IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
December 29, 2010
THE PEOPLE, PLAINTIFF AND RESPONDENT,
KRISTIN LEE HARDY, DEFENDANT AND APPELLANT.
Super.Ct.No. RIF125676 APPEAL from the Superior Court of Riverside County. Richard J. Hanscom, Judge. (Retired judge of the San Diego Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed in part and reversed in part with directions.
The opinion of the court was delivered by: Richli J.
P. v. Hardy CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant's live-in girlfriend called 911; she told the police officer who responded that defendant had choked her with a scarf and with his hands, threatened to kill her, raped her, and forced her to orally copulate him. She had marks on her neck consistent with being choked; she also had a black eye.
Whenever the girlfriend talked to defense counsel, defense investigators, or defendant's mother, however, she maintained that the sex acts had been consensual. On occasion, she also told them that defendant choked her at her request, for erotic purposes, and that she hit defendant first, before he hit her in the eye. Finally, at trial, she affirmatively testified that the sex acts had been consensual; however, she admitted that defendant did choke her and punch her in the eye out of anger.
A jury found defendant guilty of assault by means of force likely to cause great bodily injury (Pen. Code, § 245, subd. (a)(1)) and inflicting corporal injury on a cohabitant (Pen. Code, § 273.5, subd. (a)). However, it found him not guilty of rape (Pen. Code, § 261, subd. (a)(2)), unlawful oral copulation (Pen. Code, § 288a, subd. (c)(2)), and making a criminal threat (Pen. Code, § 422). Two "strike" prior allegations (Pen. Code, §§ 667, subds. (b)(1), 1170.12), one prior serious felony enhancement (Pen. Code, § 667, subd. (a)) and one 1-year prior prison term enhancement (Pen. Code, § 667.5, subd. (b)) were found true. Defendant was sentenced to a total of 25 years to life in prison.
Defendant now contends:
1. The trial court erred by refusing to give a unanimity instruction.
2. The trial court abused its discretion by denying defendant's Romero motion.*fn1
3. The sentence constitutes cruel and unusual punishment in violation of the state and federal Constitutions.
4. The sentence violates the federal double jeopardy clause.
5. The trial court erred by imposing the prior serious felony enhancement.
The People concede that the prior serious felony enhancement should not have been imposed. Accordingly, we will remand the matter to the trial court with directions to consider whether to impose the one-year prior prison term enhancement, which it struck because it arose out of the same conviction as the prior serious felony enhancement. Otherwise, we find no prejudicial error. Hence, we will affirm.
A. 911 Call.
On August 27, 2005, Melissa M. (M.) made a 911 call from a payphone at a market. She told the operator, "[M]y boyfriend was beating me." She named defendant as her boyfriend.
B. Initial Interview.
At 7:15 a.m., Officer Vicente De La Torre responded to the 911 call.
When he arrived, M. was crying. She had a black eye and red "linear
marks" on the sides of her neck. He did not see any finger marks.*fn2
Photographs of M.'s injuries were in evidence.
M. told Officer De La Torre that defendant came home around 3:00 or 4:00 a.m. He had been trying to phone her, and he was angry because the phone was off the hook. He took a pink scarf, wrapped it around her neck, and strangled her with it. Next, he choked her with his hands. He said, "I'm gonna kill you . . . ." She lost consciousness for a couple of seconds, but he slapped her and she came to.
Next, defendant forced her to orally copulate him and then to have sexual intercourse with him. Afterwards, he fell asleep. M. thought for about an hour about what to do, but once she decided to leave, she ran to the market.
C. Sexual Assault Examination.
Officer De La Torre took M. to the hospital, where a nurse performed a sexual assault examination. M.'s right eye was bruised and swollen and there were red marks around her neck. There was also a scratch on her wrist. She had no injuries to her genitals, but this would be true 60 to 70 percent of the time when an adult female reported a sexual assault.
M. told the nurse that her boyfriend had wrapped a pink scarf around her neck and choked her with it for 15 minutes. He also slapped her and hit her. She "blacked out for a couple [of] seconds." The sex consisted of intercourse and oral copulation. It was stipulated that the DNA from sperm cells found in M.'s vagina matched defendant's DNA.
D. Defendant's Mother's Testimony.
Defendant's mother testified that on August 27, 2005, around 7:00 or 8:00 a.m., defendant had some scratches, and one of his lips was "burst or scratched." Later that morning, defendant was arrested. Photos of his injuries showed a scratch on his neck and a "busted" or bruised upper lip.
M. later told defendant's mother that she had punched defendant in the face "[o]ver a girl." She also said that she had made up the rape charges.
E. M's Meeting with a Defense Investigator.
In February 2006, M. told a defense investigator that defendant did not force her to have sex. She had made up this allegation because she was upset about a phone call from a girl. She also said that she had asked defendant to choke her for erotic purposes.
F. The Letter from M. to Defense Counsel.
In late 2005 or early 2006, M. gave defense counsel a letter (or declaration) in which she said that the sex had been consensual.
G. Interview Before a Previous Hearing.
In March 2006, Officer De La Torre, a deputy district attorney, and M. were in court together for a previous hearing. M. told them, "Everything I said in that letter was a lie." She added that everything she had told Officer De La Torre on the day of the incident was the truth.
H. Jail Phone Calls.
The jury heard two phone calls that defendant made to M. while he was in jail, one before and one after the previous hearing.
In the first call, on February 24, 2006, he told her to stop talking to "these people," adding, "[W]ould you rather me go to jail?"
He also told her, "[F]iling a false police report is only a misdemeanor, you're going to get probation. Would you rather me go to prison or you get probation?"
"I know what I did was wrong," he stated; " . . . I'm owning up to my responsibility."
In addition, he said, "[I]t's gonna have to go to prelim and I want you to be ready. I want you to get that letter from my mom.[*fn3 ] Don't forget, read over everything. Memorize it like it's a movie script."
In the second call, on April 18, 2006, defendant said, "What I did was foul, it was fucking wrong. It was stupid, it was sick." He told M.: "Go [into] hiding, something[,] either that or call you an attorney and tell them you have a problem in your hands, you got scared in . . . making some false accusations. I know, the accusations are real, but babe, just try to help me . . . ."
I. M.'s Telephone Calls with Defense Counsel.
Between January and July 2007, Stephen Cline, defendant's then-counsel, had a number of phone calls and one meeting with M. She told him that the sex had been consensual. She had made up the sexual assault allegations because she was angry. The pink scarf was used as part of the sex; "they had done this kind of thing before . . . ."
Defendant had hit her, she said, but she had started it, and she had hit him as well. She explained that, in the jailhouse phone calls, they had been talking solely about the domestic violence allegations.
M. said she had lied at the preliminary hearing because the district attorney's office told her, "You have to tell the story you told initially or you could lose your child. You could go to jail for perjury . . . ."
J. M.'s Meeting with a Defense Investigator.
Roughly around March 2008, a defense investigator had a conversation with M. at court. M. told the investigator that she had lied to the police about the rape allegations. She also said she was afraid to change her story because a prosecution investigator had threatened to charge her with perjury, which could mean that she would go to jail and lose custody of her child. She did not say that she was lying about the physical abuse.
K. M.'s Testimony at Trial.
At trial, M. testified that she and defendant had been living together since June 2005. On the night of August 26-27, 2005, she was jealous because he had been flirting with some women on a chat line. At 3:00 a.m.,*fn4 she woke up because defendant came into the bedroom. He asked, "Why didn't you answer the phone? I was trying to call." According to M., he was not angry. She realized that the phone was off the hook.
They argued. During the argument, defendant hit her in the eye with his fist, giving her a black eye. She hit him back, causing his cut lip.
Defendant put a pink scarf around her neck and tightened it, causing red marks. It hurt, but she testified that it did not make it hard to breathe. She did not lose consciousness (though she admitted telling Officer De La Torre that she did). She was hitting defendant and "trying to push him off."
After defendant removed the scarf, he put his hands around her neck and squeezed. She testified that he was not applying much pressure. The squeezing lasted for less than a minute. It did not make it hard to breathe (though she admitted telling Officer De La Torre that it did). M. fell on the bed and pretended to pass out so defendant would take his hands off her neck. He slapped her, but "not a hard slap, just like a pat to make sure I didn't pass out."
After the argument, they had consensual sex, including both intercourse and oral copulation (though she admitted telling Officer De La Torre that it was not consensual).*fn5
M. stayed in the apartment for about an hour, until defendant was sound asleep. She then went to the closest liquor store and called 911. About a week later, she learned that she was pregnant with defendant's child.
M. testified that she lied to Officer De La Torre and the sexual assault nurse because she was angry. What she said in the letter that she gave defense counsel was "[w]hat really happened."
According to M., she had contacted the prosecution several times to try to "set the record straight." Around the time of the preliminary hearing, however, when she was at court, a man "came out of nowhere" and said he was "an advocate of the judge . . . ." He knew about the letter. He told her that if she changed her story, she would go to jail for filing a false police report (or for perjury) and her child would be taken away from her. As a result, she felt "pressured" to stick with the story she had originally told Officer De la Torre.*fn6
L. Defendant's Testimony.
According to defendant, on the night of the incident, he was worried because M. was not answering the phone. When he got home, he found that it had been off the hook; he was not angry.
At that point, they had consensual sex, including both intercourse and oral copulation. M. wanted "kinky sex"; at her request, defendant put first a scarf and then his hands around her neck. That "must have been" what caused the marks on M.'s neck. She was never unconscious.
After that, defendant phoned the chat line. This made M. angry, and they got into an argument. Defendant stopped it by going to sleep. He awoke because M. punched him in the face, which caused his "busted lip." At first, he did not know who had hit him. In self-defense, he started throwing punches; one of them hit M. and presumably caused her black eye.*fn7 She kept trying to hit him, so he grabbed her wrists to restrain her. A further argument ensued. Eventually, defendant went back to sleep.
When defendant heard that the police wanted to talk to him, he contacted them voluntarily.
In the jailhouse conversations, when he said what he did was wrong, he meant "his relationship with other women and the injury to [M.'s] eye."
Defendant contends that the trial court erred by refusing to give a unanimity instruction. He argues that the jury could have found him guilty of assault with force likely to cause great bodily injury based on the act of choking M. with a scarf, the act of choking her with his hands, or the act of punching her in the eye. Similarly, he argues that it could have found him guilty of inflicting corporal injury on a cohabitant based on any one of these three acts or, additionally, based on the act of restraining her by the wrists.
A. Additional Factual and Procedural Background.
Defense counsel requested a unanimity instruction, Judicial Council of California Criminal Jury Instructions No. 3501. The trial court refused to give it. It explained: "[T]his is, in my view, a classic case of the doctrine of continuous course of conduct. Under those circumstances, the jury does not have to agree on which particular blow or act . . . of many that are alleged constituted the offense."
"In a criminal case, a jury verdict must be unanimous. [Citations.] . . . Additionally, the jury must agree unanimously the defendant is guilty of a specific crime. [Citation.] Therefore, cases have long held that when the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act. [Citations.]" (People v. Russo (2001) 25 Cal.4th 1124, 1132.)
"There are, however, several exceptions to this rule. For example, no unanimity instruction is required if the case falls within the continuous-course-of-conduct exception, which arises 'when the acts are so closely connected in time as to form part of one transaction' [citation], or 'when . . . the statute contemplates a continuous course of conduct or a series of acts over a period of time' [citation]. There also is no need for a unanimity instruction if the defendant offers the same defense or defenses to the various acts constituting the charged crime. [Citation.]" (People v. Jennings (2010) 50 Cal.4th 616, 679.)
With respect to the charge of assault with force likely to cause great bodily injury, the relevant acts were closely connected in time, and defendant offered the same defense. This charge was necessarily based on the act of choking M. with a scarf, the act of choking her with hands, or both. The act of punching her in the eye was a simple assault; it did not involve force likely to cause great bodily injury. (Cf. People v. McDaniel (2008) 159 Cal.App.4th 736, 748-749 [repeated punches, which fractured attacker's own knuckle and caused victim to require five stitches, involved force likely to cause great bodily injury]; People v. Chavez (1968) 268 Cal.App.2d 381, 384 [jury could find that repeated blows, which caused victim to require 13 stitches, involved force likely to cause great bodily injury].) Likewise, the act of holding or scratching her wrist was also simple assault. In closing argument, the prosecutor argued that defendant was guilty of assault with force likely to cause great bodily injury based exclusively on "the strangling with the scarf and the choking with the hands . . . ."
The evidence with respect to the two acts of choking, however, was virtually identical. M. told Officer De La Torre that defendant did one right after the other, out of anger. Defendant admitted doing one right after the other, but he claimed that he did both because M. wanted "kinky sex." No reasonable juror could have found that the act of choking M. with a scarf was a crime, but the act of choking her with the hands was not; or vice versa. Moreover -- particularly given defendant's admission -- no reasonable juror could have found that defendant did choke M. with the scarf but did not choke her with his hands, or vice versa. The jurors necessarily found defendant guilty of aggravated assault based on both acts.
With respect to the charge of inflicting corporal injury on a cohabitant, however, our analysis is somewhat different. This charge did not require force likely to cause great bodily injury; accordingly, it could have been based not only on the chokings, but also on the act of punching M. in the eye or the act of restraining her wrists. At least according to defendant, these acts were separated in time: The chokings came first, followed by an interlude in which the couple argued and defendant went to sleep; then came the punch in the eye and the wrist restraint. Moreover, defendant offered different defenses to the different acts. With respect to the chokings, he testified (and M. had, at times, admitted) that they were done with M.'s consent, for erotic purposes. With respect to the punch in the eye and the wrist restraint, he testified (and M. had, at times, suggested) that they were in self-defense.
The law is unclear with respect to whether this evidence showed a single count or multiple counts of inflicting corporal injury on a cohabitant. (Compare People v. Johnson (2007) 150 Cal.App.4th 1467, 1473-1477 with People v. Thompson (1984) 160 Cal.App.3d 220, 224-226.) For this reason, we will assume, without deciding, that the trial court erred by failing to give a unanimity instruction with respect to this charge.
We therefore turn to whether the error was prejudicial. The People urge us to apply the state law Watson*fn8 standard of harmless error. This court, however, is on record as holding that the higher federal constitutional Chapman*fn9 standard applies. (People v. Wolfe (2003) 114 Cal.App.4th 177, 185-188 [Fourth Dist., Div. Two].) We must follow this holding as a matter of stare decisis. The question, then, is whether the failure to give a unanimity instruction was harmless beyond a reasonable doubt.
As already discussed, from the jury's verdict finding defendant guilty of assault with force likely to cause great bodily injury, we know that the jury unanimously found that defendant choked M. both with a scarf and with his hands. The jury also unanimously found that this was a crime -- i.e., that it was not done at M.'s request or with her consent. It necessarily follows that the jury also unanimously found that this also constituted the infliction of corporal injury on a cohabitant. Of course, it is possible that some or all of the jurors found that the punch in the eye additionally constituted the infliction of corporal injury on a cohabitant. Nevertheless, we can be sure that, even if the trial court had given a unanimity instruction, the jurors would have agreed unanimously that defendant was guilty of inflicting corporal injury on a cohabitant based on both of his acts of choking M.
We therefore conclude that the trial court did not err by failing to give a unanimity instruction with regard to assault with force likely to cause great bodily injury. Assuming, without deciding, that it erred by failing to give a unanimity instruction with regard to the infliction of corporal injury on a cohabitant, the error was harmless beyond a reasonable doubt.
THE DENIAL OF DEFENDANT'S ROMERO MOTION
Defendant contends that the trial court abused its discretion by denying his Romero motion.
A. Additional Factual Background.
Defendant was born in June 1982; thus, at sentencing in 2009, he was 27.
Defendant had the following prior juvenile adjudications:
June 1998: Battery (Pen. Code, § 242), a misdemeanor. He failed to appear at his disposition hearing, and an arrest warrant was issued.
July 1999: Battery, a misdemeanor. He was committed to juvenile hall on both the 1998 and 1999 adjudications. After he was released, he violated his probation. Once again, he failed to appear, and an arrest warrant was issued. He was committed to juvenile hall again.
He also had the following prior adult convictions:
November 2000: Battery, a misdemeanor. He was placed on probation.
January 2001: Assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)), a felony. He was placed on probation. This was one of the strike priors.
January 2003: Second degree robbery (Pen. Code, § 211), a felony. He was sentenced to prison for two years. This was the other strike prior.
Defendant was still on parole when he committed the current offenses.
In the strike assault, defendant attacked his father with a straight-edged razor and a chair.
In the strike robbery, defendant tried to walk out of a supermarket with two half gallons of liquor concealed in his pants. When a loss prevention officer stopped him, he tried to stab the officer, who sustained a "small cut."
Defendant's father spoke (though not under oath) at the sentencing hearing. He considered the prior assault to be his fault. He explained that he was an alcoholic, he was drunk at the time, he got into a fight with defendant, and defendant was trying to protect the other family members.
M. wrote a letter stating that defendant had already served enough time and that his daughter needed him.
In the past, defendant had been diagnosed as having bipolar disorder. He was willing to enter Teen Challenge, a "live-in drug and alcohol rehabilitation center . . . ."
B. Additional Procedural Background.
Defendant filed a written Romero motion. The prosecution filed a written opposition. The trial court denied the motion. It found it "disturbing" that defendant had a "pretty striking . . . record of violence" over "a short time."
In Romero, the Supreme Court held that a trial court has discretion to dismiss a three-strikes prior felony conviction allegation under Penal Code section 1385. (People v. Superior Court (Romero), supra, 13 Cal.4th at pp. 529-530.) The focus of the analysis must be on "'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.' [Citation.]" (People v. Carmony (2004) 33 Cal.4th 367, 377.)
"[A] trial court's refusal or failure to dismiss or strike a prior conviction allegation under section 1385 is subject to review for abuse of discretion." (People v. Carmony, supra, 33 Cal.4th at p. 375.) "[W]e are guided by two fundamental precepts. First, '"[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve the legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review."' [Citation.] Second, a '"decision will not be reversed merely because reasonable people might disagree. 'An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.'"' [Citation.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (Id. at pp. 376-377.)
"[T]he three strikes law . . . creates a strong presumption that any sentence that conforms to [its] sentencing norms is both rational and proper." (People v. Carmony, supra, 33 Cal.4th at p. 378.) "Because the circumstances must be 'extraordinary . . . by which a career criminal can be deemed to fall outside the spirit of the very scheme within which he squarely falls once he commits a strike as part of a long and continuous criminal record, the continuation of which the law was meant to attack' [citation], the circumstances where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme must be even more extraordinary. Of course, in such an extraordinary case -- where the relevant factors . . . manifestly support the striking of a prior conviction and no reasonable minds could differ -- the failure to strike would constitute an abuse of discretion." (Ibid.)
There are no extraordinary circumstances in this case. Defendant had a recidivist history of violent crime. It was punctuated by failures to appear along with probation and parole violations. This criminal record amply demonstrated that he was unable to conform his conduct to the requirements of the law. The trial court correctly observed that, if, as he claimed, he was willing to change, he had had plenty of opportunities.
Defendant argues that his youth is mitigating. The flip side of this, of course, is that he had already managed to rack up two strike priors between the ages of 18 and 20, and he showed no sign of stopping. Indeed, his crimes tended to be increasingly serious.
Defendant also argues that his current offenses were "wobblers," not serious felonies, and that M.'s injuries were minor. This does not place him outside the spirit of the three strikes law, however, which applies even when the current offenses are not serious felonies. It is significant that they were crimes of violence, rather than nonviolent property crimes.
He also notes that two of his victims -- his father and M. -- asked for leniency. However, this is very common in domestic violence cases; while it is relevant, it cannot be controlling.
Finally, defendant points out that he was "willing to undergo counseling and treatment" at Teen Challenge. Teen Challenge, however, was a drug and alcohol rehabilitation program; defendant had no known problems with drugs or alcohol. Thus, it does not appear that this was either a meaningful effort at reform or likely to be effective.
For all these reasons, we conclude that the trial court did not abuse its discretion by denying defendant's Romero motion.
CRUEL AND UNUSUAL PUNISHMENT
Defendant contends that his sentence constitutes cruel and unusual punishment in violation of the state and federal constitutions.
Defendant forfeited this contention by failing to raise it below. (People v. Kelley (1997) 52 Cal.App.4th 568, 583; People v. DeJesus (1995) 38 Cal.App.4th 1, 27; People v. Ross (1994) 28 Cal.App.4th 1151, 1157, fn. 8.) Separately and alternatively, we reject this contention on the merits.
A. Analysis Under the Federal Constitution.
In Ewing v. California (2003) 538 U.S. 11 [123 S.Ct. 1179, 155 L.Ed.2d 108], the plurality opinion, signed by three justices, upheld a three-strikes sentence of 25 years to life for grand theft. It explained: "When the California Legislature enacted the three strikes law, it made a judgment that protecting the public safety requires incapacitating criminals who have already been convicted of at least one serious or violent crime. Nothing in the Eighth Amendment prohibits California from making that choice." (Id. at p. 25 (plur. opn. of O'Connor, J.).) With respect to the particular defendant, it noted: "In weighing the gravity of Ewing's offense, we must place on the scales not only his current felony, but also his long history of felony recidivism." (Id. at p. 29.) It concluded: "Ewing's sentence is justified by the State's public-safety interest in incapacitating and deterring recidivist felons, and amply supported by his own long, serious criminal record." (Id. at pp. 29-30, fn. omitted.)
Justices Scalia and Thomas, concurring in the judgment, believed that the cruel and unusual punishment clause simply does not guarantee of proportionality. (Ewing v. California, supra, 538 U.S. at pp. 31 [conc. opn. of Scalia, J.], 32 [conc. opn. of Thomas, J.].) Thus, a clear majority of the United States Supreme Court would uphold a three-strikes sentence in all but an "'exceedingly rare'" case. (Id. at p. 21; see also Lockyer v. Andrade (2003) 538 U.S. 63, 73-76 [123 S.Ct. 1166, 155 L.Ed.2d 144] [state court opinion upholding three-strikes sentence of 25 years to life for petty theft with a prior was not unreasonable application of previous United States Supreme Court decisions].)
This is not such a case. Even though defendant's criminal record was not as extensive as that of the defendant in Ewing, it did include two recent strike priors, both involving violence and the use of a weapon, as well as a number of violent misdemeanors. Moreover, unlike the defendant in Ewing, defendant's current offenses involved actual violence. Thus, his sentence was justified by the state's interest in incapacitating and deterring recidivist felons.
B. Analysis Under the State Constitution.
Under the state constitutional standard, "'[t]o determine whether a sentence is cruel or unusual as applied to a particular defendant, a reviewing court must examine the circumstances of the offense, including its motive, the extent of the defendant's involvement in the crime, the manner in which the crime was committed, and the consequences of the defendant's acts. The court must also consider the personal characteristics of the defendant, including age, prior criminality, and mental capabilities. [Citation.]' [Citation.] . . . 'If the court concludes that the penalty imposed is "grossly disproportionate to the defendant's individual culpability" [citation], or, stated another way, that the punishment "'"shocks the conscience and offends fundamental notions of human dignity"'" [citation], the court must invalidate the sentence as unconstitutional.' [Citation.]" (People v. Jennings, supra, 50 Cal.4th at p. 686.)
In re Lynch (1972) 8 Cal.3d 410 indicated that a court may also "compare the challenged penalty with the punishments prescribed in the same jurisdiction for different offenses which, by the same test, must be deemed more serious" (id. at p. 426), and "compar[e] . . . the challenged penalty with the punishments prescribed for the same offense in other jurisdictions having an identical or similar constitutional provision" (id. at p. 427). Subsequently, however, our high court held that if punishment is proportionate to the defendant's individual culpability ("intracase proportionality"), there is no requirement that it be proportionate to the punishments imposed in other similar cases ("intercase proportionality"). (People v. Webb (1993) 6 Cal.4th 494, 536; People v. Mincey (1992) 2 Cal.4th 408, 476; People v. Miller (1990) 50 Cal.3d 954, 1010.) Accordingly, the determination of whether punishment is cruel and unusual may be based solely on the offense and the offender. (People v. Ayon (1996) 46 Cal.App.4th 385, 399, disapproved on other grounds in People v. Deloza (1998) 18 Cal.4th 585, 600, fn. 10; see, e.g., People v. Young (1992) 11 Cal.App.4th 1299, 1308-1311; People v. Weddle (1991) 1 Cal.App.4th 1190, 1198-1200.)
Here, the outstanding characteristic of both the offense and the offender is the recidivist commission of serious or violent felonies. Defendant has manifested a persistent inability to conform his conduct to the requirements of the law. Based on such recidivism, a term of 25 years to life for each current offense "is not constitutionally proscribed." (People v. Stone (1999) 75 Cal.App.4th 707, 715.)
Defendant points out that his current offenses are not serious felonies. However, the Legislature and the electorate have chosen to make the three strikes law applicable even when the current felony offense is neither violent nor serious. The California Constitution does not prohibit this. (E.g., People v. Meeks (2004) 123 Cal.App.4th 695, 709-710 [three strikes sentence for failure to register as a sex offender].)
Defendant complains that he must serve a term longer than the sentence for such offenses as second degree murder, manslaughter, rape, or kidnapping. But "proportionality assumes a basis for comparison. When the fundamental nature of the offense and the offender differ, comparison for proportionality is not possible. The seriousness of the threat a particular offense poses to society is not solely dependent on whether it involves physical injury. Consequently, the commission of a single act of murder, while heinous and severely punished, cannot be compared with the commission of multiple felonies. [Citation.]" (People v. Cooper (1996) 43 Cal.App.4th 815, 825.)
In sum, a sentence of 25 years to life, for these offenses and this offender, is not cruel or unusual punishment within the meaning of either the state or the federal Constitution.
Defendant also contends that his three strikes sentence violates the federal double jeopardy clause.
Defendant forfeited this contention by failing to raise it below. (See People v. Scott (1997) 15 Cal.4th 1188, 1201.) He has not argued that his trial counsel's failure to raise it constituted ineffective assistance. (Cf. People v. Scott (2000) 83 Cal.App.4th 784, 792.)
Separately and alternatively, we reject this contention on the merits. Defendant asserts that "reliance solely upon prior convictions to increase punishment is a violation of the double jeopardy clause," citing, among other things, Witte v. United States (1995) 515 U.S. 389 [115 S.Ct. 2199, 132 L.Ed.2d 351]. Witte, however, actually said the exact opposite: "In repeatedly upholding . . . recidivism statutes, we have rejected double jeopardy challenges because the enhanced punishment imposed for the later offense 'is not to be viewed as either a new jeopardy or additional penalty for the earlier crimes,' but instead as 'a stiffened penalty for the latest crime, which is considered to be an aggravated offense because a repetitive one.' [Citations.]" (Id. at p. 400; see also Moore v. Missouri (1895) 159 U.S. 673, 677 [16 S.Ct. 179, 40 L.Ed. 301].)
Defendant also cites People v. Carmony (2005) 127 Cal.App.4th 1066 and Duran v. Castro (E.D. Cal. 2002) 227 F.Supp.2d 1121.) However, while both courts loosely peppered their analyses with double jeopardy terminology, their actual holdings were based on cruel and unusual punishment. (Carmony, at p. 1089; Duran, at p. 1136.) "'[I]t is axiomatic that cases are not authority for propositions not considered. [Citations.]' [Citation.]" (Gomez v. Superior Court (2005) 35 Cal.4th 1125, 1153.)
Accordingly, both in this case and in general, a three-strikes sentence does not violate double jeopardy. (People v. White Eagle (1996) 48 Cal.App.4th 1511, 1520; Allen v. Stratton (C.D. Cal. 2006) 428 F.Supp.2d 1064, 1078.)
THE PRIOR SERIOUS FELONY ENHANCEMENT
Defendant contends that the trial court erred by imposing a prior serious felony enhancement (Pen. Code, § 667, subd. (a)), because neither of his current convictions was a serious felony. The People concede the error. We agree. Aggravated assault under Penal Code section 245, subdivision (a)(1) is not a serious felony unless the prosecution both pleads and proves that the defendant personally used a deadly weapon. (Pen. Code, §§ 667, subd. (a)(4), 1197, subd. (c)(23)); People v. Equarte (1986) 42 Cal.3d 456, 465-466.) Defendant was charged with and convicted of assault by means of force likely to cause great bodily injury, which, by itself, is not a serious felony. (People v. Haykel (2002) 96 Cal.App.4th 146, 151.) Hence, this enhancement must be stricken.
The People have asked us to remand so the trial court can consider imposing the one-year prior prison term enhancement (Pen. Code, § 667.5, subd. (b)), which it originally struck, because it arose out of the same conviction as the prior serious felony enhancement. (See People v. Jones (1993) 5 Cal.4th 1142, 1149-1153.) Defendant has not opposed this request. We agree that this is the appropriate disposition.
The judgment with respect to conviction is affirmed. The judgment with respect to sentence is reversed. The matter is remanded to the trial court with directions to strike the prior serious felony enhancement, to consider imposing the one-year prior prison term enhancement (see part VI, ante), and otherwise to reimpose the original sentence.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS