The opinion of the court was delivered by: Blease , Acting P.J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Jeremy Ross Ivey was convicted by jury of making a criminal threat (Pen. Code, § 422).*fn1 Following a bifurcated hearing, the trial court found that defendant previously had been convicted of a "strike" offense within the meaning of the "Three Strikes" law (§§ 667, subd. (b)-(i), 1170.12) and that he had also served a prior prison term (§ 667.5, subd. (b)). Following an unsuccessful motion to strike defendant's strike conviction pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero), the trial court sentenced him to an aggregate term of seven years in state prison (upper term of three years, doubled pursuant to the Three Strikes law, plus a consecutive one-year term for the prior prison term), and imposed other orders.
On appeal, defendant contends: (1) the trial court abused its discretion by refusing to strike his prior strike conviction under Romero; and (2) his sentence is disproportionate to his crime in violation of the Eighth Amendment to the United States Constitution and article I, section 17, of the California Constitution. As we shall explain, we disagree and affirm the judgment.
Following the well-established rule of appellate review, we recite the facts in the light most favorable to the judgment, drawing all reasonable inferences in support thereof. (People v. Bogle (1995) 41 Cal.App.4th 770, 775.)
In May 2009, following a dependency hearing concerning reunification with one of defendant's children, defendant began to yell profanities at his attorney, Marc Barulich, in the hallway outside the courtroom. Concerned that the commotion would attract the attention of court security personnel, Barulich told defendant's girlfriend to take him out of the building. Defendant was stopped by security personnel in a stairwell as he tried to leave the courthouse. He was visibly angry and still yelling profanities. After a few minutes, defendant appeared to calm down and was allowed to leave.
After leaving the courthouse, defendant sat on a bench outside the building and called Barulich's office with his cell phone. Barulich's office assistant, Tracie Palmer, answered the phone: "Good afternoon, Marc Barulich's office." Defendant responded: "Put that little fucker on the phone." Rather than telling defendant that Barulich was still at the courthouse, Palmer told him that she was not inclined to put Barulich on the phone while defendant was yelling at her. Defendant responded by yelling that he "had been disrespected all morning in court" and was not going to take any further disrespect from her. Palmer then told defendant: "[M]aybe you should hang up, take a breath, call me back when you're calmer." After a couple more "I'm-not-going-to-be-disrespecteds," defendant paused and calmly stated: "You know, I need to just come down there and start shooting." He concluded the call with a particularly vile epithet and hung up the phone.
Barulich's office was across the street from the back of the courthouse. Roughly three minutes after hanging up the phone with Palmer, defendant entered the office. Palmer had just informed Barulich's secretary, Janice Hess, that defendant had called and that they might have a problem. When defendant entered the building, Palmer told him that he needed to leave. Instead, defendant aggressively approached her and started yelling that he had been "fucking disrespected" and asked her "who the hell did [she] think [she] was." Hess then asked Palmer if she should call the police, prompting defendant to pull out his cell phone and say: "Here, use my phone; if you want to call them, fucking use my phone."
Hess then went into her office and dialed 911. Defendant sat down on a couch in the lobby and said: "Fine, I'll just sit right here and wait for them." At this point, another attorney working out of the office, Rodney Key, went out into the lobby to investigate the situation. Key told the "agitated" and "confrontational" defendant that he would have to leave. Defendant eventually complied, but not before telling Palmer: "I know what time you get off work, you bitch."
Defendant was convicted by jury of making a criminal threat. The trial court found that he had been previously convicted of residential burglary in 1995, a strike offense within the meaning of the Three Strikes ...