability.

       In any event, the court’s “equally guilty” remark was harmless under Chapman v.

California (1967) 386 U.S. 18, the standard that applies when a party claims a trial

court’s instruction “omits or misdescribes an element of a charged offense.” (People v.

Samaniego, supra, 172 Cal.App.4th at p. 1165.) As noted, the trial court’s “equally

guilty” comment was immediately followed by a rereading of CALCRIM Nos. 400 and

401, along with its explanation that the jury must evaluate the evidence as to defendant

independent of any other codefendants, as “each individual defendant is entitled to your

individual evaluation of the evidence.” Given the instructions provided to the jury, any

error by the trial court’s use of the term “equally guilty” was harmless beyond a

reasonable doubt, because it “‘did not contribute to the verdict obtained.’” (Neder v.

United States (1999) 527 U.S. 1, 17, quoting Chapman v. California, supra, at p. 24.)

       People v. Nero, supra, 181 Cal.App.4th 504 and People v. Loza (2012) 207

Cal.App.4th 332, two cases that defendant relies on to support the proposition that the

trial court’s use of the term “equally guilty” was misleading and prejudicial, are



                                             15
distinguishable. In Nero, the “equally guilty” language was from CALJIC No. 3.00

(People v. Nero, supra, at p. 510, fn. omitted [“‘Each principal, regardless of the extent

or manner of participation, is equally guilty. Principals include those who directly and

actively commit or attempt to commit the acts constituting the crime, or, two, those who

aid and abet the commission or attempted commission of a crime.’”]), while in Loza it

was included in the former version of CALCRIM No. 400 (People v. Loza, supra, at p.

348, fn. omitted [“‘A person is equally guilty of the crime whether he or she committed it

personally or aided and abetted the perpetrator who committed it . . . .’”]). Here, the

version of CALCRIM No. 400 that the trial court provided to and read to the jury did not

include the “equally guilty” language that the Nero and Loza courts concluded were

misleading and prejudicial.

C. The Trial Court Did Not Abuse Its Discretion in Denying Defendant’s Romero Motion

       1. Background—Romero Motion

       When he was 21 years old, defendant suffered his three prior strikes when he was

convicted on April 15, 1992 of kidnapping (§ 207, subd. (a)), rape—incapable of consent

(§ 261, subd. (a)(1)), and anal/genital penetration by object/force (§ 289, subd. (a)(1)).

From that same incident, defendant was also convicted of oral copulation of a minor

under the age of 14 by someone 10 or more years older (§ 288a, subd. (c)(1)) and two

counts of assault with a deadly weapon (§ 245, subd. (a)(1)).

       For these crimes, defendant was sentenced to 26 years in state prison, but was

released on parole in 2005 after serving 13 years. He violated parole within four months



                                             16
of his release, and he violated parole four times between 2006 and 2008, before finally

being discharged from parole in 2009.

       In 2005 and 2009, defendant was convicted of driving under the influence. (Veh.

Code, § 23152, subd. (b).) In 2011 and 2012, defendant was convicted of failing to

register as a sex offender. (Pen. Code, § 290.018, subd. (b).)

       At the hearing on defendant’s Romero motion to dismiss two of his three prior

strikes, defense counsel argued that defendant’s “role in this particular crime was very

minimal.” Counsel also pointed out that defendant’s strikes were all from a single

incident in 1992, and, because the strikes were “very, very old, . . . he deserves not to be

sentenced to twenty-five to life for this particular crime, but something less . . . .” The

People opposed defendant’s Romero motion, arguing that defendant’s prior strikes and

the current offense were violent in nature. The People also pointed out that defendant

was convicted of multiple driving under the influence charges and failed to register as a

sex offender, and argued that defendant’s conduct “is exactly the type of conduct the

three-strikes law was enacted to detect, to make sure that such individuals are kept off the

streets to keep the citizens safe.”

       The trial court denied defendant’s Romero motion, noting defendant’s multiple

parole violations. The trial court stated that it was “not really considering the [driving

under the influence charges]” but that its analysis focused on defendant’s strikes.

Although the strikes were very old, the court found them to be very serious, pointing out

defendant was sentenced to 26 years in prison. Given the serious nature of defendant’s



                                              17
prior strikes, along with his multiple parole violations, it denied defendant’s motion,

commenting that it did “not feel that this is an appropriate case for the Court to grant the

Romero motion and dismiss any of the strikes.”

       2. Analysis

       Defendant contends the trial court abused its discretion when it declined to dismiss

two of his three prior strike convictions, because all three strikes arose from a single

incident in 1992. We reject this contention.

       The “Three Strikes initiative, as well as the legislative act embodying its terms,

was intended to restrict courts’ discretion in sentencing repeat offenders.” (People v.

Superior Court (Romero), supra, 13 Cal.4th at p. 528.) Thus, when a court is asked to

dismiss prior strikes in “furtherance of justice” (§ 1385, subd. (a)), it “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 [‘Three Strike’ law’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.) Examples of factors that a court may consider include the length of

time between the commission of the prior strikes and the current crime (People v. Bishop

(1997) 56 Cal.App.4th 1245, 1251), and whether the current or past offenses involved

violence (People v. Myers (1999) 69 Cal.App.4th 305, 308-310). Most importantly, the

court must look to the defendant’s conduct between the commission of the strike and the



                                             18
current crime. (People v. Williams, supra, at p. 163.) Also, a defendant who suffers

multiple convictions for violent crimes arising out of a single act, but that affects multiple

victims, can be deemed to have suffered multiple strikes under the Three Strikes law.

(People v. Rusconi (2015) 236 Cal.App.4th 273, 280-281.)

       A court’s failure to dismiss or strike a prior conviction allegation is subject to

review under the deferential abuse of discretion standard. (People v. Carmony (2004) 33

Cal.4th 367, 374.) “‘“[T]he burden is on the party attacking the sentence to clearly show

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

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

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

set aside on review.”’” (Id. at pp. 376-377.)

       Here, the trial court did not abuse its discretion in denying defendant’s Romero

motion, as the court recognized that defendant’s past strikes and the current offense

involved the use of violence, and that defendant repeatedly violated the law between the

commission of his prior strikes and the current crime. On this basis, the trial court

reasonably determined that defendant fell within the spirit of the Three Strikes law.

D. Defendant’s Sentence Does Not Constitute Cruel and/or Unusual Punishment

       Defendant also argues that his sentence violates the federal constitutional

proscription against cruel and unusual punishment because his sentence is grossly

disproportionate to the severity of the crime. However, at least one court has concluded

that a “third striker’s 25-year-to-life term is not cruel and unusual under the Eighth



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Amendment,” particularly where the defendant, as defendant here, committed a felony

offense after being convicted of at least two prior “serious” or “violent” felonies. (People

v. Cooper (1996) 43 Cal.App.4th 815, 823.) This is because, “[u]nder the three strikes

law, defendants are punished not just for their current offense but for their recidivism.

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

the imposition of longer sentences for subsequent offenses.” (Id. at pp. 823-824.) “By

enacting the three strikes law, the Legislature acknowledged the will of Californians that

the goals of retribution, deterrence, and incapacitation be given precedence in

determining the appropriate punishment for crimes. Further, those goals were best

achieved by ensuring ‘longer prison sentences and greater punishment’ for second and

third ‘strikers.’” (Id. at p. 824.) As a third strike offender who committed “a felony

offense after being convicted of at least [two] prior ‘serious’ or ‘violent’ felonies” (id. at

p. 823), defendant’s sentence does not constitute cruel or unusual punishment.

                                     V. DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                                  RAMIREZ
                                                                                           P. J.


We concur:

CODRINGTON
                           J.



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SLOUGH
         J.




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