Filed 5/23/14 P. v. Hawkins CA1/4
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                 DIVISION FOUR


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A135075
v.
ANDRE HAWKINS,                                                       (San Francisco County
                                                                     Super. Ct. No. 212064)
         Defendant and Appellant.


         Defendant Andre Hawkins appeals a judgment entered upon a jury verdict finding
him guilty of felony grand theft (Pen. Code,1 § 487, subd. (c)) (count one), theft from an
elder or dependent person (§ 368, subd. (d)) (count two), and resisting arrest (§ 148, subd.
(a)(1)) (count four). The jury also found true seven prior conviction and prison term
allegations, including five “strike” convictions: separate convictions for second degree
robbery (§§ 211, 212.5, subd. (b)) in 1976, 1979, and 1991, and two convictions for lewd
and lascivious acts with a minor under the age of 14 by means of force or fear in 1999
(§ 288, subd. (b)(1)). (§§ 667, subds. (d) & (e), 667.5, subd. (b), 1170.12, subds. (b) &
(c).) He was sentenced under the Three Strikes law to imprisonment for 25 years to life.
         On appeal, defendant contends the court erred in calculating his presentence
conduct credits and the amount of his fines, that the length of his sentence violated his
constitutional rights, and that the court abused its discretion in declining to dismiss some



         1
             All undesignated statutory references are to the Penal Code.


                                                             1
or all of his prior convictions. We shall modify the judgment to increase defendant’s
conduct credits and reduce his restitution fine, and otherwise affirm the judgment.
                                    I.   BACKGROUND
       In 2009, the victim of the theft, then approximately 84 years old, withdrew $200
from a bank, put the money in her wallet, and returned to the basement parking lot where
her car was parked. She opened the door of her car and began to sit down, the wallet still
in her hand. Suddenly, she realized someone had taken her wallet from her hand. She
screamed, turned, and saw a man running toward the stairs. She followed him. At the
bottom of the stairs, she looked up and saw a man she later identified as defendant. The
man had distinctive red hair, apparently dyed. A bystander told her defendant then ran
off. The victim called 911 and reported the crime.
       A police officer saw defendant on a Muni train and saw that he matched the
description of the thief. He stopped the train; defendant made eye contact with him and
then left the train. The officer identified himself and told defendant to stop. Defendant
said something like, “No, man, I’m not stopping.” The officer chased him and pinned
him against the fence with the aid of other officers who had arrived. When they caught
him, his arms were making a throwing motion. Defendant flailed his arms and tried to
step away. It took three officers to handcuff him. A search revealed $207 on defendant’s
person, $200 of which was in denominations that matched those taken from the victim.
The victim’s wallet was found a few feet away.
       The trial court imposed a prison sentence of 25 years to life for count one in
accordance with the Three Strikes law and a concurrent four-month sentence for count
four, stayed the sentence on count two pursuant to section 654, and stayed the prior
prison terms for purposes of sentencing. At the February 1, 2012 sentencing hearing, the
court granted 913 days of credit for actual time served, and limited conduct credits to 15
percent, or 136 days of conduct credit. In doing so, the court stated that because
defendant had suffered two prior serious felony convictions, he was not entitled to have
his credits calculated pursuant to section 4019, which would offer more generous conduct



                                             2
credits. The court imposed a restitution fine of $6,000 pursuant to section 1202.4, and a
parole revocation fine of $5,000 pursuant to section 1202.45.
                                      II. DISCUSSION
   A. Conduct Credits
       1. Statutory Background
       A criminal defendant is entitled to accrue presentence credits both for actual time
served under section 2900.5 and conduct credits—or credits for good behavior and
performing additional labor—under section 4019. (People v. Dieck (2009) 46 Cal.4th
934, 939 & fn. 3; People v. Kennedy (2012) 209 Cal.App.4th 385, 395 (Kennedy).)
Defendant contends that (1) under principles of equal protection, the trial court should
have calculated his presentence credits pursuant to an amendment to section 4019 that
became effective in October 2011, and that (2) even under the earlier version of section
4019, he was entitled to additional custody credits. Moreover, in an argument made for
the first time in his reply brief, defendant argues that under the terms of the most recent
version of section 4019—as distinct from under principles of equal protection—he was
entitled to the benefit of the amended statute for the time he served in custody after the
effective date of the amendment.
       Defendant committed his offenses in 2009. At that time, “conduct credits under
Penal Code section 4019 could be accrued at the rate of two days for every four days of
actual time served in presentence custody. (Stats. 1982, ch. 1234, § 7, p. 4554 [former
§ 4019, subd. (f)].) Effective January 25, 2010, the Legislature amended Penal Code
section 4019 in an extraordinary session to address the state’s ongoing fiscal crisis.
Among other things, Senate Bill No. 3X 18 (2009–2010 3d Ex. Sess.) amended section
4019 such that defendants could accrue custody credits at the rate of two days for every
two days actually served, twice the rate as before except for those defendants required to
register as sex offenders, those committed for serious felonies (as defined in § 1192.7), or
those who had prior convictions for violent or serious felonies. (Stats. 2009, 3d Ex. Sess.
2009–2010, ch. 28, §§ 50, 62 [Pen. Code, former § 4019, subds. (b), (c), & (f)].)
[¶] Effective September 28, 2010, Penal Code section 4019 was amended again to restore


                                              3
the presentence conduct credit calculation that had been in effect prior to the January
2010 amendments, eliminating one-for-one credits.” (Kennedy, supra, 209 Cal.App.4th
at p. 395.)
       In 2011, in connection with the “ ‘2011 Realignment Legislation addressing public
safety’ ” (Stats. 2011, ch. 15, § 1), section 4019 was amended to restore one-for-one
conduct credits. (People v. Ellis (2012) 207 Cal.App.4th 1546, 1549 (Ellis); Kennedy,
supra, 209 Cal.App.4th at pp. 395–396; § 4019, subds. (b), (c), & (f).) These increased
credits are available regardless of whether a defendant—like defendant here—has been
previously convicted of a serious or violent felony. (§ 4019.) Pursuant to an amendment
to the realignment legislation (Stats. 2011, 1st Ex. Sess. 2011–2012, ch. 12, § 35, eff.
Sept. 21, 2011, operative Oct. 1, 2011), subdivision (g) of section 4019 states: “The
changes in this section as enacted by the act that added this subdivision shall apply to
prisoners who are confined to a county jail, city jail, industrial farm, or road camp for a
crime committed on or after the effective date of the act.” Subdivision (h) states: “The
changes to this section enacted by the act that added this subdivision shall apply
prospectively and shall apply to prisoners who are confined to a county jail, city jail,
industrial farm, or road camp for a crime committed on or after October 1, 2011. Any
days earned by a prisoner prior to October 1, 2011, shall be calculated at the rate required
by the prior law.”
       2. Conduct Credits for Time Served After October 1, 2011
       Defendant contends he is entitled to one-for-one presentence conduct credits for
the time he spent in custody after October 1, 2011, the effective date of the October
amendments to section 4019.2
       Kennedy explained that the Legislature made the 2011 amendment reinstating one-
for-one conduct credits “applicable to crimes committed on or after October 1, 2011, the
operative date of the amendments, expressing legislative intent for prospective

       2
         Although defendant did not raise this issue in the trial court, we will consider it
as it presents a pure question of law on undisputed facts. (See People v. Yeoman (2003)
31 Cal.4th 93, 118; People v. Aguirre (1997) 56 Cal.App.4th 1135, 1139 (Aguirre).)


                                              4
application only.” (Kennedy, supra, 209 Cal.App.4th at pp. 395–396.) Thus, under this
amendment, “if A commits a crime on September 30, 2011, and B commits a crime on
October 2, 2011, A will receive a lower level of conduct credits than B, even if their time
in custody begins on the same day, e.g., October 3, 2011, because A committed his crime
before October 1, 2011, and B committed his crime ‘on or after October 1, 2011.’
(§ 4019, subd. (h), as amended by Stats. 2011, ch. 39, § 53.)” (People v. Verba (2012)
210 Cal.App.4th 991, 994 (Verba); see also Ellis, supra, 207 Cal.App.4th at p. 1553
[“[T]he Legislature’s clear intent was to have the enhanced rate apply only to those
defendants who committed their crimes on or after October 1, 2011.”].)
               a. Statutory Construction
       In his opening brief, defendant does not dispute this interpretation of section 4019;
that is, he does not dispute that under the terms of the 2011 amendment to section 4019,
one-for-one credits are unavailable to defendants who committed their crimes before
October 1, 2011. In his reply brief, however, he makes a new argument: that the
reference in section 4019, subdivision (h), to prospective application does not mean that
defendants who committed their crimes before October 1, 2011 are not entitled to any of
the benefits of the increased conduct credits, but rather that they are entitled to increased
conduct credits only for the time they spent in custody after the effective date of the
amendment. According to defendant, the first sentence of subdivision (h) of section 4019
refers to two groups: those who were already in custody as of October 1, 2011, and those
who offended after that date; as to those already in custody, the conduct credit earned
before October 1, 2011 should be calculated under the previous formulation, and the
credit earned after that date should be calculated prospectively, that is, under the new
formulation.
       As a general matter, we do not consider arguments made for the first time in an
appellant’s reply brief unless good cause is shown for failure to present them earlier.
(See People v. Whitney (2005) 129 Cal.App.4th 1287, 1298; People v. Adams (1990) 216
Cal.App.3d 1431, 1441, fn. 2; People v. Speegle (1997) 53 Cal.App.4th 1405, 1418,
fn. 8.) Defendant does not explain his failure to present this argument earlier, and the


                                              5
claim is therefore forfeited. In any case, the published cases that have considered this
question have unanimously concluded the enhanced conduct credits are available only to
those defendants who committed their offenses on or after October 1, 2011, and we are
not persuaded by defendant’s argument that those cases were wrongly decided. (See
People v. Miles (2013) 220 Cal.App.4th 432, 436; People v. Rajanayagam (2012) 211
Cal.App.4th 42, 48–52 (Rajanayagam); Kennedy, supra, 209 Cal.App.4th at pp. 399–
400; Ellis, supra, 207 Cal.App.4th at p. 1553; see also People v. Lara (2012) 54 Cal.4th
896, 906, fn. 9 [October 2011 amendment “expressly applies only to prisoners who are
confined to a local custodial facility ‘for a crime committed on or after October 1,
2011.’ ”; People v. Brown (2012) 54 Cal.4th 314, 322–323, fn. 11 (Brown) [“changes to
presentence credits expressly ‘apply prospectively . . . to prisoners who are confined to a
county jail [or other local facility] for a crime committed on or after October 1,
2011.’ ”].)
              b. Equal Protection
       Defendant contends he was deprived of his constitutional right to equal protection
of the law when he was denied one-for-one conduct credit for the presentence time he
served after October 1, 2011. Defendant argues that: (1) during the time after October 1,
2011, he was similarly situated to offenders who committed crimes after that date, but
was treated differently; (2) this court should apply strict scrutiny to the disparate
treatment because it affects his fundamental interest in personal liberty; and (3) there is
no adequate ground for allowing otherwise identical offenders to serve prison terms of
different lengths based on the dates on which they offended.
       The cases considering this issue have uniformly rejected defendant’s position.
Rajanayagam is directly on point. The defendant there committed his crimes on
August 20, 2011, and pled guilty on October 31, 2011. He contended the enhanced
conduct credits of section 4019 should be applied to all of the time he served on or before
October 1, 2011. (Rajanayagam, supra, 211 Cal.App.4th at p. 46.) The Court of Appeal
first concluded, as we have already discussed, that as a matter of statutory construction
the enhanced credits applied only to those who committed their crimes on or before


                                              6
October 1, 2011. (Id. at pp. 48–52.) The court went on to consider whether this result
violated the defendant’s right to equal protection of the law. The court explained: “The
first prerequisite to a meritorious claim under the equal protection clause is a showing the
state has adopted a classification that affects two or more similarly situated groups in an
unequal manner. [Citations.] . . . If the first prerequisite is satisfied, we proceed to
judicial scrutiny of the classification. Where, as here, the statutory distinction at issue
neither touches upon fundamental interests nor is based on gender, there is no equal
protection violation if the classification bears a rational relationship to a legitimate state
purpose. [Citations.] Under the rational relationship test, a statutory classification that
neither proceeds along suspect lines nor infringes fundamental constitutional rights must
be upheld against equal protection challenge if there is any reasonably conceivable state
of facts that could provide a rational basis for the classification.” (Id. at p. 53.) The court
concluded the two affected classes—“(1) those defendants who are in jail on and/or after
October 1, 2011, who committed an offense on or after October 1, 2011, and (2) those
defendants who are in jail on and/or after October 1, 2011, who committed the same
offense before October 1, 2011”—were similarly situated for purposes of the October
2011 amendment to section 4019. (Rajanayagam, supra, 211 Cal.App.4th at p. 53.)
       The court then went on to note that, although the purpose of conduct credits in
general is to provide inmates with incentives to work and behave, the October 2011
amendments to section 4012 were part of the Realignment Act, the purposes of which
were “ ‘to reduce recidivism and improve public safety, while at the same time reducing
corrections and related criminal justice spending.’ ” (Rajanayagam, supra, 211
Cal.App.4th at pp. 54–55.) The court then concluded the classification bore a rational
relationship to cost savings; the court reasoned that “equal protection of the laws does not
forbid statutes and statutory amendments to have a beginning and to discriminate
between rights of an earlier and later time,” (id. at p. 55) and that in choosing October 1,
2011 as the effective date of the amendment, “the Legislature took a measured approach
and balanced the goal of cost savings against public safety. The effective date was a
legislative determination that its stated goal of reducing corrections costs was best served


                                               7
by granting enhanced conduct credits to those defendants who committed their offenses
on or after October 1, 2011. To be sure, awarding enhanced conduct credits to everyone
in local confinement would have certainly resulted in greater cost savings than awarding
enhanced conduct credits to only those defendants who commit an offense on or after the
amendment’s effective date. But that is not the approach the Legislature chose in
balancing public safety against cost savings. [Citation.] Under the very deferential
rational relationship test, we will not second-guess the Legislature and conclude its stated
purpose is better served by increasing the group of defendants who are entitled to
enhanced conduct credits when the Legislature has determined the fiscal crisis is best
ameliorated by awarding enhanced conduct credit to only those defendants who
committed their offenses on or after October 1, 2011.” (Rajanayagam, supra, 211
Cal.App.4th pp. 55–56; see also Verba, supra, 210 Cal.App.4th at p. 995 [increased
conduct credits were part of larger measure designed to save the state money]; Ellis,
supra, 207 Cal.App.4th at pp. 1549, 1551–1553 [no equal protection violation in denying
enhanced conduct credits for any of the time a defendant spent in custody where
defendant committed crime before October 1, 2011 and was sentenced on October 13,
2011].)3


       3
          We reject defendant’s argument that we must apply strict scrutiny to this
classification. Defendant relies on People v. Olivas (1976) 17 Cal.3d 236, which applied
strict scrutiny review to a statute that allowed misdemeanants between the ages of 16 and
21 to face a longer period of confinement if treated as a juvenile than if treated as an
adult. Our Supreme Court has since made clear, however, that the reach of Olivas is not
as broad as defendant suggests. Rather, “Olivas ‘ “requires only that the boundaries
between the adult and juvenile criminal . . . systems be rigorously maintained” ’ and does
not require ‘ “the courts to subject all criminal classifications to strict scrutiny requiring
the showing of a compelling state [interest] therefor.” ’ ” (People v. Ward (2005) 36
Cal.4th 186, 218.) As our high court has explained, despite language in Olivas that
“could be interpreted to require application of the strict scrutiny standard whenever one
challenges upon equal protection grounds a penal statute or statutes that authorize
different sentences for comparable crimes, because such statutes always implicate the
right to ‘personal liberty’ of the affected individuals, . . . Olivas properly has not been
read so broadly.” (People v. Wilkinson (2004) 33 Cal.4th 821, 837; see also People v.
Turnage (2012) 55 Cal.4th 62, 74 [“A criminal defendant has no vested interest ‘ “in a

                                              8
       Kennedy reached a similar conclusion. The defendant there committed his crime
on March 11, 2011, was sentenced on November 17, 2011, and argued on appeal that he
was entitled to enhanced conduct credits for all of the time he spent in custody before
sentencing. (Kennedy, supra, 209 Cal.App.4th at p. 388.) The court first concluded that
defendant was not similarly situated to defendants who committed their crimes before
October 1, 2011, because the correctional purposes of conduct credits would not be
served by “rewarding prisoners who served time before the incentives [for good
behavior] took effect and thus could not have modified their behavior in response.” (Id.
at p. 397, citing Brown, supra, 54 Cal.4th at pp. 328–329.) The court went on to
conclude that even if, during the time the defendant spent in custody after October 1,
2011, he was similarly situated to others who committed their crimes after that date, there
was no equal protection violation: the classification was properly reviewed for a rational
relationship to a legitimate state purpose, and such a relationship could be seen in a
legislative goal to preserve the deterrent effect of the criminal law as it stood at the time
the defendant committed his crimes. (Kennedy, supra, 209 Cal.App.4th at pp. 397–399.)
       In light of this consistent authority, we reject defendant’s argument that he was
entitled to enhanced conduct credits under section 4019 for the time he spent in custody
after October 1, 2011.
       3. Limitation of Credits to 15 Percent
       The trial court concluded defendant was not entitled to have his presentence
credits calculated in accordance with section 4019 because he had suffered two prior
serious felony convictions; the court therefore limited defendant’s conduct credits to 15
percent of his actual time served. Defendant argues that his credits should not have been
so limited, and that they should instead have been calculated in accordance with section


specific term of imprisonment or in the designation a particular crime receives.” ’ ”) The
court has thus firmly rejected a broad interpretation of Olivas that would require
legislative classifications in criminal laws, because they may result in varying
deprivations of liberty, to be subjected to strict scrutiny. (Wilkinson, supra, 33 Cal.4th at
pp. 837–838; Ward, supra, 36 Cal.4th at p. 218.)


                                              9
4019. Although defendant did not raise this contention below, it presents a pure question
of law, and we will consider it now. (Aguirre, supra, 56 Cal.App.4th at p. 1139.)
       Section 2933.1, subdivisions (a) and (c), provide that, notwithstanding section
4019, a person who is convicted of a violent felony (§ 667.5, subd. (c)) may not accrue
more than 15 percent of worktime credit before being placed in prison. The crimes of
which defendant was convicted, felony grand theft (§ 487, subd. (c)), theft from an elder
or dependent person (§ 368, subd. (d)), and resisting arrest (§ 148, subd. (a)(1)), are not
violent felonies for purposes of section 667.5 subdivision (c).) Defendant contends,
therefore, that he is not subject to section 2399.1’s limitation of conduct credits to 15
percent. Defendant is correct, and the Attorney General properly concedes this point.
(People v. Holford (2012) 203 Cal.App.4th 155, 159, fn. 2; People v. Philpot (2004) 122
Cal.App.4th 893, 908.)
       We have already concluded that defendant was not entitled to the one-for-one
credits provided by the October 2011 amendment to section 4019. Defendant’s conduct
credits, therefore, must be calculated according to the version of section 4019 in effect at
the time he committed his crimes. The parties agree that under this version of the statute,
defendant was entitled to 456 days of conduct credits. We shall order the trial court to
award credits accordingly.
   B. Cruel and Unusual Punishment
       Defendant was 59 years old at the time he was sentenced to a term of 25 years to
life under the Three Strikes law. He contends that the amount of time he will spend in
prison before being eligible for parole exceeds his remaining life expectancy and that he
therefore has been effectively sentenced to life in prison without the possibility of parole.
This sentence for purse snatching, he argues, violates the Eighth Amendment to the
federal Constitution (prohibiting infliction of “cruel and unusual punishments”) and
article I, section 17 of the California Constitution (“Cruel or unusual punishment may not
be inflicted . . .”). “A sentence violates the state prohibition against cruel and unusual
punishment [citation] if ‘ “it is so disproportionate to the crime for which it is inflicted
that it shocks the conscience.” ’ [Citations.] [¶] A sentence violates the federal


                                              10
Constitution if it is ‘grossly disproportionate’ to the severity of the crime.” (People v.
Russell (2010) 187 Cal.App.4th 981, 993.)4
       A number of cases have recently examined similar contentions, and they do not
support defendant’s contention. A recent opinion of our Supreme Court, In re Coley
(2012) 55 Cal.4th 524 (Coley), provided an extensive review of the relevant
jurisprudence from both federal and state courts. (Id. at pp. 537–551.) The defendant in
Coley was convicted of the felony of failing to update his sex offender registration within
five days of his birthday. (§ 290, former subd. (a)(1)(D), now § 290.012.) There was
also evidence that he had failed to contact his parole office when he was released from
prison, and that the Department of Justice had no record that he had ever registered as a
sex offender. (Coley, supra, 55 Cal.4th at pp. 532–533.)
       The court in Coley explained that after the Three Strikes law was enacted, the
Untied States Supreme Court addressed a cruel and unusual punishment challenge to a
sentence of 25 years to life for a defendant whose triggering offense was the nonviolent
theft of three golf clubs. (Coley, supra, 55 Cal.4th at p. 529, citing Ewing v. California
(2003) 538 U.S. 11 (Ewing).) The court explained: “In Ewing, the high court concluded,
in a five-to-four decision, that, in light of the antirecidivist purpose of the Three Strikes
law and the defendant’s criminal history, the sentence imposed upon the defendant in that
case was not unconstitutional. The lead opinion in Ewing (authored by Justice
O’Connor), however, did not eliminate the possibility that some triggering offense,
although designated a felony under California law, might be so minor and unrelated to
the goal of deterring recidivism that a 25-year-to-life sentence would be ‘grossly
disproportionate’ and constitute cruel and unusual punishment under the Eighth
Amendment, even when imposed upon a defendant with a serious criminal record.”
(Coley, supra, 55 Cal.4th at p. 529.) This possibility reflected the rule that “ ‘[e]mbodied
in the Constitution’s ban on cruel and unusual punishments is the “precept of justice that

       4
        Although defendant technically forfeited this issue by failing to raise it below,
we shall address it in the interest of judicial economy. (People v. Russell, supra, 187
Cal.App.4th at p. 993.)


                                              11
punishment for crime should be graduated and proportioned to [the] offense.”
[Citation.]’ ” (Id. at p. 538, citing Graham v. Florida (2010) 560 U.S. 48, 59 (Graham),
Solem v. Helm (1983) 463 U.S. 277, 284–292, Harmelin v. Michigan (1991) 501 U.S.
957, 996-1001, 997, 1009-1021, 1027 (Harmelin), and Ewing, supra, 538 U.S. at pp. 20–
24, 32–35.)
       The United States Supreme Court, however, has made clear that “[t]he gross
disproportionality principle reserves a constitutional violation for only the extraordinary
case.” (Lockyer v. Andrade (2003) 538 U.S. 63, 77 (Lockyer).) Thus, the court in
Lockyer concluded a Three Strikes sentence of two consecutive prison terms of 25 years
to life for a defendant who had stolen approximately $150 worth of videotapes from two
different stores did not offend the Eighth Amendment. (Id. at pp. 66, 77.) In Ewing, the
court similarly upheld a Three Strikes sentence of 25 years to life for a defendant who
had stolen three golf clubs. (Ewing, supra, 538 U.S. 11, 17–18, 30–31.) In Harmelin, the
court upheld a mandatory term of life in prison without possibility of parole for
possessing 672 grams of cocaine against an Eighth Amendment challenge. (Harmelin,
supra, 501 U.S. 957, 961, 996.)
       California courts have grappled with this issue in connection with defendants
sentenced to Three Strikes terms for violating sex offender registration requirements.
The defendant in People v. Carmony (2005) 127 Cal.App.4th 1066, 1073 (Carmony II)
had been convicted of a sex offense that triggered the lifelong requirement that he register
as a sex offender. (Former § 290, subds. (a), (b), & (e).) Upon his eventual release from
prison, he registered as a sex offender, and registered again a week later when he moved
to a new residence. However, one month later, he failed to comply with the requirement
that he register again within five working days of his birthday. (Carmony II, 127
Cal.App.4th at p. 1073.) The following month, he was arrested at his registered address
for failing to comply with the annual registration requirement. (Ibid.) He was convicted
of violating the sex offender registration requirement, admitted three prior conviction
allegations under the Three Strikes law and one prior prison term, and was sentenced to a
term of 26 years to life. (Id. at p. 1074.) The Court of Appeal noted that only “a rare


                                             12
case . . . violates the prohibition against cruel and/or unusual punishment,” but concluded
this sentence for failing to provide duplicate registration fell within that class of rare
cases. (Id. at pp. 1072–1073.) In doing so, it found that the offense “was an entirely
passive, harmless, and technical violation of the registration law.” (Id. at p. 1077.)
       The court in People v. Nichols (2009) 176 Cal.App.4th 428 distinguished
Carmony II. Unlike the defendant in Carmony II, whose triggering offense was the
violation of the requirement that he update a (recent and still accurate) registration after
his birthday, the defendant in Nichols violated the requirement that he register after he
moved out of the city in which he had been registered. (Former § 290, subd. (f)(1);
Nichols, supra, 176 Cal.App.4th at pp. 432–433 & fn. 2.) The Court of Appeal
concluded an indeterminate life sentence for this crime did not constitute cruel and
unusual punishment, stating, “Unlike the failure in Carmony II, defendant’s failure to
register thwarted the fundamental purpose of the registration law, thereby leaving the
public at risk.” (Nichols, 176 Cal.App.4th at p. 437; see also People v. Meeks (2004) 123
Cal.App.4th 695, 700–701, 708–710 [no Eighth Amendment violation where sex
offender moved three times and lived for period of time on the streets without ever
registering new address or transient status].) Our Supreme Court in Coley likewise
distinguished Carmony II. The trial court in Coley had found that the defendant
deliberately failed to register as a sex offender at all after his release from prison; in those
circumstances, our high court concluded, a third strike sentence of 25 years to life for
violating the registration requirement did not offend the Eighth Amendment. (Coley,
supra, 55 Cal.4th at pp. 561–562.)
       These authorities lead us to reject defendant’s contention that a sentence of 25
years to life for his Third Strike offense violates the constitutional prohibitions of cruel
and/or unusual punishment. The Three Strikes law has been consistently upheld against
constitutional challenges, and similar terms for nonviolent crimes—such as stealing items
from stores—have been found to be permissible. (See Ewing, supra, 538 U.S at pp. 17–
18, 30–31 [golf clubs] and Lockyer, supra, 538 U.S. at pp. 66, 77 [videotapes].)
Defendant’s action in seizing a wallet directly from an elderly victim’s hand was at least


                                              13
as serious as the crimes in these cases. In no way can it be characterized as “an entirely
passive, harmless, and technical violation” of the law. (See Carmony II, supra, 127
Cal.App.4th at p. 1077.) As the federal high court has explained, the gross
disproportionality principle applies in “only the extraordinary case.” (Lockyer, supra,
538 U.S. at p. 77.) This is not such a case. Nor does the sentence in these circumstances
“ ‘shock[] the conscience’ and offend[] fundamental notions of human dignity,
considering the offender’s history and the seriousness of his offenses.” (People v. Haller
(2009) 174 Cal.App.4th 1080, 1092 [applying state constitutional standard].)
       We are not persuaded otherwise by defendant’s contention that because his
sentence exceeds his remaining life expectancy, the sentence is de facto one of life
without parole (LWOP) and therefore unconstitutional. The federal high court has
cautioned against such an analysis, stating that an argument that a sentence of 50 years to
life is effectively life without parole “misses the point. . . . [This] position would treat a
sentence of life without parole for the 77-year-old person convicted of murder as
equivalent to a sentence of life with the possibility of parole in 10 years for the same
person convicted of the same crime. Two different sentences do not become materially
indistinguishable based solely upon the age of the persons sentenced.” (Lockyer, supra,
538 U.S. at pp. 74–75, fn. 1, italics added; see also Harmelin, supra, 501 U.S. at p. 996
[no requirement of individualized sentencing in non-capital cases even where term of
imprisonment exceeds life expectancy of older defendant].) Defendant’s reliance on
People v. Mendez (2010) 188 Cal.App.4th 47, 63, is unavailing. The defendant in
Mendez was 16 years old at the time of the crime; under his sentence, he would not be
eligible for parole until he was older than 88 years old, past his life expectancy. The
court agreed that “[this] sentence and an LWOP sentence are ‘materially
indistinguishable,’ ” and concluded the sentence was grossly disproportionate to the
defendant’s crime. (Id. at pp. 50, 63–68.) Mendez, however, was not a Three Strikes
case, and the defendant was a juvenile at the time of the crime, a status that raises special
constitutional considerations. (Mendez, supra, 188 Cal.App.4th at pp. 63–64; see also
People v. Caballero (2012) 55 Cal.4th 262, 268 [sentencing juvenile nonhomicide


                                               14
offender to sentence with parole eligibility dates outside natural life expectancy
constitutes cruel and unusual punishment]; Graham, supra, 560 U.S. 48, 73 [sentence of
LWOP “improperly denies the juvenile offender a chance to demonstrate growth and
maturity”].) Defendant here is well into adulthood, and received his sentence based on
his long criminal history under the Three Strikes law. His age does not make the
sentence unconstitutional under either the federal or the state constitution.
   C. Double Jeopardy
       Defendant contends his sentence violates the Fifth Amendment prohibition against
double jeopardy. According to defendant, by punishing his recidivism, his enhanced
sentence effectively punishes him again for crimes of which he was convicted in the past.
       As defendant acknowledges, however, the United States Supreme Court has
rejected his view. The high court has stated: “The Double Jeopardy Clause of the Fifth
Amendment, applicable to the States through the Fourteenth Amendment, provides:
‘[N]or shall any person be subject for the same offence to be twice put in jeopardy of life
or limb.’ . . . [Citation.] Historically, we have found double jeopardy protections
inapplicable to sentencing proceedings [citation] because the determinations at issue do
not place a defendant in jeopardy for an ‘offense,’ see, e.g., Nichols v. United States, 511
U.S. 738, 747 (1994) (noting that repeat-offender laws ‘ “penaliz[e] only the last offense
committed by the defendant” ’). Nor have sentence enhancements been construed as
additional punishment for the previous offense; rather, they act to increase a sentence
‘because of the manner in which [the defendant] committed the crime of conviction.
[Citations.] An enhanced sentence imposed on a persistent offender thus ‘is not to be
viewed as either a new jeopardy or additional penalty for the earlier crimes’ but as ‘a
stiffened penalty for the latest crime, which is considered to be an aggravated offense
because a repetitive one.’ Gryger v. Burke, 334 U.S. 728, 732 (1948); cf. Moore v.
Missouri, 159 U.S. 673, 678 (1895) (‘The State may undoubtedly provide that persons
who have been before convicted of crime may suffer severer punishment for subsequent
offences than for a first offence’).” (Monge v. California (1998) 524 U.S. 721, 727–728.)
As the court stated elsewhere, “Enhancement statutes, whether in the nature of criminal


                                             15
history provisions . . . or recidivist statutes that are commonplace in state criminal laws,
do not change the penalty imposed for the earlier conviction. . . . ‘[T]his court
consistently has sustained repeat-offender laws as penalizing only the last offense
committed by the defendant. [Citations.]” (Nichols v. United States, supra, 511 U.S. at
p. 747.)
       In light of these consistent pronouncements by the United States Supreme Court
on a matter of constitutional law, we reject defendant’s contention that his sentence
exposes him to double jeopardy.
   D. Trial Court’s Refusal to Dismiss Prior Strikes
       Defendant contends the trial court abused its discretion in refusing to dismiss some
or all of his prior strikes. As we have explained, the jury found defendant had been
convicted of, and served prison terms for, seven previous felonies. Five of these prior
convictions were strikes: robberies in 1976, 1979 (§ 211), and 1991 (§ 212.5, subd. (b)),
and two convictions for lewd and lascivious acts with a minor under the age of 14 by
force or fear in 1999 (§ 288, subd. (b)(1)). The remaining convictions were for
possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)) and
transportation or sale of a controlled substance (Health & Saf. Code, § 11352, subd. (a)),
in 1986 and 1989, respectively.
       Defendant asked the trial court to dismiss some or all of his prior strikes pursuant
to section 1385, which provides in pertinent part: “(a) The judge or magistrate may, . . .
in furtherance of justice, order an action to be dismissed.” Our Supreme Court held in
People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 504, 529–530 (Romero), that a
trial court has discretion to strike prior felony conviction allegations in cases arising
under the Three Strikes law. In doing so, the court must consider the “ ‘defendant’s
background,’ ‘the nature of his present offenses,’ and other ‘individualized
considerations.’ ” (Id. at p. 531.) Our high court later expounded on this rule, stating that
in ruling whether to strike a prior serious and/or violent felony conviction allegation, or
in reviewing such a ruling, the court must “consider whether, in light of the nature and
circumstances of his present felonies and prior serious and/or violent felony convictions,


                                              16
and the particulars of his background, character, and prospects, the defendant may be
deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as
though he had not previously been convicted of one or more serious and/or violent
felonies.” (People v. Williams (1998) 17 Cal.4th 148, 161.) In accordance with these
principles, our Supreme Court found the trial court had not abused its discretion in
striking a prior conviction allegation where the defendant was already receiving a lengthy
sentence, his prior convictions all arose from a single period of aberrant behavior for
which he served a single prison term, he cooperated with police, his crimes were related
to drug addiction, and his criminal history did not include any actual violence. (People v.
Garcia (1999) 20 Cal.4th 490, 503 (Garcia).) As explained in People v. Strong (2001)
87 Cal.App.4th 328, 338, 340 (Strong), the Three Strikes law was devised for
“revolving-door career criminal[s],” and “longer sentences for career criminals who
commit at least one serious or violent felony certainly goes to the heart of the statute’s
purpose—or spirit.”
       In refusing to dismiss defendant’s prior convictions, the trial court explained that it
had considered the factors of whether defendant’s prior convictions arose from a single
period of aberrant behavior, whether he cooperated with police, whether his crimes were
related to drug addiction, and whether his criminal history included violence (see Garcia,
supra, 20 Cal.4th at p. 503), as well as the factors discussed in Romero and Strong. The
court noted that defendant had a history of preying on vulnerable victims: the child
victim of his sexual offenses was only eight years old, the victims of his prior robberies
were elderly, and the prior convictions involved violence. Defendant did not cooperate
with the police in connection with his present offense. His criminal record did not
involve a single period of aberrant behavior, but rather a “long and continuous criminal
career.”
       We can discern no abuse of the trial court’s discretion. Defendant’s history does
not show merely a single instance of aberrant or youthful behavior; rather it reveals a
persistent pattern of criminal activity throughout defendant’s adult life, punctuated by
multiple prison terms. His current offense, while it did not involve physical violence


                                             17
against the elderly victim, cannot be described as a minor or technical violation of the
law. Defendant argues that his age takes him outside the spirit of the Three Strikes law.
But, as the court in Strong explained, “middle age, considered alone, cannot take a
defendant outside the spirit of the law; otherwise the very factor that takes a defendant
within the spirit of the law—a lengthy criminal career with at least one serious or violent
felony—would have the inevitable consequence—age—that would purportedly take him
outside it.” (Strong, supra, 87 Cal.App.4th at p. 332.) Similarly here, the trial court
could reasonably conclude that defendant’s lengthy criminal history, spanning more than
three decades, does not take him outside the spirit of the Three Strikes law.
   E. Restitution Fines
       Defendant contends the trial court erred in setting the restitution fund fine.
(§ 1202.4, subd. (b)(1).) Section 1202.4, subdivision (b) requires a court to impose a
restitution fine unless it finds compelling reasons for not doing so. The version of
subdivision (b) in effect at the time defendant committed his crimes went on to provide in
pertinent part: “(1) The restitution fine shall be set at the discretion of the court and
commensurate with the seriousness of the offense, but shall not be less than two hundred
dollars ($200), and not more than ten thousand dollars ($10,000), if the person is
convicted of a felony . . . [¶] (2) In setting a felony restitution fine, the court may
determine the amount of the fine as the product of two hundred dollars ($200) multiplied
by the number of years of imprisonment the defendant is ordered to serve, multiplied by
the number of felony counts of which the defendant is convicted.” In 2012, shortly
before defendant was sentenced, section 1202.4 was amended to increase the minimum
restitution fine to $240 dollars, and to provide that the court could set the fine by
multiplying “the minimum fine pursuant to paragraph (1)” multiplied by the number of
years of imprisonment and the number of felonies. (Stats. 2011, ch. 358, § 1.) The
parties agree that because the imposition of restitution fines constitutes punishment, it is
subject to the ex post facto clause of the United States Constitution, and that the court
must therefore apply the version in effect at the time of the crimes. (People v. Souza
(2012) 54 Cal.4th 90, 143.)


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       Section 1204.45, in turn, requires the court, at the time it imposes a restitution fine
pursuant to 1202.4, subdivision (b), to “assess an additional parole revocation restitution
fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4” if
the defendant’s sentence includes a period of parole. This fine is suspended unless the
person violates parole. (Former § 1202.45, stats. 2007, ch. 302; see also § 1202.45, subd.
(c), italics added.)
       In imposing the restitution fines under sections 1202.4 and 1202.45, the trial court
stated: “The restitution fine for Count 1 is dictated by Penal Code, Section 1202.4(b)(10)
[sic], which states it is the number of years of imprisonment multiplied by $240 for a
total of $6,000. [¶] The Court further imposes, pursuant to Penal Code, Section 1202.45,
an additional restitution fine known as a parole revocation fine in the same amount of
$200 for each year of imprisonment for a total of $5,000. [¶] Payment of that fine is
suspended and will remain suspended unless the defendant’s parole at some future point
is revoked.”
       Defendant argues the trial court erroneously applied the later version of section
1202.4, that the court mechanically applied a formula (the minimum fine times 25, the
number of years of his imprisonment) rather than exercising its discretion to set the
amount of the fine, and that the court erred in assessing different amounts under sections
1202.4 and 1202.45.
       The Attorney General first responds that defendant forfeited his challenge to the
restitution fine by failing to object below. (See People v. Scott (1994) 9 Cal.4th 331, 353
[waiver doctrine applies to challenges to trial court’s failure to properly make or
articulate discretionary sentencing choices].) To the extent defendant’s challenge is to
the trial court’s decision to multiply the base fine by the number of years of
imprisonment, we agree with the Attorney General that the challenge is to the court’s
failure to articulate its sentencing choices, and the issue is therefore waived.
       We reach a different conclusion as to defendant’s challenge to the disparity
between the two fines and the appropriateness of using $240 as a base fine under section
1202.4. The trial court’s words leave no doubt that in setting the restitution fine it was


                                              19
applying the newer version of section 1202.4—which has $240 as the base fee—rather
than the version in effect at the time of defendant’s crimes—which had a $200 base fee.
Inexplicably, however, the court appears to have used the amount in the earlier version of
section 1202.4 in setting the amount of the parole revocation fine, leading to fines of two
different amounts, contrary to the clear language of section 1202.45. Thus, the trial court
ordered a restitution fine of $6,000 ($240 times 25 years of incarceration) and a parole
revocation fine of $5,000 ($200 times 25 years of incarceration). The propriety of the
trial court’s actions present a legal issue, which we will review even in the absence of an
objection below. (See People v. Smith (2001) 24 Cal.4th 849, 853 [error in imposing
parole revocation fine (§ 1202.45) an amount different from restitution fine (§ 1202.4)
reviewable on appeal because presents pure question of law and is correctable without
remanding for further findings]; People v. Martinez (2002) 95 Cal.App.4th 581, 587
[error in setting different amounts for restitution fine and parole revocation fine reviewed
in absence of objection below].)
       We are satisfied that the trial court intended to impose a restitution fine of the
minimum statutory amount times the number of years of defendant’s sentence. Under the
version of section 1202.4, subdivision (b), in effect at the time of defendant’s crimes, the
minimum statutory amount was $200, which, when multiplied by the 25 years of
defendant’s term, would lead to a total restitution fine of $5,000—the same amount as the
parole revocation fine the trial court assessed. We shall therefore order the restitution
fine reduced to $5,000.
                          III.                          DISPOSITION
       The judgment is modified to reflect (1) that defendant has 456 days of presentence
conduct credits and (2) that both the restitution fine under section 1202.4, subdivision (b)
and the parole revocation fine under section 1202.45 are set at $5,000. The trial court is
directed to amend the abstract of judgment accordingly and forward an amended abstract
to the California Department of Corrections and Rehabilitation. In all other respects, the
judgment is affirmed.



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                                 _________________________
                                 Rivera, J.


We concur:


_________________________
Reardon, Acting P.J.


_________________________
Humes, J.




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