Filed 3/7/14
                          CERTIFIED FOR PUBLICATION

               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                           SECOND APPELLATE DISTRICT

                                    DIVISION EIGHT


THE PEOPLE,                                      B244487

        Plaintiff and Respondent,                (Los Angeles County
                                                 Super. Ct. No. PA071085)
        v.

FRANCISCO SOLIS,

        Defendant and Appellant.



        APPEAL from a judgment of the Superior Court of Los Angeles County.
Dalila C. Lyons, Judge. Affirmed as modified, and remanded.


        Lise M. Breakey, under appointment by the Court of Appeal, for Defendant and
Appellant.


        Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Victoria B. Wilson and Jonathan
J. Kline, Deputy Attorneys General, for Plaintiff and Respondent.



                      _____________________________________
       The People charged Francisco Solis with attempted premeditated murder
(Pen. Code, § 664/187, subd. (a))1 as well as other crimes and special allegations we set
forth below. The charges were tried to a jury. On the attempted premeditated murder
count, the trial court instructed on four uncharged lesser offenses. Each lesser offense
was identified as lesser to the attempted premeditated murder charge; none were
identified as lesser to any other. The offenses instructed upon included “attempted
second degree murders”2 the lesser included offense of attempted voluntary manslaughter
(§§ 664/192), and two lesser related offenses, mayhem (§ 203) and assault with a deadly
weapon (§ 245, subd. (a)(1)). The jury acquitted Solis of the charged attempted
premeditated murder count, “attempted second degree murder” and attempted voluntary
manslaughter. The jury convicted Solis of the two remaining uncharged lesser related
offenses, mayhem and assault with a deadly weapon. This appeal presents the issue of
whether a defendant may be convicted of two separate, uncharged, lesser related offenses
of a single charged greater offense.
       Solis contends the answer is no because he was not on notice that the single charge
of attempted premeditated murder could result in two convictions for lesser crimes, and
the two convictions violate sections 654, 954 and 1159. He argues the remedy is for our
court to strike his aggravated assault conviction. The People argue that a jury may

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

2
        The crime of “attempted second degree murder” was a misnomer. As explained in
People v. Favor (2012) 54 Cal.4th 868 (Favor), there is no substantive crime of
attempted second degree murder. Imposing a greater sentence for an attempted murder
that is willful and premeditated is a matter of punishment, and does not create a greater
degree of attempted murder. “‘[T]he statutory language employed in prescribing an
additional penalty for attempted murder . . . reflects a legislative intent to create a penalty
provision specifying a greater term, rather than a substantive offense.’” (Id. at p. 877,
quoting People v. Bright (1996) 12 Cal.4th 652, 668 (Bright).) The division of a crime
into degrees is exclusively a legislative function. (Bright, supra, at p. 670.) In short, the
offense of premeditated attempted murder is not a separate offense from attempted
murder. (Favor, supra, 54 Cal.4th at p. 877, citing Anthony v. Superior Court (2010) 188
Cal.App.4th 700, 706.) We use the term “attempted second degree murder” only to
accurately reflect the trial court’s instruction to the jury.

                                              2
properly convict a defendant of two uncharged lesser related offenses based upon a single
charged greater offense.
       We hold that Solis’s convictions for two separate, uncharged lesser related
offenses stemming from a single charged greater offense were unauthorized. We modify
the judgment by striking Solis’s conviction for assault with a deadly weapon.
                                          FACTS
       At 1:00 a.m. one morning, Solis went to the home of Judith M., his former
girlfriend. Solis climbed through a bedroom window and began stabbing Judith with a
screwdriver, telling her he had warned her “something bad was going to happen,” and
that she deserved to die. Solis stabbed Judith about 20 times, inflicting wounds to her
neck, arm, chest, face and hands, including a life-threatening wound to her carotid artery.
Later the same day, Solis went to the police and gave a taped interview in which he
confessed that he attacked Judith, but stated he had been drinking beer and was “out of it”
at the time of the incident. Solis also hand wrote a statement implicating himself.
       The People filed an information charging Solis with attempted premeditated
murder (count 1; §§ 664/187, subd. (a)), first degree burglary (count 2; § 459) with the
allegation that another person was present during the commission of the offense
(§ 667.5), and making criminal threats (count 3; § 422). As to count 1, the information
further alleged Solis personally inflicted great bodily injury under circumstances
involving domestic violence (§ 12022.7, subd. (e)), and that he personally used a deadly
weapon in the commission of the attempted premeditated murder (§ 12022, subd. (b)(1)).
The information alleged that Solis had suffered two prior strike convictions (§§ 667,
subds. (b)-(i); 1170.2, subds. (a)-(d)), two prior serious felony convictions (§ 667, subd.
(a)(1)), and that he served four prior prison terms (§ 667.5, subd. (b)).
       The case was tried to a jury. On the attempted premeditated murder charge, the
trial court instructed on the elements of the charged offense. Further, with the express
agreement of the prosecution and defense, the court instructed with an amalgam of lesser
offenses as follows:



                                              3
              “If all of you find that the defendant is not guilty of a greater crime,
       you may find him guilty of a lesser crime, if you are convinced beyond a
       reasonable doubt that the defendant is guilty of that lesser crime. A
       defendant may not be convicted of both a greater and lesser crime for the
       same conduct. Now I will explain to you which charges are affected by this
       instruction:
              “Second degree attempted murder is a lesser crime of attempted
       murder charged in count one.
              “Attempted voluntary manslaughter is a lesser crime of attempted
       murder charged in count one.
              “Mayhem is a lesser crime of attempted murder charged in count
       one.
              “Assault with a deadly weapon is a lesser crime of attempted murder
       charged in count one.
              “It is up to you to decide the order in which you consider each crime
       and the relevant evidence, but I can accept a verdict of guilty of a lesser
       crime only if you have found the defendant not guilty of the corresponding
       greater crime.
              “[¶] . . . [¶]
              “3. If all of you agree that the People have not proven beyond a
       reasonable doubt that the defendant is guilty of the greater crime and you
       also agree that the People have proven beyond a reasonable doubt that he is
       guilty of the lesser crime, complete and sign the verdict form for not guilty
       of the greater crime and the verdict form for guilty of the lesser crime.”
       The trial court instructed the jury on all of the identified uncharged lesser crimes,
and provided verdict sheets for all of the crimes to the jury. As described above, the
court listed each of the uncharged lesser crimes as a lesser offense of the attempted
murder count charged in count 1. (Compare CALCRIM No. 640 with Nos. 3515-3519.)
In other words, the court did not delineate one crime as lesser to count 1, and another

                                              4
crime as lesser to that first identified lesser crime, and, sequentially, for each subsequent
lesser crime.
       During deliberations, the jury asked the trial court: “Can the defendant be
[convicted] of two lesser crimes.” The court responded by advising the jury that its
question was not clear, and then referring the jurors to the court’s original instructions on
greater and lesser crimes as stated above.
       Shortly thereafter, the jury returned verdicts finding Solis not guilty of attempted
premeditated murder in count 1, “attempted second degree murder,” and attempted
voluntary manslaughter. The jury returned verdicts finding Solis guilty of mayhem and
assault with a deadly weapon, both as lesser offenses of count 1. As to these convictions,
the jury found true the allegations that Solis personally used a deadly weapon and
personally inflicted bodily injury. The jury further found Solis guilty of first degree
burglary with another person present during its commission in count 2, and not guilty of
making criminal threats in count 3. Later, Solis admitted three prior strike and four prior
prison term allegations.
       The trial court denied Solis’s Romero3 motion and sentenced him to an aggregate
term of 36 years to life in state prison comprised of a third strike term of 25 years to life
on count 1 for mayhem, plus one year for the deadly weapon enhancement. It struck the
great bodily injury enhancement. The court also designated assault with a deadly weapon
as count 1, and imposed another 25-years-to-life term. The court added an additional one
year on that count for the great bodily injury enhancement, then struck the deadly weapon
enhancement. The court stayed the second count 1, pending completion of the term on
the mayhem count. On the first degree burglary count, the court imposed and stayed
another 25-years-to-life sentence. It imposed a 10-year term for two section 667,
subdivision (a)(1) enhancements. The court struck the prior prison terms, and imposed
various fines and fees which are not at issue in this appeal.



3
       People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).

                                              5
                                       DISCUSSION
I.     The Jury Improperly Convicted Solis of Two Uncharged Lesser Related
       Offenses Based on One Charged Offense in the Information
       Solis requests that we strike his conviction for assault with a deadly weapon and
the related enhancements. He claims the jury had no discretion to convict him of two
felonies where only one was charged because it violates the separation of powers
doctrine, he did not agree to be convicted of two strike offenses, and the two convictions
violate section 654’s prohibition against successive prosecution. The Attorney General
counters that there is no constitutional or statutory problem with the two lesser related
convictions. This court invited the parties to brief the issue of whether the jury was
statutorily authorized to convict Solis of two uncharged lesser related offenses when the
information only charged a single offense. Both Solis and the Attorney General
submitted briefs.
       We start with this – we know of no published case that allows multiple lesser
related offense convictions to stem from one charged offense.4 We add that the parties
have not directed us to one. Writing on a blank slate, we determine two lesser related
offense convictions may not stem from one charged offense.
       1. Statutory Authority
       The Attorney General argues we should interpret section 1159 to allow Solis’s
multiple lesser related convictions. We disagree.
       Section 1159 states that “[t]he jury, or the judge if a jury trial is waived, may find
the defendant guilty of any offense, the commission of which is necessarily included in
that with which he is charged, or of an attempt to commit the offense.” The Attorney
General points out that section 1159 does not expressly prohibit multiple convictions of

4
       We note that this issue, in the context of lesser included offenses, is currently
pending before the California Supreme Court. (See, People v. Eid, G046129.) The
California Supreme Court has indicated that case presents the issue of whether a
defendant can be convicted of two separate, uncharged, lesser included offenses
stemming from a single charged offense if the lesser offenses are not included in each
other.

                                              6
uncharged lesser offenses. Next, while acknowledging that “any” modifies the word
“offense” in the singular, she maintains that these words do not suggest the Legislature
intended to limit the number of offenses that may follow from a single charged offense.
Relying upon section 7, which provides that “the singular number includes the plural and
the plural the singular,” she instead argues we should interpret the word “offense” in
section 1159 to include “offenses.”
       Notwithstanding the interesting discourse on the English language set forth in her
briefing, we believe that applying the general provision set out in section 7 would be
inappropriate in this case. “ ‘ “ ‘ “General terms should be so limited in their application
as not to lead to injustice or oppression or an absurd consequence.” ’ ” ’ ” (People v.
Navarro (2007) 40 Cal.4th 668, 680 (Navarro).) Although Navarro did not arise in the
same procedural context as Solis’s current case, much of Navarro’s reasoning may be
applied to the multiple conviction issues raised here. In Navarro, a jury convicted the
defendant of attempted kidnapping during the commission of a carjacking, among other
counts. The Court of Appeal found the evidence was not sufficient to support the
conviction. However, the Court of Appeal concluded it had authority to modify the
judgment to reflect convictions for attempted kidnapping and attempted carjacking as
lesser included offenses of the greater charged offense of attempted kidnapping during
the commission of a carjacking. The court modified the judgment accordingly, then
found the evidence sufficient to support the convictions on the two lesser offenses. (Id. at
pp. 672-675.)
       The Supreme Court granted review, and thereafter addressed “the narrow question
of whether an appellate court, upon finding insufficient evidence supports a conviction
for one offense, may modify the judgment to reflect a conviction for two lesser included
offenses.” (Navarro, supra, 40 Cal.4th at p. 675.) After reviewing the language and
history of the statutes authorizing an appellate court to modify a judgment in a criminal
action, namely sections 1181, subdivision 6, and 1260, the Supreme Court concluded the
statutes do not authorize an appellate court to modify a judgment to reflect convictions
for two lesser included offenses upon finding insufficient evidence of a single greater

                                             7
offense. (Navarro, supra, at pp. 680-681.) The court reasoned: “It would be
inappropriate to apply the general provision of section 7 that ‘the singular number
includes the plural’ to sections 1181, subdivision 6, and 1260 . . .” so as to authorize
modifying a judgment to reflect convictions for two lesser included offenses because to
do so would be a “ ‘departure in our criminal jurisprudence’ and an even more ‘startling
innovation.’ ” (Navarro, supra, at p. 680.)
       In Solis’s case, we deal with a different statute, namely section 1159, than was
involved in Navarro. Nevertheless, we find its reasoning on point and refuse to interpret
section 1159 to allow the number of convictions in a case to exceed the number of
charges in the case. No case has interpreted this statute to allow convictions of multiple
lesser offenses to result from one charged offense. Section 1159 allows for a conviction
of one lesser included offense. In our view, the statutory scheme does not disclose any
legislative intent to allow two convictions to result from one charged offense, which is
what occurred in Solis’s case.
       2. Case Law
       Nor does case law support the Attorney General’s position that multiple uncharged
lesser related convictions may be wrought from one charged greater offense. We turn
first to the authorities governing lesser included offenses. A defendant may be convicted
of an uncharged offense when it is a lesser included or lesser related offense of a charged
crime. (See People v. Reed (2006) 38 Cal.4th 1224, 1227; People v. Birks (1998)
19 Cal.4th 108, 117 (Birks); see also § 1159.) A “lesser offense is necessarily included in
a greater offense if either the statutory elements of the greater offense, or the facts
actually alleged in the accusatory pleading, include all the elements of the lesser offense,
such that the greater cannot be committed without also committing the lesser.”
(Birks, supra, at p. 117.) But a defendant may not be convicted of both a greater and a
lesser included offense. (People v. Moran (1970) 1 Cal.3d 755, 763.) In fact, a
conviction on a lesser included offense is an implied acquittal of the greater offense.
(See People v. Superior Court (Marks) (1991) 1 Cal.4th 56, 71, 74-76.) As is the case
with lesser related offenses, we are also unaware of any published case that allows

                                               8
multiple lesser included offense convictions stemming from one charged offense.
(See fn. 4, ante.) Again, the parties have not cited us to one.
       The rules noted above do not squarely address the issue in Solis’s case. Solis
stands convicted of two separate, uncharged lesser related offenses stemming from the
one charged greater offense of attempted premeditated murder. Neither assault with a
deadly weapon nor mayhem are lesser included offenses of attempted premeditated
murder. In addition, assault with a deadly weapon is not a lesser included offense of
mayhem, such that we can resolve this case by determining Solis was convicted of both a
greater and a lesser offense thereby allowing us to simply dismiss the lesser.5
       We look next to the rules governing lesser related offenses. In the now-overruled
case of People v. Geiger (1984) 35 Cal.3d 510 (Geiger), the California Supreme Court
held that the trial court is required to instruct on lesser offenses when the defendant
requests it, if the offense is closely related to the charged offense and the evidence
provides a basis for finding the defendant guilty of the lesser, but innocent of the charged
offense. In addition, the California Supreme Court indicated the rule barring conviction
of both a greater and lesser offense holds true as to lesser related offenses. Hence,
“[t]he conviction of a [lesser] related offense constitutes an acquittal of the charged
offense.” (Geiger, supra, at p. 528.)
       Fourteen years later, in Birks, the Supreme Court reversed Geiger, and ruled that a
defendant is not entitled to instructions on a lesser related offense. (Birks, supra,
19 Cal.4th at pp. 116-137, reversing Geiger, supra, 35 Cal.3d 510.) However, the court
stated the following with regard to agreements for instructions on lesser related charges:
“[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.”
(Birks, supra, at p. 136, fn. 19.)

5
        Because there was no accusatory pleading charging either of these offenses, we
need only consider if the statutory elements of the greater offense include all the elements
of the lesser offense, such that the greater cannot be committed without also committing
the lesser. (Birks, supra, at p. 117.) They do not; mayhem does not require the use of a
deadly weapon. (People v. Ausbie (2004) 123 Cal.App.4th 855, 863, fn. 5.)

                                              9
       The main difference between instructing on lesser included and lesser related
offenses lies in the fact that instruction on lesser included offenses is mandatory, while
instructions on lesser related offenses must be agreed to by both parties. Seizing on the
fact that a defendant must agree to the instruction on lesser related offenses, the Attorney
General posits that a defendant impliedly agrees to the possibility of being convicted of
two offenses when he agrees to instruction on two lesser related offenses. Applying that
logic here, the Attorney General asserts that when Solis did not object to the court
instructing on both mayhem and assault with a deadly weapon as lesser related offenses
to attempted premeditated murder, he also agreed that he could be convicted of both
offenses.
       The Attorney General relies on People v. Toro (1989) 47 Cal.3d 966, 973 (Toro)
(disapproved on other grounds in People v. Guiuan (1998) 18 Cal.4th 558, 568, fn. 3) to
support this proposition. In Toro, the defendant did not object to an instruction on a
lesser related offense and verdict forms were submitted to the jury on the crime. When
the defendant was convicted of the lesser related offense, the Court of Appeal reversed
the conviction because the lesser related offense was neither charged nor included within
any of the charged offenses. The California Supreme Court reversed, and found that the
lack of objection at the trial court level constituted implied consent to the jury’s
consideration of the lesser related offense. (Toro, supra, at p. 978.) We do not find Toro
dispositive. We see a difference between impliedly consenting to being convicted of a
single lesser related offense by failing to object to instructions on it and being convicted
of two separate offenses stemming from one greater, especially given that common
practice has never anticipated such a result.
       The ramifications of allowing two convictions to stem from one are also
significant. The two lesser related convictions for which Solis was convicted are each
strike qualifying offenses, as mayhem is both a serious and violent felony (see, §§ 667.5,
subd. (c)(2), 1192.7, subd. (c)(2)), and assault with a deadly weapon is a serious felony
(§ 1192.7, subd. (c)(31)). (§§ 667, subd. (d)(1), 1170.12, subd. (b)(1).) While section
654 would preclude multiple punishment for the two crimes, a defendant who suffers two

                                                10
uncharged strike convictions from a single count, as opposed to only a single charged
strike offense, faces significantly different potential consequences in future criminal
prosecutions. A defendant is treated differently depending upon whether he is a second
or third strike offender. The impact upon a future conviction is momentuous– a second
strike offender may face a doubled sentence, while a third strike offender faces a
potential life sentence. (§§ 667, subds. (e)(1) & (2); 1170.12, subds. (c)(1) & (2).)
Although a sentencing court might be found to abuse its discretion in failing to dismiss
one of two prior strike convictions when they are both based upon the same act (see
People v. Benson (1998) 18 Cal.4th 24, 36, fn. 8 [leaving the abuse of discretion issue
open]; see and compare People v. Burgos (2004) 117 Cal.App.4th 1209, 1214 [failure to
dismiss one of two prior strikes stemming from the same act amounted to abuse of
discretion] with People v. Scott (2009) 179 Cal.App.4th 920 [failing to dismiss one of
two prior strikes stemming from the same act not an abuse of discretion]), it is not a
foregone conclusion that two strikes from a single prior act will not negatively impact a
defendant in future criminal proceedings.
       In addition, the strike punishment consequences of Solis’s multiple convictions are
not our sole concern. We believe Solis had the right to know that he faced the potential
of being convicted of two separate, uncharged lesser related offenses, both potential
strikes, when charged with only one offense. Had Solis been so informed, he might have
chosen to pursue different plea resolution avenues. It is also entirely possible Solis
would not have agreed to a lesser related instruction at all if he had known he could be
convicted of more than one.
       Ultimately, we find the result in Solis’s current case is unjust because he had no
reason to expect that he could suffer two strike convictions when charged with only a
single strike offense. We decline to interpret section 1159, or the relevant case law, to
authorize such an unexpected outcome. Allowing only one conviction for an uncharged
lesser related offense of a greater charged offense also eliminates another issue Solis has
raised, namely, whether a defendant has a constitutional due process right to notice of the
number of potential convictions he or she may face based on a single charged offense.

                                             11
       We conclude the jury’s convictions of Solis of two distinct, uncharged lesser
related offenses from a single charged greater crime was not authorized by statute or case
law. Under any standard, the error was prejudicial because Solis stands wrongly
convicted of two offenses based upon an information charging only one offense. We do
not foreclose the possibility, however, that a defendant may explicitly agree to being
convicted of two lesser related offenses in lieu of one greater offense. The advantages of
being convicted of two lesser related offenses may well be more desirable for a defendant
in a given situation. We simply hold that in this case, it would be unfair for the defendant
to suffer these consequences since there was no such agreement, and previous case law
and statutory authority never dictated this result.
       This brings us to the question of remedy. In Navarro, the Supreme Court stated:
“[W]here there are multiple lesser included offenses supported by the evidence at trial,
[an appellate] court exercising its discretion to modify the judgment . . . should choose
the offense with the longest prescribed prison term so as to effectuate the fact finder’s
apparent intent to convict the defendant of the most serious offense possible.” (Navarro,
supra, 40 Cal.4th at p. 681.) The Supreme Court remanded the case to the Court of
Appeal with directions to strike its prior “two-for-one” modification to the extent it
reflected a conviction for attempted kidnapping, the offense with the lesser punishment,
and to remand the cause to the trial court for resentencing accordingly. (Navarro, supra,
40 Cal.4th at p. 681.)
       We find a similar remedy appropriate in Solis’s current case. We earlier
acknowledged that in Solis’s case, we deal with different statutes than those in Navarro.
Nevertheless, we find Navarro’s “one-for-one” analysis makes equal sense here. This
reasoning precludes multiple guilty verdicts on lesser related offenses stemming from one
charged offense just as it did in Navarro to preclude modification of a judgment from one
conviction into multiple convictions. We, as the Supreme Court in Navarro, will leave
undisturbed the conviction with the longest prison term. Mayhem is punishable by two,
four or eight years in state prison. (§ 204.) On the other hand, assault with a deadly
weapon is punishable by two, three or four years in state prison. (§ 245, subd. (a)(1).)

                                              12
Because mayhem has the longest prescribed prison term, we strike Solis’s conviction for
aggravated assault. Resentencing is not needed inasmuch as the trial court stayed
imposition of sentence on the aggravated assault conviction under section 654. However,
we direct the trial court to issue a new abstract of judgment which does not reflect a
conviction for aggravated assault.
       Having determined that the statutory law precludes Solis from suffering
convictions for two uncharged lesser related offenses, we decline to reach his remaining
arguments.
II.    There Was No Error in Failing to Strike a Prior
       Solis contends the trial court abused its discretion in denying his motion to dismiss
two of his three strikes, two 1983 convictions for assault by means of force likely to
produce great bodily injury (§ 245, subd. (a)(1)), under Romero. He argues it was an
abuse of discretion to sentence on strikes he suffered roughly 30 years before he
committed his attack on the victim in his current case. We disagree.
       In Romero, the state Supreme Court ruled that the Three Strikes law did not
remove a sentencing court’s discretion to dismiss a defendant’s prior strike or strikes to
achieve a punishment in the furtherance of justice. (Romero, supra, 13 Cal.4th at p. 504.)
In People v. Williams (1998) 17 Cal.4th 148 (Williams), the court explained that a
sentencing court’s exercise of discretion to dismiss a prior strike is to be guided by the
following standard: may the defendant, in light of his or her current crime, and his or her
criminal history, background, character, and prospects, be deemed “outside the spirit” of
the Three Strikes law, in whole or in part, and, hence, be treated as though he or she had
not suffered the prior strike conviction. (Id. at p. 161.) When the factors cited in
Williams, supra, 17 Cal.4th 148 “manifestly support the striking of a prior conviction and
no reasonable minds could differ[,] the failure to strike would constitute an abuse of
discretion.” (People v. Carmony (2004) 33 Cal.4th 367, 376-378.)
       We do not find an abuse of discretion in Solis’s current case. Solis was convicted
in the instant case of mayhem, and the jury found true two enhancements to that crime --
that he personally used a deadly and dangerous weapon, and that he inflicted great bodily

                                             13
injury under circumstances involving domestic violence. He was also convicted of first
degree burglary with a true finding on the allegation that another person was present
during its commission. The facts reveal a particularly violent attack with a screwdriver.
Solis stabbed Judith about 20 times, inflicting wounds to her neck, arm, chest, face and
hands, including a life-threatening wound to her carotid artery. Solis suffered three prior
strike convictions, two for aggravated assault in 1983, and one for first degree burglary in
1995. He suffered four convictions with a prison term prior to his attack on the victim in
this case. The probation officer’s report shows additional incidents involving Solis in the
criminal justice system. In light of all of the circumstances, the trial court did not abuse
its discretion in denying Solis’s Romero motion. The record does not “manifestly support
the striking of a prior conviction” because Solis is not a defendant who must be deemed
“outside the spirit” of the Three Strikes law. On the contrary, Solis’s current offense and
his criminal history support sentencing under the Three Strikes law.
       To the extent Solis contends his sentence violates the Eighth Amendment’s
prohibition against cruel and unusual punishment unless his Romero motion is granted,
we disagree. The length of a sentence will be deemed to violate the Eighth Amendment
only under a “narrow proportionality” analysis. (Ewing v. California (2003) 538 U.S. 11,
20.) We do not find Solis’s sentence so disproportionate to his crime and his criminal
history that it violates constitutional sentencing limits.
                                       DISPOSITION
       We modify the judgment by striking Solis’s conviction for assault with a deadly
weapon. The judgment is affirmed as modified. The cause is remanded to the trial court
to issue a new abstract of judgment in conformity with this opinion.
       CERTIFIED FOR PUBLICATION


                                                             BIGELOW, P. J.
We concur:


              RUBIN, J.                     FLIER, J.

                                              14
