Opinion
A165860
11-07-2022
THE PEOPLE, Plaintiff and Respondent, v. ADAM AYALA, Defendant and Appellant.
NOT TO BE PUBLISHED
(Stanislaus County Super. Ct. No. 19-009194)
VAN AKEN, J. [*]
Defendant Adam Ayala broke down the door of his ex-girlfriend K.B.'s home in the early hours of the morning on September 24, 2019. The prosecution's trial evidence showed that Ayala entered K.B's apartment and went into the bedroom, where he found K.B. and her current boyfriend. Ayala punched K.B.'s boyfriend, knocking him unconscious. Then Ayala punched and choked K.B., and fought with the boyfriend after he regained consciousness and came to K.B.'s aid. Ayala testified on his own behalf, admitting he broke down the door but recounting the altercation differently and claiming that his intent when he entered was to check on his infant daughter, who was sleeping in a crib next to the bed that K.B. and her boyfriend shared.
A jury convicted Ayala of first degree residential burglary (Pen. Code, §§ 459, 460) and found true the enhancement that another person not an accomplice was present in the home (§ 667.5, subd. (c)(21)). The jury also convicted Ayala of felony domestic violence against K.B. (§ 273.5, subd. (a)); felony assault with force likely to produce great bodily injury on the boyfriend (§ 245, subd. (a)(4)); and misdemeanor vandalism (§ 594, subd. (b)(2)(A)). Ayala admitted to suffering four prior strike convictions, and the trial court sentenced him to a term of 33 years to life: 25 years to life for the serious and violent felony of residential burglary with a hot-prowl allegation, plus a consecutive eight-year term for the other charges.
All subsequent statutory references are to the Penal Code except as otherwise noted.
On appeal, Ayala argues (1) there was insufficient evidence to support the jury's finding that he entered K.B.'s apartment with felonious intent; (2) the trial court abused its discretion when it denied his motion to dismiss the allegation that he suffered three prior strike convictions, which compelled his indeterminate life sentence; and (3) his indeterminate sentence of 33 years to life under the "Three Strikes" law offends the California Constitution's protection against cruel and unusual punishment. We affirm.
BACKGROUND
Ayala and K.B. dated for about two years and broke up in October 2018, shortly after K.B. became pregnant with their daughter. After their breakup, Ayala occasionally spent the night at K.B.'s apartment, and they saw each other in the course of co-parenting the child. At the time of the events giving rise to this case, Ayala did not have K.B.'s permission to enter her apartment.
Because our task is to review the record in the light most favorable to the verdict, the facts presented here are taken largely from the prosecution's evidence, but we note factual disputes and conflicting evidence where relevant.
On the evening of September 24, 2019, K.B. was spending time at her apartment with her current boyfriend, whom she had been dating for a few weeks, and with her daughter. K.B. had made her boyfriend a "birthday basket" containing beer, a card, and other items, and it was sitting on her kitchen table. Ayala came over that night about 10:00 p.m., saw K.B. and her boyfriend sitting outside her apartment on the steps, and walked past them inside. According to K.B., Ayala was rude, aggressive, and angry. After she told him to leave, Ayala took a beer from the basket, walked out, and threw the beer into the apartment complex's swimming pool.
Ayala offered a different account. According to his testimony, Ayala came over to check on his infant daughter. He saw K.B. and her boyfriend outside, went inside to check on his child, and then asked K.B. if she was drinking that night and what was going on. After she indicated he should leave, Ayala grabbed a beer bottle from the table because he was frustrated, threw the beer into the swimming pool, and left. Ayala believed K.B. was intoxicated during their conversation, but K.B. said she had not been drinking that night.
After Ayala left, K.B. and her boyfriend eventually went to sleep in K.B.'s bedroom; the adults were in the bed while the baby slept in a crib next to the bed. Ayala went to a poker establishment, where he drank several beers and played poker until past 3:00 a.m. He hired a car to take him home, but on the way, decided to make a stop at K.B.'s apartment. Shortly before 3:50 a.m., he kicked open K.B.'s locked front door, breaking the door frame. He entered the bedroom and went to K.B.'s boyfriend, who was laying on the bed, and punched him in the face. The boyfriend had been awakened by the sound of Ayala breaking the door frame, but he lost consciousness as a result of the punch. Ayala went to the other side of the bed and punched K.B. in the face. K.B. pushed Ayala out of the bedroom and into the hallway to get him away from the sleeping child. Ayala threw K.B. against the wall and choked her neck with one hand. K.B.'s boyfriend regained consciousness and came out of the bedroom, where he saw K.B. on the floor screaming, with a bloody face, and Ayala standing over her and kicking her. The boyfriend and Ayala fought, with Ayala putting the boyfriend in a chokehold, punching him, and saying, "You want some?" and "This is my house." K.B. went outside and called 9-1-1. The boyfriend and Ayala separated, and Ayala asked the boyfriend for a towel to wipe his face, which the boyfriend gave him.
When K.B. returned to her apartment after Ayala left, she found it "torn apart" from the fight. The baby remained asleep in the bedroom. The boyfriend sustained a black eye, a bloody nose, a swollen face, and an eyebrow laceration from the fight; K.B. had pain and bruising on her face, pain and redness on her neck, and a black eye.
Ayala was interviewed by police on September 26, 2019. The police detective who took his statement observed no visible injuries to Ayala's face or hands. Ayala told the detective that he had been worried about his infant daughter's welfare and about whether K.B. was drinking and having men stay over while the baby was present. Ayala decided, on the spur of the moment, to check on the baby on his way home from the poker establishment. He knocked on K.B.'s door for "quite a while," and when she did not answer he "flipped out" and "pushed [his] way through the door" to check on his daughter. When he entered the bedroom, K.B. attacked him, swinging at him and driving him into the hallway. The boyfriend attacked Ayala as well, and both K.B. and her boyfriend jumped on top of Ayala. Eventually they either got off Ayala or he pushed them off.
Ayala was charged by amended information with first degree burglary (§§ 459, 460), including an allegation that another person other than an accomplice was present in the home (§ 667.5, subd. (c)(21)); feloniously inflicting a corporal injury resulting in a traumatic condition on his co-parent K.B. (§ 273.5, subd. (a)); felonious assault with force likely to produce great bodily injury on K.B.'s boyfriend (§ 245, subd. (a)(4)); and misdemeanor vandalism arising from breaking the door (§ 594, subd. (b)(2)(A)). The information also alleged that he had four prior serious felony convictions: one count of robbery in San Joaquin County in November 2010, two counts of robbery in Stanislaus County in February 2011, and one count of robbery in Merced County in May 2011. Prior to trial, Ayala's counsel asked the trial court to dismiss three allegations of prior serious felony convictions, arguing that it would violate "the spirit of the Three Strikes law" for Ayala to be considered to have four strikes rather than one, because the prior convictions reflected "a short period of aberrant behavior." All of the underlying incidents, Ayala's counsel pointed out, occurred in 2009, with three of them occurring in the same month. The prosecution did not dispute those facts, but pointed out that the crimes arose in three separate counties involving four separate victims. The trial court explained that it would have to strike three of the four prior strike convictions to remove Ayala from the jeopardy of an indeterminate life sentence. The court declined to do so, finding that "based on the number of offenses," Ayala was not "outside of the spirit of Three Strikes. . . . [¶] Although they were committed in a short period of time, they were at separate locations, involved separate victims, and [he] would not be in the position that he is now had it not been for an additional act that now puts him at risk of a Three Strikes sentence."
Ayala was tried before a jury, which heard testimony from K.B., her boyfriend, Ayala, and others. K.B. and her boyfriend testified to the events recited above. K.B. also recounted prior instances of violent or jealous behavior by Ayala. In September 2017, Ayala was angry when her ex-boyfriend came over to her home. Ayala chased the ex-boyfriend with his car and smashed the windows of the ex-boyfriend's mother's home with a bat. A few weeks before September 2019, Ayala came to K.B.'s door yelling to be let in and kicking the door; he left when K.B. called the police. The jury also heard that Ayala told a defense investigator that he was angry that K.B. was having sex with someone else.
In Ayala's trial testimony, he told the jury substantially the same account he relayed to the Modesto police detective: he admitted to breaking down the door, but claimed he intended only to check on his daughter; he was first attacked by K.B. and then by her boyfriend before he left. The jury also heard a recording of his statement to the Modesto police. The jury convicted him on all counts. After he was convicted, Ayala admitted to the prior strike allegations.
At sentencing, the probation report showed that Ayala had a felony conviction for possession for sale of marijuana (Health & Saf. Code § 11359) resulting in a probation sentence in 2001; a misdemeanor battery conviction (§ 242) resulting in probation in 2004; and four robbery convictions (§ 211) in 2010 and 2011: one count from San Joaquin County, one count from Merced County, and two counts from Stanislaus County. The robbery convictions collectively resulted in a three-year prison sentence. The probation report also showed a felony conviction for vandalism (§ 594, subd. (b)(1)) from May 24, 2019, resulting in five years' probation; according to the evidence received at trial, the vandalism conviction arose out of Ayala's encounter with K.B.'s ex-boyfriend. Ayala's counsel renewed his request for dismissal of three of the four prior strike allegations. Counsel again argued that a third strike sentence would be "unfair" and "out of proportion" where Ayala's prior strike convictions all arose from isolated conduct within the same six-month period in 2009. Ayala committed a string of robberies in 2009, was caught during commission of the last crime, was punished subsequent to all of his robberies, and committed no serious or violent offenses for the following 10 years. Counsel argued that Ayala's pattern of conduct was less culpable than that of defendants who receive punishment for a strike offense and then return to the community to commit new strike offenses, and dismissing some of Ayala's prior strikes would better reflect his culpability. Counsel also argued that because the victims in the present case suffered no serious injuries, an eight-year sentence-double the middle term for the burglary conviction (§ 461, subd. (a))-was appropriate and sufficient punishment for Ayala's conduct. The trial court again denied the request, finding that Ayala was within the spirit of the Three Strikes law because he committed four serious crimes and continued to reoffend, because he was on felony probation for vandalism related to his relationship with K.B. when he committed the instant offenses, and because his current offenses posed a significant risk of harm.
The trial court sentenced him to 25 years to life on the burglary conviction with the hot-prowl enhancement, plus six years servable consecutively on the assault conviction (the middle term of three years, doubled for the prior strikes); two years servable consecutively on the domestic violence conviction (one-third of the middle term of three years, doubled for the prior strikes); and 180 days in the county jail servable concurrently on the vandalism conviction. The court imposed and stayed three additional five-year consecutive terms for each of the three prior convictions alleged pursuant to § 667, subdivision (a)(1). The total unstayed sentence was 33 years to life. This appeal followed.
DISCUSSION
I. Sufficiency of the Evidence
"Under the due process clauses of both the Fourteenth Amendment of the federal Constitution and article I, section 15 of the California Constitution, the test of whether evidence is sufficient to support a conviction is 'whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" (People v. Holt (1997) 15 Cal.4th 619, 667.) "In making this assessment the court looks to the whole record, not just the evidence favorable to the respondent[,] to determine if the evidence supporting the verdict is substantial in light of other facts." (Ibid.) "Evidence is sufficient to support a conviction only if it is substantial, that is, if it' "reasonably inspires confidence"' [citation], and is 'credible and of solid value.'" (People v. Raley (1992) 2 Cal.4th 870, 891.) Where a reviewing court finds substantial evidence that a rational trier of fact could credit in support of the verdict, it is not free to "reweigh the evidence or redetermine issues of credibility." (People v. Carbajal (2003) 114 Cal.App.4th 978, 986-987.) These standards apply whether the evidence of guilt is direct or circumstantial. (Holt, at p. 668.)
"Residential burglary is entering a residence with the intent to steal or to commit any other felony." (People v. Cowan (2010) 50 Cal.4th 401, 496.) Ayala contends that there is insufficient evidence to support the jury's finding that he entered K.B.'s apartment with felonious intent. He points to his trial testimony that he was concerned about his infant daughter and worried that K.B. was drinking and having men stay overnight while the baby was present, and that he meant only to check on the baby's welfare when he broke in. We reject this argument; the circumstantial evidence of his assaultive intent provided substantial evidence on which a reasonable jury could and apparently did rely.
In burglary cases, intent at the time of entry is frequently discerned through circumstantial evidence." '[S]uch intent is rarely susceptible of direct proof, and must, therefore, ordinarily be inferred from the facts and circumstances disclosed by the evidence [citations].'" (People v. Hinson (1969) 269 Cal.App.2d 573, 577-578; see also People v. Franklin (1957) 153 Cal.App.2d 795, 797-798; People v. Nichols (1961) 196 Cal.App.2d 223, 227.) Circumstantial evidence of intent often takes the form of evidence of a defendant's actions once he has entered. (See, e.g., People v. Walls (1978) 85 Cal.App.3d 447, 452; People v. Clifton (1957) 148 Cal.App.2d 276, 279.) Indeed, numerous cases hold that a reasonable factfinder can infer felonious intent from illicit or forcible nighttime entry alone. (See, e.g., People v. Soto (1879) 53 Cal. 415, 416; Hinson, at pp. 577-578; Nichols, at p. 227; Franklin, at pp. 797-798.)
Our review of the entire record discloses that the facts and circumstances supply substantial evidence of Ayala's violent intent. One set of circumstances relates to his conduct before the entry; the jury heard-and Ayala did not dispute-that he visited K.B.'s apartment around 10:00 p.m. on the night of the attack, encountered her and her boyfriend celebrating her boyfriend's birthday together, and took a beer from them and threw it into the apartment complex's swimming pool. K.B. also testified that Ayala was rude, aggressive, and angry during that encounter; that he tried to break down her door on another occasion just a few weeks before; and that he had previously lashed out violently against one of her ex-boyfriends and the ex-boyfriend's mother.
Substantial evidence of Ayala's violent intent is also supplied by evidence of the altercation itself. K.B. and her boyfriend testified that Ayala punched each of them while they were laying in bed. K.B. told the jury that after she pushed him out of the bedroom to get him away from the baby, Ayala choked K.B. in the hallway. While Ayala was fighting the boyfriend, Ayala told him "this is my house." This evidence is consistent with an intent by a jealous ex-boyfriend to enter the home to punish K.B. and her boyfriend for being romantically involved by attacking them, and supplies substantial evidence on which a reasonable factfinder could have relied.
The jury was not required to accept Ayala's contrary account of the incident, which was inconsistent not only with other trial testimony but with evidence that K.B. and her boyfriend both suffered visible injuries from the altercation, while Ayala had no visible injuries two days later. A reasonable jury could have disbelieved Ayala's self-serving trial testimony, and we are not free to reweigh the jury's determinations of witness credibility. (People v. Carbajal, supra, 114 Cal.App.4th at pp. 986-987 ["[I]t is not within our province to reweigh the evidence or redetermine issues of credibility"]; People v. Hinson, supra, 269 Cal.App.2d at p. 577 [rejecting invitation to "reweigh and reinterpret the evidence in a manner consistent with his innocence of the crime of burglary"].) Ayala seems to argue implicitly that because there was direct evidence of his peaceful intent presented at trial-his statement about what was in his mind when he entered K.B.'s home- and no direct evidence of violent intent, the jury was required to accept his direct evidence over the circumstantial evidence of violent intent presented by the prosecution. That argument is not supported by the law. Rather, neither direct nor circumstantial evidence is entitled to greater weight than the other, and it is for the jury to decide what weight the evidence deserves. (See, e.g., People v. Anderson (2007) 152 Cal.App.4th 919, 929-930.)
In view of the entire record, we conclude there is sufficient evidence supporting Ayala's first degree burglary conviction.
II. Third Strike Sentence
California's Three Strikes law provides that where a defendant convicted of a serious or violent felony "has two or more prior qualifying [felony strike convictions], the prescribed sentence is 'an indeterminate term of life imprisonment . . . .'" (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 505-506.) Ayala's four robbery convictions, suffered in 2010 and 2011, are violent and serious felonies. (§§ 667.5, subd. (c)(9); 1192.7, subd. (c)(19).) Prior to trial and again at sentencing, Ayala asked the trial court to exercise its discretion to dismiss three allegations of prior strike convictions so that he would be eligible for a determinate sentence. The trial court declined this invitation, and Ayala now argues this was an abuse of discretion.
The legal standards governing the trial court's decision, and our review, are well settled. "[W]hen facing a motion to dismiss a strike allegation, the trial court 'must consider whether, in light of the nature and circumstances of [the defendant's] present felonies and prior serious and/or violent felony convictions, and the particulars of [the defendant's] 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. Vargas (2014) 59 Cal.4th 635, 641 (Vargas), quoting People v. Williams (1998) 17 Cal.4th 148, 161 (Williams).) The trial court must "give 'no weight whatsoever . . . to factors extrinsic to the [Three Strikes] scheme'" but instead "must accord 'preponderant weight . . . to factors intrinsic to the scheme, such as the nature and circumstances of the defendant's present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects.'" (People v. Garcia (1999) 20 Cal.4th 490, 498-499.) "Ultimately, a court must determine whether 'the defendant may be deemed outside the scheme's spirit, in whole or in part.'" (Id. at p. 499.)
"[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.) "To show an abuse of discretion, the defendant must show that the trial court's decision was 'so irrational or arbitrary that no reasonable person could agree with it.'" (People v. Mendoza (2022) 74 Cal.App.5th 843, 856.) "Accordingly, 'a trial court will only abuse its discretion in failing to strike a prior felony conviction allegation in limited circumstances. For example, an abuse of discretion occurs where the trial court was not "aware of its discretion" to dismiss [citation], or where the court considered impermissible factors in declining to dismiss.'" (Ibid.) This standard is deferential, "[b]ut it is not empty. . . . [I]t asks in substance whether the ruling in question "falls outside the bounds of reason" under the applicable law and the relevant facts . . . .' [Citation.]" (People v. Vasquez (2021) 72 Cal.App.5th 374, 380.)
Here, the trial court noted that it would have to dismiss at least three of Ayala's four prior strike convictions to avoid sentencing him to an indeterminate life sentence were he convicted of first degree burglary. It denied his request because his four prior robbery convictions, although suffered close in time, involved different victims and different occasions. It explained that "someone who has four bank robberies and is released from prison and then continues to violate the law is exactly what Three Strikes is aimed at preventing. . . . These are actually serious crimes where people can get hurt, and he had four of them." The court gave particular weight to the fact that Ayala was on probation for felony vandalism at the time he committed the instant offenses; his felony vandalism conviction arose out of his breaking the windows of K.B.'s ex-boyfriend's mother. It also expressed concern about the danger to the victims in this case, noting that "domestic violence is [not] something to be taken lightly."
This determination, vested in the trial court, did not constitute an abuse of discretion because the trial court considered the nature and circumstances of Ayala's present crimes and his prior criminal history to reach a reasoned decision that he was not outside the spirit of the Three Strikes law.
Comparing the facts of this case and Ayala's prior criminal history to other cases where courts have analyzed the dismissal of prior strike allegations is instructive. In Williams, our Supreme Court found an abuse of discretion where the trial court, in sentencing a defendant for a felony committed in 1995, dismissed one of two strike allegations from 13 years prior to the sentencing offense where the defendant suffered two felony and seven misdemeanor convictions after his strike convictions. (Williams, supra, 17 Cal.4th at pp. 152-153, 162-163.) Williams found special significance in the fact that the defendant's most recent conviction was for misdemeanor spousal battery just three months prior to the sentencing offense. (Id. at p. 164.) Ayala's criminal history, although less extensive than the Williams defendant's, featured four strike convictions rather than two, and Ayala had been placed on felony probation just a few months before committing the current offenses.
By contrast, People v. Avila (2020) 57 Cal.App.5th 1134 (Avila) concluded that the trial court abused its discretion in failing to dismiss three prior strike allegations arising from crimes the defendant committed when he was under 20 years old, where the defendant was 47 at the time of his new crimes, and his new crimes were robbery and attempted extortion arising out of squashing the oranges of street vendors who failed to pay a demanded street tax. (Id. at pp. 1141- 1142.) Ayala's prior criminal history is more extensive and recent than the defendant's in Avila. Ayala was not a youthful offender at the time of his prior strike convictions, and his current offense is far more violent than the crimes at issue in Avila. Nor did Ayala present the kind of mitigation evidence that the Avila defendant provided of longstanding drug addiction and a history of trauma. (Id. at pp. 1144 & fn. 10, 1148-1149.)
To the extent Ayala suggests that the trial court was bound to treat his four prior robbery convictions as a single strike prior because he committed these offenses within a short period of time, he is incorrect as a matter of law. Even where two crimes are so closely connected to the same course of conduct that they cannot be separately punished under section 654, "such close factual and temporal connection [does] not prevent the trial court from later treating the two convictions as separate strikes when the accused reoffend[s]. [Citation.]" (People v. Vargas, supra, 59 Cal.4th at p. 638.) Because these convictions arose out of conduct Ayala committed on different occasions, the trial court's decision to treat them as separate strike convictions was a reasonable exercise of its discretion under Vargas.
While there is no doubt that Ayala's sentence is harsh, given our Supreme Court's binding authorities and the persuasive decisions of our sister Courts of Appeal, we cannot say that the trial court's decision was outside the bounds of reason. The trial court therefore did not abuse its discretion in declining to dismiss three proven allegations of prior strike convictions.
III. Cruel or Unusual Punishment
Ayala's final contention is that his indeterminate sentence of 33 years to life constitutes cruel or unusual punishment in violation of the California Constitution. He argues that his sentence is disproportionate to the harm he intended and inflicted: he went to the apartment to check on his daughter at least in part, he argues, and although his entry resulted in a fight, he was in the apartment for no more than 10 minutes and neither K.B. nor her boyfriend required medical treatment afterwards. Ayala did not raise this claim in the trial court, but we exercise our discretion to address it on appeal. (See People v. DeJesus (1995) 38 Cal.App.4th 1, 27 [addressing waived claim that sentence constituted cruel and unusual punishment" 'in order to forestall a subsequent claim of ineffectiveness of counsel' "].) Because Ayala's sentence reflected not only the harm and danger from this incident but also his recidivist history, we conclude that his sentence does not constitute cruel or unusual punishment.
"Cruel and unusual punishment is prohibited by . . . article I, section 17 of the California Constitution." (People v. Mantanez (2002) 98 Cal.App.4th 354, 358, fn. omitted.) A claim of cruel or unusual punishment is measured against the standards set out in In re Lynch (1972) 8 Cal.3d 410 (Lynch). "A petitioner attacking his sentence as cruel or unusual must demonstrate his punishment is disproportionate in light of (1) the nature of the offense and defendant's background, (2) the punishment for more serious offenses, or (3) punishment for similar offenses in other jurisdictions. [Citation.] The petitioner need not establish all three factors-one may be sufficient [citation], but the petitioner nevertheless must overcome a 'considerable burden' to show the sentence is disproportionate to his level of culpability [citation]." (In re Nunez (2009) 173 Cal.App.4th 709, 725.) Because "setting prison terms for specific crimes involves substantive penological judgments within the province of legislatures rather than courts, . . . courts must give substantial deference to the broad authority legislatures have in setting punishment for crimes." (Mantanez, at p. 362.) "As a result, '[f]indings of disproportionality have occurred with exquisite rarity in the case law.' [Citation.]" (Nunez, at p. 725.)
The first Lynch factor considers the nature of the offense itself and the defendant's background. Ayala argues that this factor favors him in light of the minimal harm he inflicted on K.B. and her boyfriend. We disagree; the punishment for residential burglary is based not on the outcome of a particular incident but on the social risks the crime presents across the run of cases. "Residential burglary is an extremely serious crime presenting a high degree of danger to society.' "Burglary laws are based primarily upon a recognition of the dangers to personal safety created by the usual burglary situation-the danger that the intruder will harm the occupants in attempting to perpetrate the intended crime or to escape and the danger that the occupants will in anger or panic react violently to the invasion, thereby inviting more violence." [Citation.] In addition, a burglary of an inhabited dwelling involves an invasion of perhaps the most secret zone of privacy . . . . Society therefore has an important interest in seeing to it that burglars stay out of inhabited dwelling houses.' [Citation.]" (People v. Weaver (1984) 161 Cal.App.3d 119, 127.) Moreover, the jury's finding that Ayala entered with an intent to commit violence against the occupants of the home places this case among the more dangerous examples of burglary.
The nature of the offense is only one consideration in the first Lynch factor; we must also consider the defendant's prior criminal history. "Recidivism in the commission of multiple felonies poses a danger to society justifying the imposition of longer sentences for subsequent offenses." (People v. Cooper (1996) 43 Cal.App.4th 815, 823-824.) Recidivism statutes, Cooper explains, are based on the idea that at some point someone who" 'repeatedly commits criminal offenses serious enough to be punished as felonies'" should be" 'segregate[d] . . . from the rest of society for an extended period of time.'" (Id. at p. 824.)" 'Like the line dividing felony theft from petty larceny, the point at which a recidivist will be deemed to have demonstrated the necessary propensities and the amount of time that the recidivist will be isolated from society are matters largely within the discretion of the punishing jurisdiction.'" (Ibid., quoting Rummel v. Estelle (1980) 445 U.S. 263, 284-285.) Courts have found indeterminate life sentences to impose cruel or unusual punishment on Three Strikes recidivists only in rare circumstances not present here. (E.g., Avila, supra, 57 Cal.App.5th at pp. 1141-1142 [defendant's new crime involved minimal violence and his prior strike offenses were suffered more than 20 years prior when he was under 20 years old]; People v. Carmony (2005) 127 Cal.App.4th 1066, 1080-1081 [defendant was sentenced to life for a technical violation of sex-offender registration laws, where his strike offenses were remote in time, and his current offense did not pose a risk to public safety].) Here, Ayala's present offense involved significant violence and danger to society, he was on felony probation for domestic violence-related conduct at the time of the offense, and his prior strike convictions were not as remote.
Nor do the second and third Lynch factors favor Ayala. Ayala argues that the intrajurisdictional comparison of his sentence for a third strike residential burglary to California's sentences for other, more serious crimes like second degree murder and rape demonstrates that his punishment is disproportionate. But his comparison of third strikes sentences to sentences for first or second strike offenders is not useful because it disregards the Three Strikes law's rational concern with prior serious criminal behavior. (See People v. Haller (2009) 174 Cal.App.4th 1080, 1093 ["a third strike offender who committed multiple offenses in the current case . . . is not comparable to second strike offenders who commit one new offense"].) Ayala also argues that his sentence is disproportionate when compared to the treatment of similar conduct by other jurisdictions. This third Lynch factor weighs in favor of finding cruel and unusual punishment only where "the challenged penalty is found to exceed the punishments decreed for the offense in a significant number of [other] jurisdictions." (Lynch, supra, 8 Cal.3d at p. 427.) Ayala offers no comparison with any other specific jurisdiction, much less a significant number of them, and he has not shown this factor to weigh in his favor.
Our role in applying Lynch's constitutional test is to rein in outlier sentences that are so disproportionate that their cruelty is apparent. We cannot say this is one such rare instance.
DISPOSITION
The judgment is affirmed.
We concur: Richman, Acting P.J., Stewart, J.
[*] Judge of the San Francisco Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.