APPEAL from a judgment of the Superior Court of Los Angeles County. Bruce F. Marrs, Judge. (Los Angeles County Super. Ct. No. KA085541)
The opinion of the court was delivered by: Rubin, Acting P. J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Darlene A. Vargas appeals from the judgment entered after she was again given a Three Strikes sentence for burglary after we reversed the judgment and remanded so the trial court could reconsider whether to dismiss one Three Strikes allegation because her two prior strike convictions arose from a single act. We reject her contention that it was an abuse of discretion to not dismiss one of the strike allegations solely because of that fact, and we also conclude that the trial court did not abuse its discretion when considering all the circumstances of Vargas's criminal history. Finally, we conclude that her prison sentence was not unconstitutionally cruel or unusual.
FACTS AND PROCEDURAL HISTORY*fn2
Around 2:00 p.m. on December 29, 2008, Lynn Burrows returned home to the house in Claremont that she shared with William Alves and their two sons to find it had been ransacked. Numerous items were missing, including computer equipment, cameras, a jewelry bag, cash, checks, a suitcase, a trashcan, and a backpack belonging to her son, Spencer. When Claremont police came to investigate, neighbor Gabriela Jimenez told them she saw a man and woman walking nearby sometime between 10:00 a.m. and 11:00 a.m. that day. The woman was rolling a suitcase. Sometime between noon and 1:00 p.m., Jimenez saw the same couple walking down the street. The woman was dragging a large gray trashcan filled with "bags  of stuff," and the man was carrying a large box.
Around noon the next day, Claremont Police Officer James Hughes was on patrol in the same neighborhood when he saw Oscar Velasquez and appellant Darlene Vargas near the front door of the Chavez house. Because they matched the description of the couple Jimenez saw the day before, Hughes called for back-up as he drove past, then made a U-turn and detained the pair. Another officer soon joined Hughes. Hughes knocked on the front door of the Chavez house to speak with the owner. Hughes then noticed a backpack on the ground nearby. When owner John Chavez came to the door, he told Hughes that he did not know Vargas or Velasquez and did not know who owned the backpack by his door. Chavez said he had not seen the backpack there when he went to get his morning newspaper at 6:00 a.m. The other police officer opened the backpack, where he found a blue IKEA bag, a green duffel bag, a knife, a hammer, several gloves, and $31 in change. A search of Velasquez turned up methamphetamine and a glass smoking pipe.
Later that day, Jimenez went to the police station, where she identified Vargas and Velasquez from photographic "six-pack" lineups. A police officer took the backpack found at the Chavez house and showed it to Spencer Burrows, who identified it as his.
Vargas and Velasquez were charged with burglary, grand theft, and receiving stolen property (the backpack) in connection with the break-in at the Alves/Burrows house, and with conspiracy to commit theft based on their presence in front of the Chavez house.*fn3 The information also alleged that Vargas had convictions for carjacking and robbery from a 1999 case that qualified as "strikes" under the Three Strikes law.
At trial, the members of the Alves-Burrows household identified as theirs various objects found in the possession of Vargas and Velasquez, while Jimenez identified Vargas and Velasquez at trial and reconfirmed her earlier photo identification of them.
The jury convicted Vargas and Velasquez of burglary, grand theft, and conspiracy to commit grand theft, but acquitted them of receiving stolen property. Vargas moved to dismiss one of the two Three Strikes allegations on the ground that both convictions arose from a single act. The trial court denied the motion because Vargas received concurrent sentences for the carjack and robbery convictions, which indicated that separate acts had been involved. However, because it found that Vargas was not entirely within the Three Strikes scheme, the trial court applied both Three Strikes allegations as to only the burglary conviction and dismissed the strike allegations as to the remaining counts. Because the burglary conviction in this case was Vargas's third strike, the court imposed a sentence of 25 years to life on that count. She received a combined state prison sentence of 30 years to life.
In Vargas I, we considered and rejected Vargas's contentions that the evidence was insufficient to support the convictions and that the photo line-up shown to eyewitness Jimenez was unduly suggestive. We agreed that the concurrent sentence imposed for the grand theft conviction should have been stayed. We rejected Vargas's contention that one of the Three Strikes allegations should have been dismissed in its entirety, concluding that the record before the trial court showed no abuse of discretion because the concurrent sentences imposed for her robbery and carjacking convictions suggested that separate acts had been involved. However, we granted Vargas's companion habeas corpus petition for ineffective assistance of counsel because her original trial lawyer did not provide the court with the preliminary hearing transcript from the proceeding where she eventually pleaded out to charges of carjacking and robbery. Because that transcript made it appear that both convictions arose from a single act, and because the trial court found that Vargas did not fall entirely within spirit of the Three Strikes scheme when it dismissed those allegations as to two of the three new convictions, we reversed and remanded for a new sentencing hearing so that new evidence could be presented on that issue for the trial court to reconsider.*fn4
On remand, no new evidence other than the preliminary hearing transcript from Vargas's 1999 carjack/robbery conviction was presented. The trial court found that despite what the transcript showed, Vargas still fell enough within the Three Strikes scheme to warrant imposing a full Three Strikes sentence on the one burglary count. According to the court, the transcript from the preliminary hearing showed that Vargas took the lead role in a crime that involved the use of a weapon. She twice violated parole while serving her sentence for that crime, committed another crime in 2007 - misdemeanor trespassing - and then committed her current offenses, which showed she would have continued to burgle people's homes if she had not been stopped.
Vargas contends the trial court erred because: (1) case law requires automatic dismissal of a Three Strikes allegation when it is one of multiple convictions incurred for only a single act, particularly in regard to carjacking and robbery; (2) even if that rule does not apply, the trial court abused its discretion under the analysis ordinarily used when considering the dismissal of Three Strikes allegations; and (3) her sentence of 30 years to life violates the protections against cruel and/or unusual punishment found in the United States and California Constitutions.
Under the Three Strikes law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12), prior convictions for certain serious or violent felonies qualify as "strikes" that increase the prison sentence of a defendant who has been convicted of another felony. One "strike" will double the ordinary prison term, while two or more strikes will lead to an indeterminate sentence of at least 25 years to life. (§§ 667, subd. (e)(1), (2); 1170.12, subd. (c)(1), (2).)*fn5 Carjacking and robbery are both designated as strike offenses. (§§ 667.5, subd. (c)(9) & (17), 1192.7, subd. (c)(19) & (27).)
The determination of whether a prior felony conviction qualifies as a strike is not affected by the sentence imposed unless the sentence automatically converts to a misdemeanor at the initial sentencing. (§§ 667, subd. (d)(1), 1170.12, subd. (b)(1).) Various other sentencing dispositions also have no effect on the determination of what prior convictions qualify as strikes, including the stay of execution of sentence. (§§ 667, subd. (d)(1)(B), 1170.12, subd. (b)(1)(B).)
Trial courts have discretion under section 1385 to dismiss Three Strikes allegations in the furtherance of justice. In deciding whether to exercise this discretion, the trial court must take into consideration the defendant's background, the nature of the current offense and other individualized considerations. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 531 (Romero).) "Preponderant weight" must be given to factors intrinsic to the Three Strikes scheme, including the nature and circumstances of the defendant's present felonies and prior serious or violent felony convictions, and the particulars of her background, character, and prospects. (People v. Williams (1998) 17 Cal.4th 148, 161.)
We review the trial court's decision under the abuse of discretion standard. (People v. Carrasco (2008) 163 Cal.App.4th 978, 992-993.) A trial court abuses its discretion when it refuses to dismiss because of personal antipathy for the defendant while ignoring her background, the nature of her present offenses, and other individualized considerations. When determining whether to dismiss a Three Strikes allegation, the trial court must consider whether, in light of the nature and circumstances of her present felonies and prior serious or violent felony convictions, along with the particulars of her character, background, and prospects, the defendant may be deemed to be outside the Three Strikes scheme in whole or in part. (Id. at p. 993.)
Carjacking occurs when a car is taken by force or fear, regardless of whether the perpetrator had the intent to permanently or temporarily deprive the victim of the car. (§ 215, subd. (a).) When the thief had the intent to permanently deprive the victim of his car, the crime is also a robbery. (People v. Scott (2009) 179 Cal.App.4th 920, 928-929 (Scott).) The carjacking statute allows convictions for both offenses, but does not allow punishment for both when they were each based on the same act. (§ 215, subd. (c).) This provision incorporates the principles of section 654, which prohibits multiple punishments when multiple convictions arise from an indivisible course of conduct involving ...