Filed 12/13/13 P. v. Trice CA4/2


                         NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                  DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E056369

v.                                                                       (Super.Ct.No. RIF1100762)

DARREN LEE TRICE,                                                        OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. Michael B. Donner,

Judge. Affirmed as modified.

         Marcia R. Clark, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, and Melissa Mandel, Charles C.

Ragland and Marissa A. Bejarano, Deputy Attorneys General, for Plaintiff and

Respondent.




                                                             1
       On November 10, 2011, a jury convicted defendant Darren Lee Trice of

transporting a controlled substance, namely cocaine base (Health & Saf. Code, § 11352,

subd. (a); count 1), possessing a controlled substance, namely cocaine base (Health &

Saf. Code, § 11350, subd. (a); count 2), being under the influence of a controlled

substance (Health & Saf. Code § 11550, subd. (a); count 4), and possessing drug

paraphernalia (Health & Saf. Code § 11364; count 5). In a bifurcated trial, the court

found true the special allegations that defendant suffered six prison priors and five prior

strike convictions. (Pen. Code, §§ 667, subds. (c) & (e)(2)(a), 667.5, subd. (b), and

1170.12, subd. (c)(2)(A).) On May 25, 2012, the court sentenced defendant to six years

plus 25 years to life as follows: 25 years to life for counts 1 and 2, one year for count 4,

and six months for count 5. Counts 2, 4 and 5 were ordered to run concurrent with count

one. With respect to the Penal Code section 667.5, subdivision (b) prior conviction

allegations, the trial court imposed a consecutive sentence of six years. Defendant

appeals, contending the trial court erred in denying both his motion to suppress evidence

and his request to strike prior convictions. He further raises challenges to his sentence.

As discussed below, we affirm the conviction but modify the sentence to conform with

Penal Code section 654.

                                         I. FACTS

       On November 9, 2010, at approximately 4:00 a.m., Detective Chad Chinchilla of

the Riverside Police Department and his partner, Officer Silvio Macias, stopped

defendant for a traffic violation. After speaking to defendant for about one minute,

Detective Chinchilla, who was trained to recognize the symptoms of drug and alcohol

                                              2
use, formed the opinion that defendant’s speech pattern, facial expressions, and eye

movement indicated he was under the influence of a controlled substance. The officers

placed defendant under arrest.

       Following the arrest, Officer Macias performed a search of defendant’s

automobile and discovered a “crack” pipe by the emergency brake. Detective Chinchilla

noticed a white substance inside the pipe and extracted it for testing. The extracted

substances weighed about 0.2 grams and were established to be a “usable quantity” of

cocaine base. Defendant’s blood was also taken for testing. The blood test established

the presence of cocaine in defendant’s body. A toxicologist who performed the blood

test also stated that the symptoms Detective Chinchilla testified about were consistent

with someone who was under the influence of cocaine.

                              II. MOTION TO SUPPRESS

       Defendant challenges the denial of his motion to suppress, arguing that the officers

did not have reasonable suspicion to stop his car.

       A. Further Background Information

       On November 9, 2010, defendant was traveling in his car northbound on

Olivewood, approaching Fourteenth Street to turn right. A patrol car that had been

traveling southbound on Olivewood made a U-turn to follow defendant because it was

approximately 4:00 a.m. Detective Chinchilla and his partner were inside the patrol car

driving a few car lengths behind defendant, traveling “from 20 to about 25 or 30 miles an

hour.” Defendant was traveling in the far right lane, approaching Mulberry. Detective

Chinchilla noticed that defendant’s center brake light inside the rear window of

                                             3
defendant’s car did not illuminate. Further, defendant turned on his signal as he was

turning onto Mulberry. As a result of these two violations, the detective decided to stop

defendant. Detective Chinchilla conceded that his partner did not need to “slam” on the

brakes, nor did he (Detective Chinchilla) feel himself propelled forward in reaction to a

sudden braking upon defendant’s turn. Nonetheless, the officers cited defendant for

failing to properly signal before turning. (Veh. Code, § 22107.)

       Nellie Trice, defendant’s mother and the registered owner of the car, testified that

she went down to the tow yard and tested the brake lights. She observed that all brake

lights were working. Mrs. Trice also had the woman working at the tow yard come and

witness that the center brake light was operative.

       The trial court conceded there might be “some question” as to whether the

inoperative brake light justified the traffic stop. However, the court found that the turn

signal violation was sufficient to support the detention and, on that ground, denied the

motion to suppress.

       B. Standard of Review

       “‘In ruling on a motion to suppress, the trial court must find the historical facts,

select the rule of law, and apply it to the facts in order to determine whether the law as

applied has been violated. We review the court’s resolution of the factual inquiry under

the deferential substantial-evidence standard. The ruling on whether the applicable law

applies to the facts is a mixed question of law and fact that is subject to independent

review.’ [Citation.] On appeal we consider the correctness of the trial court’s ruling



                                              4
itself, not the correctness of the trial court’s reasons for reaching its decision.

[Citations.]” (People v. Letner and Tobin (2010) 50 Cal.4th 99, 145, italics omitted.)

       A traffic stop may be “supported by reasonable suspicion of one or more Vehicle

Code violations . . . .” (People v. Saunders (2006) 38 Cal.4th 1129, 1137.)

       C. Analysis

       Here, the police believed they had witnessed two separate violations; however, the

trial court found the turn signal violation was sufficient to support the detention, and on

that ground, denied the motion to suppress. Thus, we focus on the turn signal violation.

       Vehicle Code section 22107 prohibits “mov[ing a vehicle] right or left upon a

roadway until . . . after the giving of an appropriate signal . . . in the event any other

vehicle may be affected by the movement.” (Italics added.) Vehicle Code section 22108

provides, “Any signal of intention to turn right or left shall be given continuously during

the last 100 feet traveled by the vehicle before turning.” “[R]eading [Vehicle Code]

sections 22107 and 22108 together, a motorist must continuously signal during the last

100 feet traveled before turning, but only in the event other motorists may be affected.”

(People v. Carmona (2011) 195 Cal.App.4th 1385, 1394 (Carmona).) Defendant

therefore argues there was insufficient evidence that his right turn affected any other

vehicle. He points out that he “traveled at a speed of no greater than 30 miles per hour,

and in the far right lane, the entire time the police were behind him. That lane was a

protected right turn lane. [He] slowed at the intersection, then signaled as he made the

right turn. This action did not cause the patrol car to slam on the brakes or make any

sudden movement. [¶] In fact, there was no testimony that [his] right turn came as a

                                               5
surprise or that his failure to signal sooner caused the officers to alter their rate of travel

in any way. All of this evidence shows that the turn was made safely and not in a manner

that might have affected a reasonable driver in the car behind—as indeed it did not.”

       “Actual impact upon another motorist is not required; a potential effect is

sufficient to trigger the signal requirement. [Citation.]” (People v. Durant (2012) 205

Cal.App.4th 57, 63.) The vehicle affected may be “a patrol car, irrespective of the lack of

any other traffic. [Citation.]” (People v. Logsdon (2008) 164 Cal.App.4th 741, 744, fn.

omitted (Logsdon); accord, People v. Miranda (1993) 17 Cal.App.4th 917, 930

(Miranda).)

       Relying on Carmona and Logsdon, defendant contends that his turn could not

have affected anyone on the road and thus did not violate the Vehicle Code in question.

He argues that the “gravamen of the holding in Carmona was that a violation of Vehicle

Code section 22108 cannot occur in a void.” In Carmona, the defendant made a right

hand turn without signaling. At the time the officers observed the violation, they were

traveling in the opposite direction, across the street, and no other car was following the

defendant’s car. (Carmona, supra, 195 Cal.App.4th at p. 1388.) The appellate court

ultimately agreed that defendant’s turn was not one requiring a signal because there was

no other vehicle following which might have been affected by the turn. (Id. at p. 1389.)

In Logsdon, the defendant pulled out of a gas station and crossed all but one lane in a

seven lane road. A police officer observed defendant’s movement and entered the lane

behind him, following within 100 feet. While following defendant, the officer watched

him change lanes without signaling. The officer stopped the defendant for making an

                                                6
unsignaled lane change. (Logsdon, supra, 164 Cal.App.4th at p. 743.) The appellate

court concluded that because the officer was behind defendant, the unsignaled lane

change could have affected the officer, even though the officer stated that he was not

actually affected by the lane change. (Id. at pp. 744-746.) The Logsdon court reasoned

that a signal is primarily aimed at vehicles behind the car making the lane change or turn.

(Id. at pp. 744.) A failure to signal before a turn while a car is behind the turning car is

“prima facie unsafe. . . .” (Miranda, supra, 17 Cal.App.4th at p. 930.)

       The facts in Carmona differ from the facts before this court, because in Carmona

the officers were traveling in the opposite direction, across the street, and there were no

cars following the defendant’s car. Rather, the facts are more like those in Logsdon.

Here, Detective Chinchilla’s patrol car was well within 100 feet of defendant’s car and

thus could have been affected by defendant’s improper turn. In sum, the officers had

probable cause to believe that defendant was required to signal but failed to do so in

violation of Vehicle Code section 22107.

       Because we have found the traffic stop based upon a violation of Vehicle Code

section 22107 to have been proper, the trial court did not err in denying defendant’s

motion to suppress.

                           III. MOTION TO STRIKE PRIORS

       Defendant faults the trial court for denying his motion to strike prior strike

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

contends the court “gave undue emphasis to his criminal history and insufficient weight



                                              7
to the de minim[i]s nature of the current offenses and therefore abused its discretion in

denying the motion.”

       A. Standard of Review

       “[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.) Defendant has the burden of demonstrating an abuse of discretion

and, in the absence of such a showing, we presume the trial court acted correctly. (Id. at

pp. 376-377.) Even if we might have ruled differently in the first instance, we will affirm

the trial court’s ruling as long as the record shows the trial court “‘balanced the relevant

facts and reached an impartial decision in conformity with the spirit of the law. . . . .’”

(Id. at p. 378.) An exercise of discretion to strike a prior conviction pursuant to Penal

Code section 1385 requires the trial court to balance the legitimate societal interest in

imposing longer sentences for repeat offenders and the defendant’s constitutional right

against disproportionate punishment. (Romero, supra, 13 Cal.4th at pp. 530-531.) Trial

courts “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 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.) There is a “‘strong presumption’ [citation] that the trial

judge properly exercised his discretion in refusing to strike a prior conviction allegation.”

(In re Large (2007) 41 Cal.4th 538, 551.) The circumstances must be “extraordinary” for

                                               8
a career criminal to be deemed to fall outside the scheme of the Three Strikes law.

(People v. Carmony, supra, at p. 378.)

       B. Further Background Facts

       Defendant (born in April 1963) began a life of crime as a juvenile. On May 12,

1980, he was convicted of robbery. (Pen. Code, § 211.) While on parole, and when he

was an adult, in 1982 defendant was convicted of four felonies: two counts of robbery

(Pen. Code, § 211), one count of attempted robbery (Pen. Code, §§ 664, 221), and one

count of assault with a deadly weapon (Pen. Code, § 245, subd. (a)). These convictions

are considered four strikes pursuant to Penal Code sections 667, subdivisions (c) and

(e)(2)(A), and 1170.12, subdivision (c)(2)(A). He was sentenced to seven years in prison

and was paroled in April 1987. Two months later, he was convicted of misdemeanor

possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)). Two years

later, in June 1989, he was convicted of two counts of misdemeanor trespass in a motor

vehicle (Pen. Code, § 602, subd. (n)).

       On December 30, 1989, in Riverside County; May 23, 1990, in Los Angeles

County; and then again on June 16, 1992, in Los Angeles County, defendant was

convicted of felony possession of a controlled substance (Health & Saf. Code, § 11350,

subd. (a)). On August 30, 1996, defendant was convicted of making criminal threats, a

felony (Pen. Code, § 422). This conviction is considered a strike pursuant to Penal Code

sections 667, subdivisions (c) and (e)(2)(A), and 1170.12, subdivision (c)(2)(A). Two

years later, in July 1998, he was yet again convicted of felony possession of a controlled

substance (Health & Saf. Code, § 11350, subd. (a)). In November 2000 he received a

                                             9
felony conviction for possession of a firearm by a felon (Pen. Code, § 12012, subd.

(a)(1)) for which he was sentenced to six years in prison. He violated his parole five

times.

         As the People note, defendant has been arrested at least 29 times, has 12 criminal

convictions, of which nine are felonies and five are strike offenses, and he has spent more

than 22 years in state prison, not counting local custody.

         C. Analysis

         Defendant summarizes his criminal history as consisting of four strikes in 1982

and one strike in 1996. He notes the worst of his past crimes are the most remote, nearly

30 years old, while the most recent occurred 15 years ago, consisting of making

threatening statements to security officers. Thus, he challenges the denial of his Romero

motion, arguing his “history reveals that his crimes are of decreasing severity—the most

serious being the most remote.”

         When a prior conviction is remote, and the defendant has led a crime-free life

between that prior conviction and the present offense, the trial court may consider

remoteness as a factor favoring dismissal of a strike. (People v. Humphrey (1997) 58

Cal.App.4th 809, 813.) However, the remoteness of a prior conviction does not alone

require dismissal: “Where, as here, the defendant has led a continuous life of crime after

the prior, there has been no ‘washing out’ and there is simply nothing mitigating about a

20-year-old prior. [Citations.]” (Ibid.; see also People v. Gaston (1999) 74 Cal.App.4th

310, 321 [Appellate court reversed the trial court’s dismissal of a strike that was 17 years

old but was followed by recidivism].) As the People point out, while defendant’s last

                                              10
strike conviction was in 1996, he was convicted of two more felonies afterwards, not

including his current convictions. Specifically, in 1998 he was convicted of possessing a

controlled substance, and then in 2000 he was convicted of being a felon in possession of

a firearm. Since his last prior, he has violated parole six times. While his crimes may be

decreasing in severity, he has by no means experienced a washing out period.

       The trial court’s remarks at sentencing make clear that it gave due consideration to

defendant’s criminal history.1 The court observed the lack of evidence that defendant

would live a lawful life “because his history from the age of 17 years old up to the

present time reflects that incarceration doesn’t change the behavior, being given breaks

don’t change the behavior. If he did, as his mother stated, complete programs while in

state prison on—with respect to drugs, that doesn’t work. It was futile. [¶] And so while

at home he may be a wonderful human being . . . [but] when he’s out in society . . . he

presents himself as a danger to society, a career criminal, who is absolutely within the

spirit of the three strikes law.” Recognizing that defendant needed rehabilitation, the

court observed that to use his need for rehabilitation at this late stage in his life as the

reason for not imposing the Three Strikes law is “something that is just not compelling.”

According to the trial court, defendant has never been free from a life of crime “since he

was 17 years old. And even when given chances, repeated chances, year after year after

year, he violates, breaks his promise, and goes out and commits another crime. And there

is no change in terms of the public perception of his criminal activity and his history. It’s

       1  “I have listened to everything that was said . . . [¶] . . . I can understand where
he’s a good man. . . . But there is another side which I took great pains to go through so
that [everyone] could hear what the other side of [defendant] is.”
                                               11
in black and white. That’s what he’s been convicted of. It’s nothing that’s made up. [¶]

And so I’m going to stick with my tentative ruling . . . and deny the Romero motion. I

think that this defendant falls exactly within the scheme of the three strikes law.”

       Considering defendant’s criminal record, we agree with the trial court’s comments

and conclude that it did not abuse its discretion in denying his Romero motion.

                            IV. PENAL CODE SECTION 654

       Defendant was convicted of transporting a controlled substance (count 1),

possessing a controlled substance (count 2), and possessing paraphernalia (count 5) based

on the cocaine in a glass pipe found in his vehicle. The trial court imposed a sentence of

25 years to life as to count 1, and concurrent sentences for counts 2 and 5. Defendant

contends, and the People concede, that defendant’s sentence on counts 2 and 5 should

have been stayed pursuant to Penal Code section 654.

       Penal Code section 654, subdivision (a) provides, in pertinent part: “An act or

omission that is punishable in different ways by different provisions of law shall be

punished under the provision that provides for the longest potential term of

imprisonment, but in no case shall the act or omission be punished under more than one

provision.” Section 654 precludes multiple punishments not only for a single act, but for

an indivisible course of conduct. (People v. Hester (2000) 22 Cal.4th 290, 294; see also

People v. Centers (1999) 73 Cal.App.4th 84, 98 [Fourth Dist., Div. Two].) “The purpose

of this statute is to prevent multiple punishments for a single act or omission, even though

that act or omission violates more than one statute and thus constitutes more than one

crime.” (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312.)

                                             12
       In this case, we agree with the parties that under Penal Code section 654, the trial

court erred in imposing concurrent sentences for counts 2 and 5. The offenses of

transporting a controlled substance, possessing a controlled substance and possessing

paraphernalia were all based on defendant’s possession and transportation of cocaine

base and a pipe, which were not found in his possession, but rather hidden in his car.

However, the controlled substance in question was 0.2 grams of cocaine base that was

packed in a pipe used to smoke the cocaine base. In committing these three offenses,

defendant had one objective, to move the substance and paraphernalia from one place to

another for personal use. While under certain circumstances a person may have different

intents and objectives for possessing drugs and paraphernalia, here the drugs were found

inside the pipe and both were possessed for personal use. Thus, his conduct arose from

an individual course of conduct, as he had one criminal objective.

       Under Penal Code section 654, defendant could be punished for one conviction,

but not all three. (See In re Adams (1975) 14 Cal.3d 629, 633 [applying Penal Code

section 654 to Health and Safety Code offenses].) Therefore, the concurrent terms on

counts 2 and 5 should be stayed under Penal Code section 654.

                     V. THREE STRIKES REFORM ACT OF 2012

       In supplemental briefing, defendant requests that this court remand his case to the

trial court for mandatory resentencing under the recently enacted Proposition 36, the

Three Strikes Reform Act of 2012, Section 10 (Prop. 36, as approved by voter Ballot

Pamp., Gen. Elec. (Nov. 6, 2012)) (hereafter the Reform Act or the act). The Reform Act

became effective on November 7, 2012, two years after defendant’s arrest, one year after

                                             13
his conviction and five and one-half months after sentencing. (Pen. Code, §§ 667, subd.

(e)(2)(C), 1170.12, subd. (c)(2)(C), 1170.126.)2 Relying on In re Estrada (1965) 63

Cal.2d 740 (Estrada), defendant contends he is entitled to mandatory resentencing

because his convictions are not yet final and the act provides for reduced punishment.

The People oppose the request, arguing that the act allows persons like defendant, who

are presently serving an indeterminate sentence but whose sentence under the act would

not have been an indeterminate sentence, to file a petition for recall in the trial court for

discretionary resentencing. We conclude that defendant is not entitled to mandatory

resentencing under the act, but agree with the People that defendant is free to file a

petition for recall in the trial court to request discretionary resentencing

       A. Proposition 36

       Under the Three Strikes law as it existed before the passage of the Reform Act, a

defendant with two or more strike priors who is convicted of any new felony would

receive a sentence of 25 years to life. (Former § 667, subd. (e)(2)(A).) As amended,

section 667 provides that a defendant who has two or more strike priors is to be sentenced

pursuant to paragraph 1 of section 667, subdivision (e)—i.e., as though the defendant had

only one strike prior—if the current offense is not a serious or violent felony as defined in




       2All further statutory references are to the Penal Code unless otherwise indicated.
For convenience, we will refer solely to section 667, subdivision (e) in discussing the
Reform Act, omitting reference to the substantially identical section 1170.12, subdivision
(c). However, the analysis applies to both sections 667 and 1170.12.

                                              14
section 667.5, subdivision (c) or section 1192.7, subdivision (c), unless certain

disqualifying factors are pleaded and proven.3 (§§ 667, subds. (d)(1), (e)(2)(C).)

       The Reform Act also provides a procedure that allows a person who is “presently

serving” an indeterminate life sentence imposed pursuant to the Three Strikes law to

petition to have his or her sentence recalled and to be sentenced as a second strike


       3 Section 667, subd. (e)(2)(C) provides that second strike sentencing does not apply if
the prosecution pleads and proves any of the following:
       “(i) The current offense is a controlled substance charge, in which an allegation under
Section 11370.4 or 11379.8 of the Health and Safety Code was admitted or found true.
       “(ii) The current offense is a felony sex offense, defined in subdivision (d) of Section
261.5 or Section 262, or any felony offense that results in mandatory registration as a sex
offender pursuant to subdivision (c) of Section 290 except for violations of Sections 266 and
285, paragraph (1) of subdivision (b) and subdivision (e) of Section 286, paragraph (1) of
subdivision (b) and subdivision (e) of Section 288a, Section 311.11, and Section 314.
       “(iii) During the commission of the current offense, the defendant used a firearm, was
armed with a firearm or deadly weapon, or intended to cause great bodily injury to another
person.
       “(iv) The defendant suffered a prior serious and/or violent felony conviction, as
defined in subdivision (d) of this section, for any of the following felonies:
       “(I) A ‘sexually violent offense’ as defined in subdivision (b) of Section 6600 of the
Welfare and Institutions Code.
       “(II) Oral copulation with a child who is under 14 years of age, and who is more than
10 years younger than he or she as defined by Section 288a, sodomy with another person
who is under 14 years of age and more than 10 years younger than he or she as defined by
Section 286, or sexual penetration with another person who is under 14 years of age, and
who is more than 10 years younger than he or she, as defined by Section 289.
       “(III) A lewd or lascivious act involving a child under 14 years of age, in violation of
Section 288.
       “(IV) Any homicide offense, including any attempted homicide offense, defined in
Sections 187 to 191.5, inclusive.
       “(V) Solicitation to commit murder as defined in Section 653f.
       “(VI) Assault with a machine gun on a peace officer or firefighter, as defined in
paragraph (3) of subdivision (d) of Section 245.
       “(VII) Possession of a weapon of mass destruction, as defined in paragraph (1) of
subdivision (a) of Section 11418.
       “(VIII) Any serious and/or violent felony offense punishable in California by life
imprisonment or death.”
                                             15
offender, if the current offense is not a serious or violent felony and the person is not

otherwise disqualified. The trial court may deny the petition even if those criteria are

met, if the court determines that resentencing would pose an unreasonable risk of danger

to public safety. (§ 1170.126, subds. (a)-(g).) Accordingly, under section 1170.126,

resentencing is discretionary even if the defendant meets the objective criteria

(§ 1170.126, subds. (f), (g)), while sentencing under section 667, subdivision (e)(2)(C) is

mandatory, if the defendant meets the objective criteria.

       B. Defendant Is Not Entitled to Mandatory Resentencing

       As stated above, defendant was five and one-half months into serving his prison

sentence when the Reform Act went into effect. Thus, at that time he was “presently

serving” his life sentence. In People v. Lester (2013) 220 Cal.App.4th 291 (Lester)

[Fourth Dist., Div. Two], this court held that, under the rule set forth in Estrada, the

intent of the voters in passing Proposition 36 was to reserve the mandatory reduction in

sentence to future felony offenders, but to allow existing inmates whose most recent

offense was not a serious or violent felony to apply for discretionary resentencing. This

is because the voter information guide for the initiative “could not have been more clear

in its distinction between the two and nowhere is there a reference to the possibility that

some existing inmates would automatically receive a twice-the-base-term sentence

merely because their judgments are not yet final.” (Lester at p. 302) Further, we

concluded: “Given the information supplied to the voters, we view Penal Code section

1170.126 as the functional equivalent of a saving clause. ‘The rule in Estrada [that a

statute amended to lessen the punishment for an offense is presumed intended by the

                                              16
Legislature to apply to all judgments not yet final as of the statute’s effective date, unless

the Legislature clearly indicates the intent that the amendment apply prospectively

only] . . . is not implicated where the Legislature clearly signals its intent to make an

amendment prospective, by the inclusion of either an express saving clause or its

equivalent . . . .’ [Citation.]” (Lester at p. 303, italics added and omitted.)

       We also note that in People v. Yearwood (2013) 213 Cal.App.4th 161, 172, 175-

176, the first published opinion to consider this question, the Fifth District reached the

same conclusion. Defendant does not benefit from the mandatory provisions of the act.

       C. Conclusion

       We conclude that in passing the Three Strikes Reform Act of 2012, the electorate

intended the mandatory sentencing provision of sections 667, subdivision (e)(2)(C) to

apply prospectively only, rather than to convicted felons who were already serving their

not-yet-final-on-appeal life sentences at the time the Reform Act went into effect.

                    VI. NO CRUEL AND UNUSUAL PUNISHMENT

       Finally, defendant argues the 25-years-to-life portion of his sentence for

transporting a trace amount of cocaine base is cruel and unusual punishment under the

Eighth Amendment to the United States Constitution because it is grossly

disproportionate to the crime committed.

       “The Eighth Amendment, which forbids cruel and unusual punishments, contains

a ‘narrow proportionality principle’ that ‘applies to noncapital sentences.’ [Citations.]”

(Ewing v. California (2003) 538 U.S. 11, 20 (Ewing).) However, successful challenges

to the proportionality of particular sentences “‘outside the context of capital

                                              17
punishment’ ” are “ ‘exceedingly rare.’” [Citation.]” (Id. at p. 21.) When a recidivism

statute comes into play, the test for determining whether a sentence violates the Eighth

Amendment is not simply the gravity of the current or “triggering” offense. Rather, a

proportionality review under the Eighth Amendment must “give full effect to the State’s

choice” of furthering a legitimate “public-safety interest in incapacitating and deterring

recidivist felons.” (Ewing, at p. 29.) As a result, a proportionality review must take into

consideration not only the gravity of the current or “triggering” offense but also the

length and seriousness of the defendant’s criminal history. (Id. at pp. 28-30.)

       In Ewing, the Supreme Court concluded the defendant’s sentence of 25 years to

life under California’s Three Strikes law was not “grossly disproportionate” for a

defendant who shoplifted golf clubs worth about $1,200 because he had a lengthy

criminal history, including three burglaries and a robbery. (Ewing, supra, 538 U.S. at pp.

28-30.) On the record before us, we can discern no legitimate or meaningful basis for

distinguishing the sentence found constitutional in Ewing with the one imposed against

defendant in this case. Defendant’s cocaine base transportation offense and criminal

history of robbery, assault, firearm possession and multiple drug offenses described

above are at least as serious as the theft offense and criminal history at issue in Ewing.

We therefore conclude defendant’s 25-years-to-life sentence is not “grossly

disproportionate” under the Eighth Amendment.

       “The basic test of a cruel or unusual punishment under the California Constitution

is whether it is so disproportionate to the crime as to shock the conscience and offend

fundamental notions of human dignity. [Citations.] The main technique of analysis is to

                                             18
examine the nature of the offense and of the offender. [Citation.] The court must

consider both the nature of the offense in the abstract, and the facts of the crime in the

particular case, including factors such as motive, the way the crime was committed, the

extent of the defendant’s involvement, and the consequences. [Citation.] As to the

offender’s nature, the question is whether the punishment is ‘grossly disproportionate to

the defendant’s individual culpability as shown by such factors as his age, prior

criminality, personal characteristics, and state of mind.’ [Citation.]” (People v.

Szadziewicz (2008) 161 Cal.App.4th 823, 845, citing People v. Dillon (1983) 34 Cal.3d

441, 478 & In re Lynch (1972) 8 Cal.3d 410, 424.) “A defendant has a considerable

burden to overcome when he challenges a penalty as cruel or unusual.” (People v.

Bestelmeyer (1985) 166 Cal.App.3d 520, 529.)

       For the same reasons discussed ante in connection with defendant’s Eighth

Amendment claim, we cannot conclude defendant’s 25-years-to-life sentence is cruel or

unusual under the California Constitution.

                                    VII. DISPOSITION

       The judgment is modified to stay the imposition of sentence on counts 2 and 5

pursuant to Penal Code section 654. The superior court clerk is directed to prepare a new

sentencing minute order to reflect the sentence modification. The superior court clerk is

further directed to amend the abstract of judgment to reflect that counts 2 and 5 are stayed

pursuant to Penal Code section 654. The superior court clerk is further directed to

forward a certified copy of the amended abstract of judgment to the Department of

Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

                                             19
      NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                RAMIREZ
                                                          P. J.


I concur:

MILLER
                   J.




                                20
HOLLENHORST, J., Dissenting and Concurring Opinion.

       I respectfully concur in everything but the discussion of the Three Strikes

Reform Act of 2012, Section 10 (Prop. 36, as approved by voter Ballot Pamp.,

Gen. Elec. (Nov. 6, 2012)) (hereafter the Reform Act), which became effective on

November 7, 2012. (Pen. Code,1 §§ 667, subd. (e)(2)(C), 1170.12, subd.

(c)(2)(C), 1170.126.) This issue of whether the electorate intended the act solely

to operate prospectively is currently under consideration by the California

Supreme Court. (People v. Lewis (2013) 216 Cal.App.4th 468, review granted

Aug. 14, 2013, S211494 [holding the Reform Act applies retroactively]; People v.

Conley (2013) 215 Cal.App.4th 1482, review granted Aug. 14, 2013, S211275

[holding the Reform Act is not retroactive]; People v. Yearwood (2013) 213

Cal.App.4th 161, 167 [not retroactive]; People v. Lester (2013) 220 Cal.App.4th

291, 304 (conc. & dis. opn. of Hollenhorst, J.) [not retroactive but with dissent];

People v. Contreras (Nov. 18, 2013, G047603) __ Cal.App.4th __ [2013 Cal.App.

Lexis 926] [retroactive]). I affirm my dissent in Lester, agree with the analysis in

Contreras, incorporate both by reference, and for those reasons conclude that in

passing the Reform Act, the electorate intended the mandatory sentencing

provisions of sections 667, subdivision (e)(2)(C) and 1170.12, subdivision

(c)(2)(C) to apply to qualifying defendants whose judgments were not yet final on


       1 All further statutory references are to the Penal Code unless otherwise
indicated.
                                          1
the effective date of the act. Hence, I would vacate defendant’s sentence and

remand the matter to the trial court for resentencing. As such, the discussion of

whether defendant’s punishment is cruel and unusual would be deemed moot.



                                                        HOLLENHORST
                                                                                    J.




                                         2
