Opinion
C082954
01-21-2020
THE PEOPLE, Plaintiff and Respondent, v. LOVE DAVIS, JR., Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 15F01859)
On March 24, 2015, defendant, a long-time methamphetamine user with acknowledged mental health issues, awoke in a motel room. After he left the room, he believed that he spotted individuals following him. On two occasions, he asked law enforcement officers for help, but he was ultimately left on his own at a gas station. Believing an armed man was approaching the gas station and intended to hurt or kill him, defendant entered the victim's car which was parked at one of the fuel pumps with the keys in the ignition. After a struggle with the victim, defendant drove away in the car. California Highway Patrol (CHP) officers located the car within minutes. Defendant led CHP officers on a high-speed chase on the freeway for more than 45 minutes, traversing three counties, with speeds exceeding 100 miles per hour, before defendant hit the center median and the car came to a stop on the side of the road.
A jury found defendant guilty of carjacking and driving in a willful or wanton disregard for the safety of persons or property while fleeing or attempting to elude a police officer (felony evasion). The same jury then determined that defendant was not legally insane at the time of the charged offenses. In a bifurcated proceeding, the trial court found true prior serious felony conviction allegations and prior prison term enhancement allegations. The court then denied defendant's Romero motion and sentenced him as a "Three Strikes" offender to 27 years to life and an additional determinate term of 30 years.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
On appeal, defendant asserts that the admission of case-specific hearsay and testimonial hearsay through a mental health expert at the sanity phase violated state hearsay rules and his Sixth Amendment right to confront and cross-examine witnesses, and that, to the extent that the argument was forfeited, he received constitutionally ineffective assistance of counsel. He further asserts that the trial court abused its discretion in declining to strike prior convictions and prior prison term enhancement allegations and in imposing the upper term on count two. Defendant also asserts that the sentence imposed constitutes cruel and unusual punishment under the Eighth Amendment. And in supplemental briefing, defendant contends that any forfeiture of these sentencing issues resulted from ineffective assistance of counsel. Defendant also asserts that, following the enactment of Senate Bill No. 1393, the matter must be remanded to afford the trial court the opportunity to exercise its newly authorized discretion to strike the two five-year prior serious felony conviction enhancements imposed pursuant to Penal Code section 667, subdivision (a). In supplemental briefing, defendant asserts that, following the enactment of Senate Bill No. 136, we must strike all of the prior prison term enhancements.
Further undesignated statutory references are to the Penal Code applicable to the charged offenses.
We agree that, following the enactment of Senate Bill No. 1393, the matter must be remanded for the court to consider whether to exercise its discretion to strike the prior serious felony conviction enhancements. Additionally, we shall strike the prior prison term enhancements. Otherwise, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The Charges & Insanity Plea
The People charged defendant with carjacking (§ 215, subd. (a); count one), and felony evasion (Veh. Code, § 2800.2, subd. (a); count two). The People further alleged that defendant had two prior convictions of a serious and violent felony, specifically robbery (§ 211) and first degree burglary (§ 459), and thus was eligible for a Three Strikes life sentence pursuant to sections 667, subdivision (e)(2), and 1170.12, subdivision (c)(2). It was further alleged that defendant had served seven prior prison terms within the meaning of section 667.5, subdivision (b).
Defendant entered pleas of not guilty and not guilty by reason of insanity. The trial court appointed two experts to investigate defendant's mental status pursuant to section 1027. Later, the parties and the court agreed that one of the reports was inconclusive, and the court appointed two additional experts for the same purpose.
Guilt Phase - Evidence Presented by the Prosecution
On March 24, 2015, CHP officer Terrence Plumb was in the parking lot of an AM/PM gas station in Sacramento completing a traffic stop when defendant approached him. Defendant told Plumb that there were people following him. He said that one of the men was a black male wearing a camouflage jacket and defendant thought the man had a gun. Defendant asked Plumb for a ride to South Sacramento. Plumb told defendant he would look for the person and drove around the parking lot for several minutes, but he did not see anyone. After looking around, Plumb could not find defendant, so, assuming that defendant had gone on his way, Plumb left the area. Nothing about the exchange led Plumb to believe that defendant was a danger to himself or others.
We take judicial notice that March 24, 2015, was a Tuesday. (Evid. Code, §§ 452, subd. (h), 459 subd. (a)(2); Douglas v. Janis (1974) 43 Cal.App.3d 931, 936.)
The victim testified that, at approximately 1:45 p.m., she stopped at an AM/PM location to get gas and some cold drinks. She went inside to pay for gas, bought drinks, and returned to her car. She then placed the drinks in her car and pumped gas. As she replaced the fuel nozzle in the pump, defendant came around the back of the car and attempted to knock the victim off her feet. The victim grabbed defendant's sweatshirt. Defendant then "just started wailing [sic] on [her] telling [her] to get the F away from his car." He told her, " 'Get the fuck away from my car, bitch.' " The victim grabbed defendant and yelled for help. Defendant managed to get into the victim's car, but the victim continued to struggle with defendant as he attempted to start the car using the keys that the victim had left in the ignition. As the victim tried to pull defendant's hand away from the keys, defendant "just kept hitting" her arm and kicking her away. Defendant started the car and began to drive away, and the victim fell backwards and hit her head on the curb. She estimated that she was dragged eight to 10 feet before letting go. As a result, she sustained injuries, including injuries to her left knee and her right arm. She also had a bad headache that lasted several days. The prosecutor played for the jury a surveillance video recorded at the AM/PM station, which showed the incident.
Within minutes, the victim reported the incident to CHP. She gave CHP a description of her car, a Buick La Sabre, and the license plate number.
CHP Officer Gary Paul, on his motorcycle, was on Fulton Avenue at approximately 1:55 p.m. when he spotted the La Sabre stopped at a red light. Paul notified dispatch that he had located the vehicle. Paul followed the La Sabre, but, because there were no other units present yet, he did not activate his lights and siren. Defendant made several turns, causing Paul to believe that defendant knew law enforcement was behind him and "was just seeing if I was following him or just trying to get rid of me." Defendant stopped at a red light at Marconi Avenue and Bell Street, at which point CHP Officer Brenda Powers approached the area. When the light turned green, Powers activated her emergency lights, and Paul did the same. However, defendant did not pull over. The officers continued to follow defendant on Auburn Boulevard, where defendant rapidly accelerated, reaching at least 60 miles per hour in what Paul believed to be a 35-miles-per-hour zone. At Bell Street, defendant failed to stop for a stop sign, crossed a double yellow line, and "shot onto eastbound Business 80."
Powers testified that defendant drove at speeds in excess of 105 miles per hour. Powers testified that defendant drove at these speeds "for the better half -- I believe I was primary in the pursuit for about a half-hour or more, approximately 55 miles." Powers described defendant as making unsafe lane changes, passing other vehicles on the right, driving on the shoulder, and kicking up debris, some of which shattered Powers's windshield. At Douglas Boulevard, defendant exited, continued over the freeway, and got onto the freeway going westbound. Defendant used all three lanes "in extreme fashions at high speeds."
Plumb, the CHP officer who had encountered defendant at the AM/PM, participated in the pursuit for approximately 10 to 15 minutes, eventually taking the position of secondary officer. Plumb followed defendant "from roughly Greenback/Madison area westbound into and around the City of Davis." Defendant used all the traffic lanes on the freeway and both the right shoulder and the center divider. Defendant drove at "[j]ust over a hundred miles an hour." At the time, the traffic level was moderate. "[T]here were multiple vehicles on the roadway that necessitated the suspect to veer around and use all lanes." Near Davis, Plumb dropped out of the pursuit and was replaced by other officers. Near the Richards Boulevard exit in Davis, Powers handed off the primary pursuit of defendant to a Woodland CHP officer.
A video recorded with Powers's vehicle camera, recording the portion of the pursuit in which she participated, was played for the jury.
CHP Officer Joel Merrill, posted in Woodland, joined the pursuit and, around Mace Boulevard, became lead pursuer. Merrill testified that defendant was driving between 85 to "a hundred-plus" miles per hour. He was using all of the lanes on the freeway, including the center divider and the shoulder. He was making erratic lane changes and cutting off other vehicles. At one point, the vehicle defendant was driving kicked up a large bolt that shattered Merrill's windshield. Merrill remained the primary pursuer from Mace Boulevard "all the way into Solano County, down to Pedrick Road. We turned around at Pedrick and continued back eastbound on I-80 until about -- I was just past Richards Boulevard when my pursuit ended." When defendant left the freeway to reverse direction, he ran another stop sign at the end of the off-ramp. CHP Officer Kitamura took over for Merrill as primary pursuer.
The parties stipulated that Kitamura participated in the pursuit, and that People's exhibit 3, a video recording, was a fair and accurate depiction of Kitamura's involvement in the pursuit. Recordings of both Merrill's and Kitamura's portions of the pursuit were played for the jury.
At approximately 2:40 p.m., 45 minutes after Paul spotted the La Sabre, CHP Officer Chad Wood joined the pursuit at the 11th Street on-ramp to eastbound Highway 50 in Sacramento. At some point, Wood became the primary pursuit vehicle. Wood described defendant as driving erratically, using multiple lanes, and traveling at speeds in excess of 90 miles per hour. As the pursuit approached the 65th Street exit on Highway 50, defendant lost control of the La Sabre, which then rotated counterclockwise and collided with the center median wall. The vehicle then continued backwards, crossing all lanes of traffic and traveling down an embankment at the 65th Street off-ramp. Ultimately defendant was apprehended.
The prosecution played a video recorded by Wood's in-vehicle camera, depicting his portion of the pursuit.
A deputy sheriff brought the victim to the location for a showup. She identified defendant as the person who took her car.
Guilt Phase - Evidence Presented by the Defense
Defendant testified that, in the days before March 24, 2015, he had been in a psychiatric hospital because he was suicidal. He was held in the hospital for 72 hours and then discharged. Defendant testified that he took psychiatric medication.
On March 24, 2015, defendant woke up at a motel near Watt Avenue when a hotel maid knocked on the door. Defendant went onto the hotel balcony and smoked a cigarette. While on the balcony, defendant noticed some people in the hallway on the floor below staring at him. Defendant went into his hotel room and retrieved his belongings. When he went back out onto the balcony, defendant saw that one man was gone, but there were other men who kept looking at him.
Defendant went to the back of the motel and to the parking lot. He saw two men whom he had seen earlier getting into a truck. The men continued to look at defendant. Defendant was frightened because the men appeared to be following him. He hurried across the street to a building where he told some people that the people in the truck were following him. Defendant called 911 and had one of the people nearby talk to the dispatcher. Two sheriff's deputies arrived. Defendant told one of the deputies that he was being followed by two men in a truck. The deputy asked defendant what he wanted, and defendant replied: " 'I want you to get me out of here.' " Defendant asked for a ride, and the deputies gave defendant a ride to an AM/PM gas station. There, the deputies had another call. One of the deputies told defendant to get out of the car and directed him to a bus stop.
Defendant went to the bus stop and stayed there for a few minutes. Then he saw a man in a camouflage jacket approaching him, and the man was pulling out a gun. Defendant was scared and he ran across the street to the AM/PM, where he saw a CHP officer. Defendant approached Officer Plumb and told him about the man in the camouflage jacket who was pulling out a gun. Defendant asked Plumb for a ride. Plumb declined, but said he would "check it out." Defendant watched as Plumb drove away.
Defendant approached someone else and asked for a ride, but the person refused. Defendant then looked across the street and saw the two men from the truck coming in his direction. They had gotten out of the truck and were walking across the street towards him. Defendant was scared and did not know what to do. He thought that the men were going to kill him. He panicked. He was going to run into the store, but there was a man standing in front of the store.
Defendant looked around and saw a car with its door open and a woman pumping gas. He thought that, if law enforcement officers were not going to help him, and no one else was going to help him, he had to get away from the men however he could. Defendant went around the victim. He claimed he did not touch her. Defendant got into the car and sat there for a minute. After he got in, he saw that the keys were in the car. The victim reached into the car. Defendant testified that, at one point, the victim "stepped back and a guy came in." "[A] dude pushed her out of the way." As other people began approaching, defendant started the car. He thought, "here they come," and he drove off.
He did not know where he was going, he was just trying to get away and get someplace safe. He knew that police officers were following him, and he had the opportunity to pull over, but he did not. He no longer trusted the police because they did not help him.
Guilt Phase - Verdict
The jury found defendant guilty of carjacking (§ 215, subd. (a); count one) and felony evasion (Veh. Code, § 2800.2, subd. (a); count two). The trial proceeded to the sanity phase.
Sanity Phase - Evidence Presented by the Defense
The only evidence the defense presented at the sanity phase was defendant's testimony. Defendant testified he was 50 years old. He described his history of drug abuse, as well as his history of mental health treatment. According to defendant, he was approximately 45 or 46 years old the first time he was hospitalized for a mental health issue. He testified that he had been using methamphetamine for 34 years. In 2011, he "ran into some bad drugs." He also testified that he had "full-blown AIDS," for which he took medication.
Defendant testified that he had been to psychiatric hospitals before, and that, prior to the events at issue here, he went to a mental health facility, SCMHC. He stayed there for a few days and then went to CARES to have his medications refilled.
After his stays at SCMHC and CARES, defendant spent the night at a hotel. He testified that he did not ingest any methamphetamine between the time he was at SCMHC and the events at issue here.
Regarding taking the victim's car and leading police on an extended high-speed chase, defendant testified consistently with his testimony at the guilt phase.
Sanity Phase - Evidence Presented by the Prosecution
Heber Ramos, a deputy sheriff for the Sacramento County Sheriff's Department, spoke with defendant at the hospital after he was apprehended. Ramos testified that defendant was able to carry on a normal conversation, he maintained his train of thought, and he was coherent and on-topic. Ramos did not find defendant to be rambling or nonsensical.
Defendant did not say anything about sheriff's deputies dropping him off at AM/PM. Instead, defendant told Ramos that he had gone to AM/PM to buy something to drink. Defendant did tell Ramos that people were following him and that a man wearing camouflage had a gun in his waistband. Defendant told Ramos that he spoke with a CHP officer in the parking lot.
Defendant told Ramos that he saw the victim leave her vehicle and go inside the store, and that he saw that she left the keys in the ignition. Defendant said that he took the vehicle because he was trying to get away from two men. He knew it was not his vehicle. He told Ramos he never wanted to hurt the victim and he was not trying to hurt anyone.
Dr. Luigi Cardella testified as an expert in forensic psychiatry. He had been appointed by the court to perform an evaluation of defendant. In preparing his evaluation, Cardella spoke with defendant and reviewed defendant's arrest report and records from the Sacramento County jail, including mental health records, medical records, and jail reports. Additionally, Cardella had defendant perform cognitive tests.
Cardella diagnosed defendant with methamphetamine intoxication and "mild methamphetamine use disorder with methamphetamine-induced psychosis with onset during intoxication" at the time of the offenses. Describing the second of these two diagnoses, Cardella testified: "the beginning part is mild methamphetamine use disorder. Based on the Diagnostic and Statistical Manual, the DSM, [defendant] met criteria for having a mild severity of methamphetamine use. He had, at the time of the alleged offense, a methamphetamine-induced psychosis, which means -- psychosis means a break -- essentially, it's a break from reality; in his particular case, having paranoia, as an example. And that was caused by the methamphetamine. [¶] And then with onset during intoxication . . . is because the symptoms of psychosis occurred during intoxication, not during a period of withdrawal from the drug."
Section 29.8 provides in pertinent part: "In any criminal proceeding in which a plea of not guilty by reason of insanity is entered, this defense shall not be found by the trier of fact solely on the basis of . . . an addiction to, or abuse of, intoxicating substances." This provision "erects an absolute bar prohibiting use of one's voluntary ingestion of intoxicants as the sole basis for an insanity defense, regardless whether the substances caused organic damage or a settled mental defect or disorder which persists after the immediate effects of the intoxicant have worn off." (People v. Robinson (1999) 72 Cal.App.4th 421, 427 [discussing former section 25.5 before it was renumbered 29.8].)
Cardella discussed the factual bases which informed his diagnoses of defendant. Cardella testified: "There are a few bits of evidence, the first being that shortly after his arrest, he was taken to the emergency department, where his urine drug screen showed methamphetamine in his system, and he was such diagnosed with methamphetamine intoxication. [¶] The second pieces of information include [defendant's] own statements, of which he made three, to three separate providers in the jail, indicating that he used methamphetamine [prior ]to this offense, and the third being his vital signs. His blood pressure was highly elevated. His heart rate was elevated. He was sweating profusely. He was having other signs and symptoms of methamphetamine intoxication." Cardella acknowledged that defendant had a history of high blood pressure. However, he further testified, "I did consider that as well. In addition to having high blood pressure, his heart rate was elevated, which is not always part of having high blood pressure. In addition, he was sweating profusely and was behaving quite differently than he was at the time of his arrest." Cardella testified that it was a combination of all three of these factors that helped form his opinion. He clarified on cross-examination, when asked again about defendant's history of high blood pressure: "So I did consider that. The answer to that is, when you look at everything together, it points toward methamphetamine intoxication. So if you look at his high blood pressure along with his elevated heart rate, along with his profuse sweating, along with his agitation, along with his paranoia, all these things together indicate methamphetamine intoxication, not simply just high blood pressure."
Cardella acknowledged relying on notes from the jail clinical staff. Cardella specifically testified that, based on jail clinic notes, defendant apparently told a social worker, Ms. Young, that "he was in the high-speed chase because he was, quote, tripping on meth, end quote." Cardella acknowledged that this note was important to his evaluation. Cardella also acknowledged, on cross-examination, that defendant told him that he did not use methamphetamine immediately prior to the events at issue here. However, he testified that, based on the urine screening performed on the day of the incidents, he believed that defendant "was holding back." Cardella testified that methamphetamine typically may be detected in urine for three to five days after use.
Cardella used the term " 'quick onset of paranoia' " in his evaluation. He testified: "in [defendant's] case, he awoke the morning of the alleged offense and then had -- developed paranoia that morning. Such a quick onset is not very typical of a schizophrenia or a primary psychotic illness. Typically, those are a little bit more drawn out. They occur gradually. They don't just kind of start." Cardella testified that quick-onset paranoia would be more typical of "a methamphetamine-induced psychotic disorder or other substance-induced psychotic disorder."
Cardella did not find that defendant had any other established mental disease or defect at the time of the charged offenses, although he did consider the fact that defendant in the past had been diagnosed with a major depressive disorder. Cardella testified that defendant's depressive disorder "would not have played a role in his psychosis at the time of the offense." He explained: "the reason that [defendant] cited for why he took the car and then evaded police was psychotic reasoning. It wasn't depressive reasoning. So although it was my opinion he did not have a major depressive disorder at the time of the instant offense, even if he had, it would not have played a role."
Cardella testified that, when he spoke with defendant, defendant reported having hallucinations. However, Cardella "had concerns, mostly because when I asked him to describe them, he gave vague answers. And so he answered, 'I don't know,' to a lot of my questions asking about how often they occur, how long do they last when they happen. He responded, 'I don't know,' and that's concerning from a psychiatrist's perspective." Explaining why he found this "concerning," Cardella testified: "[f]eigning is one of the indications . . . for . . . malingering, which is just trying to deceive. And so vagueness is one of those. Vagueness is one of those concerns. When somebody's being vague, it may suggest that they're trying to deceive."
Cardella testified that defendant told him that he had ingested some "bad meth" in 2011. He also testified that defendant told him that he began to hallucinate or hear voices in 2011 after he ingested some bad methamphetamine, and that those symptoms "occurred occasionally since then."
Cardella opined that defendant was able to understand the nature and quality of his acts at the time of the offenses. Defendant told Cardella that he knew the victim's car was not his. Thus, defendant knew he was taking a car that was not his. Cardella further opined, based on defendant's driving the car for more than 40 minutes at high speeds, that defendant "understood that he was driving a vehicle and knew that he was avoiding police, because they had their lights on. He acknowledged . . . that he knew they were behind him."
Cardella described defendant's motives for evading police as nonpsychotic and rational. Cardella testified that defendant "may have had another reason that doesn't involve mental illness for why he chose -- for why he evaded police, why he ran from police." That motive, according to Cardella, was to avoid getting caught. When asked whether defendant offered a "more psychotic reason" for attempting to evade police, Cardella responded that defendant told him that he "lost trust in the police but at no point offered a psychotic reason as to why he ran from the police."
Cardella opined that defendant was able to distinguish right from wrong. For this opinion, he relied on the fact that defendant made comments, both to police and to Cardella, indicating that he did not want to hurt anyone. Defendant also told Cardella that he knew stealing a car and evading police were crimes. Cardella also relied on the facts that defendant sought police assistance on two occasions, and was cooperative when he was apprehended, both of which indicated that defendant was not paranoid about the police.
Thus, Cardella opined that defendant did not have a qualifying mental disease or defect at the time of the charged offenses and further opined that defendant understood the nature and quality of his acts and the legal and moral wrongs of his acts. Defendant was not legally insane at the time of the offenses.
Cardella reiterated on cross-examination his opinion concerning defendant's beliefs that unidentified men were attempting to hurt or kill him as follows: "So, by definition, paranoia is psychosis that is not rational. However, I would like to add again that in this particular case, as regards to his sanity at the time, it is my opinion that his psychosis was from methamphetamine use." On redirect, he testified that the mere fact that someone experienced some sort of psychosis, whether drug-induced or otherwise, does not necessarily mean that the person cannot understand the nature and quality of the person's acts or that the person cannot understand the moral or legal wrongfulness of the person's actions.
Sanity Phase - Verdict
The jury found that defendant was not legally insane when he committed the crimes charged.
Sentencing
Defendant waived jury trial on his prior convictions. The trial court found all prior conviction allegations to be true. The trial court sentenced defendant to 27 years to life and an additional 30 years determinate, calculated as follows: an indeterminate term of 27 years to life on count one, carjacking (§ 215, subd. (a)), with the minimum term of the indeterminate sentence consisting of three times the upper term (nine years) for that offense (§ 667, subd. (e)(2)(A)(i)); an additional determinate upper term of three years (§ 1170, subd. (h)(1)) on count two, felony evasion (Veh. Code, § 2800.2, subd. (a)), doubled pursuant to section 667, subdivision (e)(1); five years for each of defendant's two prior serious felony convictions (§ 667, subd. (a)); and seven consecutive one-year terms for each prior prison term pursuant to section 667.5, subdivision (b), imposed on both the indeterminate term and the determinate term.
DISCUSSION
I. Expert Testimony - Hearsay and Confrontation Clause Contention
A. Defendant's Contentions
Defendant asserts that Cardella's testimony at the sanity phase included extensive hearsay testimony regarding the bases for his opinion, including defendant's out-of-court statements, jail reports, medical records, and police reports. Defendant asserts that, under People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez), this testimony constituted inadmissible case-specific hearsay and, as to some of the testimony, that it constituted testimonial hearsay, the admission of which violated his Sixth Amendment right to confront and cross-examine witnesses.
The evidence identified by defendant includes: (1) the urine drug screening performed at the emergency room following defendant's arrest; (2) three statements defendant allegedly made to "providers" at the jail indicating his recent use of methamphetamine; (3) Cardella's testimony concerning defendant's vital signs; and (4) statements defendant made to police following his arrest which caused Cardella to conclude that defendant understood the nature and quality of his acts and could distinguish right from wrong. Defendant asserts that almost all of this hearsay evidence was testimonial, as it was "prepared specifically as part of the investigation against [defendant], and was intended to be produced at his trial."
B. Case-Specific Hearsay and Testimonial Hearsay
" 'Hearsay evidence' is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated." (Evid. Code, § 1200, subd. (a).) "Except as provided by law, hearsay evidence is inadmissible." (Evid. Code, § 1200, subd. (b).)
In Crawford v. Washington (2004) 541 U.S. 36 (Crawford), the United States Supreme Court held that the admission of testimonial statements of a witness not appearing at trial violates a defendant's confrontation rights unless the witness is unavailable to testify and the defendant had a prior opportunity for cross-examination. (Id. at pp. 53-54.) However, the confrontation clause "does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted." (Id. at p. 59, fn. 9.)
The United States Supreme Court has not provided a clear definition of "testimonial." (People v. Leon (2015) 61 Cal.4th 569, 603.) However, our high court has "discerned two requirements. First, 'the out-of-court statement must have been made with some degree of formality or solemnity.' [Citation.] Second, the primary purpose of the statement must 'pertain[] in some fashion to a criminal prosecution.' " (Ibid.; accord, People v. Dungo (2012) 55 Cal.4th 608, 619 [referring to the formality and primary purpose criteria as "critical components" instead of "requirements"].) "When the People offer statements about a completed crime, made to an investigating officer by a nontestifying witness, Crawford teaches those hearsay statements are generally testimonial unless they are made in the context of an ongoing emergency . . . , or for some primary purpose other than preserving facts for use at trial." (Sanchez, supra, 63 Cal.4th at pp. 694-695.) Formal police reports may be made with the requisite degree of formality or solemnity. (Ibid.)
In Sanchez, the California Supreme Court addressed the admissibility of gang expert opinion "basis" testimony—evidence described by the expert as a basis for the expert's opinion. Our high court "adopt[ed] the following rule: When any expert relates to the jury case-specific out-of-court statements, and treats the content of those statements as true and accurate to support the expert's opinion, the statements are hearsay. . . . If the case is one in which a prosecution expert seeks to relate testimonial hearsay, there is a confrontation clause violation unless (1) there is a showing of unavailability and (2) the defendant had a prior opportunity for cross-examination, or forfeited that right by wrongdoing." (Sanchez, supra, 63 Cal.4th at p. 686, fn. omitted.)
According to our high court, its opinion in Sanchez "restore[d] the traditional distinction between an expert's testimony regarding background information and case-specific facts." (Sanchez, supra, 63 Cal.4th at p. 685.) The crucial distinction is between an expert's testimony concerning his or her general knowledge which is not subject to exclusion on hearsay grounds on one hand, and, on the other, what it denominated "case-specific facts about which the expert has no independent knowledge." (Id. at p. 676.) "Case-specific facts are those relating to the particular events and participants alleged to have been involved in the case being tried." (Ibid.)
The Sanchez court identified a two-step inquiry to address expert witness basis testimony consisting of case-specific facts in criminal cases. "The first step is a traditional hearsay inquiry: Is the statement one made out of court; is it offered to prove the truth of the facts it asserts; and does it fall under a hearsay exception? If a hearsay statement is being offered by the prosecution in a criminal case, and the Crawford limitations of unavailability, as well as cross-examination or forfeiture, are not satisfied, a second analytical step is required. Admission of such a statement violates the right to confrontation if the statement is testimonial hearsay, as the high court defines that term." (Sanchez, supra, 63 Cal.4th at p. 680.)
C. Forfeiture
Sanchez was filed on June 30, 2016, five days before the sanity phase of defendant's trial commenced on July 5, 2016. Neither defendant nor the prosecutor nor the trial court cited or referred to this landmark decision.
Defense counsel objected to hearsay introduced through an expert on traditional hearsay grounds. Specifically, defense counsel stated: "[I]n regard to the expert's testimony, although he's able to rely on hearsay, I'm going to object to any recitation of it, including records, unless they are made part of the record and there's some exception. [¶] I mean, they may rely on hearsay, but they aren't necessarily going to relate it."
The court and the prosecutor noted that some such matter may constitute the admission of a party. Additionally, the prosecutor stated that the material could come in for some purpose other than the truth of the matter asserted, and further that "it can certainly come in for the jury to be able to evaluate the basis of the expert's opinion."
Evidence Code section 1220 provides: "Evidence of a statement is not made inadmissible by the hearsay rule when offered against the declarant in an action to which he is a party in either his individual or representative capacity, regardless of whether the statement was made in his individual or representative capacity."
Defense counsel specifically objected, on hearsay grounds, to Cardella's testimony that, according to jail clinic notes, defendant told a social worker that "he was in the high-speed chase because he was, quote, tripping on meth, end quote." The trial court overruled the objection on the grounds that the testimony constituted the "[a]dmission of a party opponent." Later, the court "expand[ed]" on its ruling, stating that this information was not offered for the truth of the matter asserted. Rather, it was offered "as part of the basis that Dr. Cardella reached the conclusions he reached. [¶] So it's -- whether or not he was tripping on meth is not the specific point that Dr. Cardella was testifying about. He was testifying as to why he concluded what he concluded having to do with meth, Dr. Cardella's conclusions." (Italics added.) This is precisely the sort of case-specific expert opinion "basis" testimony that was reined in by Sanchez. (See Sanchez, supra, 63 Cal.4th at p. 686 ["When any expert relates to the jury case-specific out-of-court statements, and treats the content of those statements as true and accurate to support the expert's opinion, the statements are hearsay. It cannot logically be maintained that the statements are not being admitted for their truth"].)
We deem defendant's objections sufficient to put the trial court on notice of defendant's objections to Cardella's "basis" testimony on hearsay grounds. For an objection to sufficiently preserve an issue for appellate review, " '[t]he objection must be made in such a way as to alert the trial court to the nature of the anticipated evidence and the basis on which exclusion is sought, and to afford the [party opponent] an opportunity to establish its admissibility.' " (People v. Hayes (1999) 21 Cal.4th 1211, 1261, quoting People v. Williams (1988) 44 Cal.3d 883, 906; see also Evid. Code, § 353.)
Defendant, however, did not raise a confrontation clause argument, the possibility that any of Cardella's testimony constituted testimonial hearsay, or Sanchez. Generally, the failure to raise an objection based on the confrontation clause forfeits the argument on appeal. (People v. Redd (2010) 48 Cal.4th 691, 730). An objection on hearsay grounds does not necessarily preserve a confrontation clause claim for appellate review. (See People v. Rangel (2016) 62 Cal.4th 1192, 1216-1217 ["A Crawford objection generally requires a court to consider whether statements are testimonial, and, if so, whether a witness was unavailable and the defendant had a prior opportunity for cross-examination. This invokes different legal standards than, for example, a hearsay objection, which generally requires a court to consider whether the foundational requirements for admission of particular hearsay have been satisfied."].)
Thus, while we conclude that defendant succeeded in preserving his hearsay objections for appellate review, and will review those contentions on the merits, we conclude that he has forfeited his claims under the confrontation clause.
We will address defendant's confrontation clause claims in part I.F. of the Discussion, post, as defendant asserts that the failure to preserve the argument constituted the ineffective assistance of counsel.
D. Case-specific Hearsay
1. Testimony Concerning Defendant's Urine Screening
Cardella's testimony about defendant's urine screening was pertinent to his opinion that defendant suffered a drug-induced psychosis; such a psychosis does not qualify for a finding of legal insanity. (See fn. 7, ante.) Cardella testified that, "shortly after [defendant's] arrest, he was taken to the emergency department, where his urine drug screen showed methamphetamine in his system, and he was such diagnosed with methamphetamine intoxication." The People concede that Cardella conveyed case-specific hearsay in relaying this information, and that this information was not independently established by other evidence.
We agree with the parties that, in relaying the results of defendant's urine screening, Cardella relayed case-specific hearsay. The evidence was proffered, among other reasons, to prove that defendant's urine screening showed that he had methamphetamine in his system, contributing to Cardella's diagnosis of defendant. Thus, this testimony constituted hearsay—an out-of-court statement offered for the truth of the matter asserted. (Evid. Code, § 1200.) It was also case-specific, as it related to defendant, a participant in this case. (Sanchez, supra, 63 Cal.4th at p. 676.) The prosecution did not establish its admissibility under an exception to the hearsay rule or otherwise. As stated ante, Sanchez, decided the week before the sanity phase of the trial, rejected the rationale, previously accepted in California case law, that such evidence is admissible to prove the basis for the expert's opinion. (See id. at p. 686.) Thus, we conclude that the trial court erred in admitting this testimony.
2. Statements Defendant Made to Jail "Providers"
Cardella acknowledged relying on notes from the jail clinical staff. Cardella specifically testified that, according to jail clinic notes, defendant told a social worker that "he was in the high-speed chase because he was, quote, tripping on meth, end quote." Cardella acknowledged that this note was "important" to his evaluation. The evidence was pertinent to Cardella's opinion that defendant suffered a drug-induced psychosis. The People concede that Cardella conveyed case-specific hearsay in relaying defendant's statement to a social worker that he had been using methamphetamine.
The social worker's statement was an out-of-court statement offered for the truth of the matter asserted, that defendant was "tripping on meth" when he committed carjacking and then led police on a lengthy high-speed chase. (Evid. Code, § 1200.) As properly conceded by the People, this statement was not otherwise established in the record. And the prosecution failed to establish application of a hearsay exception. Thus, based on Sanchez, the trial court erred in admitting this testimony.
3. Testimony About Defendant's Vital Signs
Cardella testified that a third basis for his opinion in diagnosing defendant was defendant's "vital signs. His blood pressure was highly elevated. His heart rate was elevated. He was sweating profusely. He was having other signs and symptoms of methamphetamine intoxication." As defendant asserts, Cardella did not indicate the source for this information. However, he did generally state that, in performing his evaluation, he considered "records . . . from the Sacramento County Jail, which included mental health records, regular medical records, his jail reports." Again, this evidence was pertinent to Cardella's opinion that defendant suffered a drug-induced psychosis.
The People again concede that the admission of this testimony constituted error, and again, we agree. The evidence of defendant's vital signs constituted out-of-court statements offered for the truth of the matter asserted. (Evid. Code, § 1200.) The prosecution did not establish that this evidence was admissible under an exception to the hearsay rule. No medical records or other independent evidence of defendant's vital signs was introduced. Thus, the trial court erred in admitting this testimony.
4. Post-arrest Statements Defendant Made to Law Enforcement
Defendant asserts that Cardella based his conclusions, in part, on statements defendant made to law enforcement following his arrest. Defendant fails to identify with specificity the statements to which he is referring. On the pages of the reporter's transcript cited by defendant in his appellate briefing, Cardella testified: "[Defendant] told me that he knew the car wasn't his. That's also been documented in police reports as well." Defendant's statement to Cardella is an out-of-court statement offered for the truth of the matter asserted, but the statement constitutes a party admission. (Evid. Code, § 1220, see fn. 8, ante.) However, Cardella's testimony that defendant stated, as "documented in police reports," that he knew the car was not his constitutes multiple-layer hearsay. "[M]ultiple hearsay is admissible for its truth only if each hearsay layer separately meets the requirements of a hearsay exception." (People v. Arias (1996) 13 Cal.4th 92, 149; Evid. Code, § 1201; accord, Sanchez, supra, 63 Cal.4th at p. 675.) There is no showing that each layer of Cardella's testimony regarding defendant's statement "as documented in police reports" meets the requirements of a hearsay exception. Thus, allowing Cardella to mention the statements reflected in police reports was error.
Cardella also testified that defendant "made several comments, both to police and to myself, that his intention was not to hurt others." Cardella's testimony about defendant's comments to him were admissible as a party admission. (Evid. Code, § 1220.) However, again, his testimony concerning defendant's comments to law enforcement constituted inadmissible multiple hearsay to the extent that Cardella's reference was to reports and not testimony the jury heard.
Cardella testified that, both during his interview with defendant and according to records at the time of his arrest, defendant did not say anything to indicate that he believed that the police were among the people trying to "get" him. Once again, Cardella's testimony concerning any statement defendant made to him on the subject was admissible as a party admission. (Evid. Code, § 1220.) And the fact that defendant made no such statements is not hearsay, and thus was not inadmissible. (Evid. Code, § 225 [statements, which are the subject of the hearsay rule, are defined as "(a) oral or written verbal expression or (b) nonverbal conduct of a person intended by him as a substitute for oral or written verbal expression"].)
5. Conclusion - Case-Specific Hearsay
Because we conclude that the trial court erred in admitting the foregoing case-specific hearsay, we proceed to consider whether the error prejudiced defendant.
E. Prejudice
1. Standard of Review
The erroneous admission of hearsay evidence under state law is reviewed for prejudice under the standard articulated in People v. Watson (1956) 46 Cal.2d 818, 836 (Watson). (People v. Duarte (2000) 24 Cal.4th 603, 618-619.) Under that standard, reversal is not warranted unless "it is reasonably probable that a result more favorable to [defendant] would have been reached in the absence of the error[s]." (Watson, at p. 836.) "[T]he Watson test for harmless error 'focuses not on what a reasonable jury could do, but what such a jury is likely to have done in the absence of the error under consideration. In making that evaluation, an appellate court may consider, among other things, whether the evidence supporting the existing judgment is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, that there is no reasonable probability the error of which the defendant complains affected the result.' " (People v. Beltran (2013) 56 Cal.4th 935, 956.) Here, we must consider whether it is reasonably probable that the jury would have determined that defendant was insane at the time he committed the underlying offenses in the absence of the hearsay portions of Cardella's testimony: that defendant's urine drug screening indicated that he had methamphetamine in his system; that defendant told jail "providers" that he was on methamphetamine at the time of the offenses; concerning defendant's vital signs; and that defendant told law enforcement upon his arrest that he knew the car he took was not his, that he did not intend to hurt anyone, and that he did not indicate he believed police were among the people out to get him.
2. Defendant's Burden at the Sanity Phase
To establish legal insanity, the burden is on the defendant to prove " 'by a preponderance of the evidence that he or she was incapable of knowing or understanding the nature and quality of his or her act and of distinguishing right from wrong at the time of the commission of the offense.' " (People v. K.P. (2018) 30 Cal.App.5th 331, 337-338, citing § 25, subd. (b); see People v. Powell (2018) 5 Cal.5th 921, 955 (Powell), discussing M'Naghten's Case (1843) 8 Eng.Rep. 718, 722; see also CALCRIM No. 3450 ["The defendant must prove that it is more likely than not that (he/she) was legally insane when (he/she) committed the crime[s]"].) Our Supreme Court has interpreted the statutory language of section 25, subdivision (b), "to mean that insanity can be shown under either the 'nature and quality' or the 'right from wrong' prong of the test." (K.P., at p. 338, citing Powell, supra, 5 Cal.5th 921 & People v. Skinner (1985) 39 Cal.3d 765, 775-777.) "A defendant 'may suffer from a diagnosable mental illness without being legally insane under the M'Naghten standard.' " (Powell, at p. 955.)
We are relying solely on the evidence actually presented at the sanity phase of defendant's trial. It is common practice for parties to stipulate that evidence presented at the guilt phase may be considered at the sanity phase. (E.g., People v. McCarrick (2016) 6 Cal.App.5th 227, 235.) The parties proceeded as if they had agreed that the guilt phase evidence could be considered at the sanity phase. However, no stipulation to this effect appears in the record. In any event, considering evidence presented at the guilt phase would not change our determination.
At the sanity phase, the only evidence presented by defendant was his own testimony. Defendant did not present the testimony of an expert. Nor did he present any evidence that he suffered from a specific mental disease or defect. Having declined to present any such evidence, the jury had only defendant's own testimony as support for his position that he was insane at the time of the underlying offenses.
Defendant testified that he had a history of mental health treatment and that he had been hospitalized for a mental health issue. He testified about his years of methamphetamine use and that, in 2011, he "ran into some bad drugs." He testified that he did not ingest any methamphetamine in the time immediately prior to the events here. He told the jury about his beliefs that men were after him, and that he took the car to get away from them. He claimed he did not think he was in trouble for taking the victim's car.
For the prosecution, Ramos testified that, when he spoke with defendant at the hospital, defendant was able to carry on a normal conversation and he was coherent and on-topic. Among other things, defendant said that he took the victim's vehicle because he was trying to get away from two men. He knew it was not his vehicle. He told Ramos he never wanted to hurt the victim and he was not trying to hurt anyone.
Based on Cardella's evaluation, he concluded that, at the time of the alleged offense, defendant "did not have a qualifying psychiatric illness." He diagnosed defendant with methamphetamine intoxication and "mild methamphetamine use disorder with methamphetamine-induced psychosis with onset during intoxication." Relying in part on the statements defendant made to him, Cardella described what he concluded to be defendant's quick-onset paranoia illustrated by defendant waking up and developing paranoia that morning. He testified that quick-onset paranoia was not typical of schizophrenia or a primary psychotic illness, but rather would be more typical of "a methamphetamine-induced psychotic disorder or other substance-induced psychotic disorder." Cardella did not find that defendant had any other established mental disease or defect at the time of the charged offenses. He considered the fact that defendant in the past had been diagnosed with a major depressive disorder, but explained that a depressive disorder would not have played a role in the underlying offenses because defendant's reasoning was psychotic, not depressive. Cardella also expressed skepticism concerning the hallucinations defendant reported. Defendant told Cardella that he knew the victim's car was not his. Thus, defendant knew he was taking a car that was not his. Cardella also testified that defendant told him that he did not intend to hurt anyone. Cardella further opined, based on defendant's acts in driving the car for more than 40 minutes at high speeds, that defendant "understood that he was driving a vehicle and knew that he was avoiding police, because they had their lights on. He acknowledged . . . that he knew they were behind him." Cardella concluded that defendant was able to understand the nature and quality of his acts and that defendant was able to distinguish right from wrong.
We conclude that it is not reasonably probable that the jury would have found defendant to have been insane at the time of the offenses in the absence of the hearsay testimony. (Watson, supra, 46 Cal.2d at p. 836.) Defendant bore the burden of proving that he was insane at the time he committed the charged offenses. (Powell, supra, 5 Cal.5th at p. 955.) The only evidence he presented was his own testimony describing his background and his perceived reasons for his actions. He presented no testimony or evidence that he even suffered from a qualifying mental disease or defect. The jury had to conclude defendant failed to carry his burden in the first instance, even without considering the prosecution's case.
Cardella's testimony concerning the urine screening, defendant's statements to jail "providers" that he was on methamphetamine at the time of he committed the offenses, his testimony about defendant's vital signs, and his testimony about statements defendant made to law enforcement may have bolstered the prosecution's case by showing that the mental disorder he suffered was drug induced, and thus did not qualify for an insanity finding. However, based on defendant's anemic attempt to meet his burden of proof and the prosecution's strong showing in its case based on Cardella's testimony that defendant did not suffer from a qualifying mental disease or defect and Cardella's and Ramos's testimony concerning statements defendant made directly to them, it is not reasonably probable that the jury would have reached a different result if the jury did not hear the hearsay testimony. Contrary to defendant's implication, it cannot be maintained that, absent the objectionable testimony, Cardella's remaining testimony concerning the bases for his opinion was conclusory and therefore of no assistance to the jury. (See generally Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108, 1117 ["when an expert's opinion is purely conclusory because unaccompanied by a reasoned explanation connecting the factual predicates to the ultimate conclusion, that opinion has no evidentiary value because an 'expert opinion is worth no more than the reasons upon which it rests' "].) Indeed, Cardella was entitled to rely on those matters that are the subject of the hearsay testimony. He simply should not have been permitted to describe these matters to the jury as he did, without satisfying applicable hearsay rules. (Sanchez, supra, 63 Cal.4th at pp. 685-686 [an "expert may still rely on hearsay in forming an opinion, and may tell the jury in general terms that he did so," but may not "present[], as fact, case-specific hearsay that does not otherwise fall under a statutory exception"].)
Moreover, Cardella offered his psychological analysis based on the facts and circumstances of defendant and his commission of the charged crimes as shown by admissible evidence. As we have noted, several of defendant's hearsay statements to law enforcement about which Cardella testified were matters that were validly admitted as admissions through the testimony of Deputy Ramos and statements defendant made directly to Cardella. For example, Cardella opined that defendant understood the nature of his actions in part because of the statement defendant personally made to him and Ramos that he knew the car did not belong to him. Cardella further based his opinion as to whether defendant knew the nature of his actions on how defendant operated the vehicle during the 45-minute evasion and pursuit, the fact defendant never provided a psychotic reason for evading the police, and the fact that before the carjacking and chase, defendant asked the police for help. Cardella also relied on the fact that, after he was apprehended, defendant cooperated with the police, which was established by Ramos's description of his interaction with defendant. As for defendant's capacity to know right from wrong, Cardella based his opinion on the fact that defendant told him he knew stealing a car was a crime, that evading the police was a crime and that he purportedly did not intend to hurt anyone. Defendant's statement that he did not want to hurt anyone was properly before the jury in the form of Ramos's testimony.
Based on defendant's own failure to satisfy his burden of proof, and based on Cardella's opinion as to defendant's sanity, which could have been before the jury without the hearsay testimony and which was supported by admissible evidence, we conclude it was not reasonably probable the jury would have found defendant insane had it not heard the inadmissible hearsay. Thus, defendant was not prejudiced.
F. Confrontation Clause Claim - Ineffective Assistance of Counsel
Defendant's contentions concerning testimonial hearsay and the violation of his right to confront and cross-examine witnesses were not preserved for appellate review. Defendant asserts that his defense attorney failed to provide the constitutionally effective assistance of counsel. He argues there could be no satisfactory tactical reason for counsel's failure to make the appropriate objections.
To prevail on a claim of ineffective assistance of counsel, a defendant must show (1) counsel's performance fell below an objective standard of reasonableness under prevailing professional norms, and (2) the deficient performance prejudiced defendant. (Strickland v. Washington (1984) 466 U.S. 668, 691-692 [80 L.Ed.2d 674, 696] (Strickland); People v. Ledesma (1987) 43 Cal.3d 171, 216-217 (Ledesma); People v. Rogers (2016) 245 Cal.App.4th 1353, 1367 (Rogers).) " 'Surmounting Strickland's high bar is never an easy task.' " (Harrington v. Richter (2011) 562 U.S. 86, 105 [178 L.Ed.2d 624, 642] (Richter), quoting Padilla v. Kentucky (2010) 559 U.S. 356, 371 [176 L.Ed.2d 284, 297].)
Here, it is clear that counsel's performance fell below an objective standard of reasonableness under prevailing professional norms. Sanchez, a landmark case, was published the week before the sanity phase in defendant's trial. There is simply no excuse for not citing and relying on the rules related to expert basis testimony our high court carefully articulated therein.
However, defendant has not shown prejudice. To establish prejudice, "[i]t is not enough 'to show that the errors had some conceivable effect on the outcome of the proceeding.' " (Richter, supra, 562 U.S. at p. 104.) To show prejudice, defendant must show a reasonable probability that he would have received a more favorable result had counsel's performance not been deficient. (Strickland, supra, 466 U.S. at pp. 693-694; Ledesma, supra, 43 Cal.3d at pp. 217-218.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland, at p. 694; accord, Ledesma, at p. 218.) "The likelihood of a different result must be substantial, not just conceivable." (Richter, at p. 112, italics added; Rogers, supra, 245 Cal.App.4th at p. 1367; People v. Jacobs (2013) 220 Cal.App.4th 67, 75; In re M.P. (2013) 217 Cal.App.4th 441, 457, fn. 10.)
In part I.E.3. of the Discussion, ante, we determined that the trial court's errors in admitting the statements at issue here did not prejudice defendant under the state law standard for the erroneous admission of hearsay testimony because it is not reasonably probable that the jury would have found defendant to have been insane at the time of the underlying offenses in the absence of the trial court's errors. (Watson, supra, 46 Cal.2d at p. 836.) All of the same statements are at issue with regard to defendant's confrontation clause contentions.
Having already considered the effect of the jury not hearing the offending testimony under Watson, we similarly conclude defendant was not prejudiced under Strickland. The Watson standard for harmless error is substantially the same as the prejudice prong of Strickland. (People v. Ocegueda (2016) 247 Cal.App.4th 1393, 1407, fn. 4.) We conclude that there is not a reasonable probability that defendant would have received a more favorable result—a verdict that defendant was insane at the time of the underlying offenses—had counsel's performance not been deficient. (Strickland, supra, 466 U.S. at pp. 693-694; Ledesma, supra, 43 Cal.3d at pp. 217-218.)
Because we conclude that defendant was not prejudiced by counsel's failure to object on confrontation clause grounds, there is no need for us to determine whether some of the hearsay was not testimonial and thus not subject to exclusion under the confrontation clause.
II. Sentencing Contentions
A. Romero Motion
1. Additional Background
Following the guilty verdicts and the jury finding that defendant was not insane at the time he committed the charged crimes, defense counsel filed a Romero motion to strike the prior serious felony convictions. Defendant asserted that the imposition of a sentence of life without the possibility of parole would constitute cruel, "although . . . not necessarily unusual," punishment. Defendant grounded his motion primarily on his mental illness or disability and that he had been self-medicating, leading to addiction. Defendant asserted that he lacked "the malevolence of a person who does fall within the spirit of the three strikes law."
The prosecution opposed defendant's Romero motion, asserting that the circumstances of defendant's present and prior offenses did not place him outside the spirit of the Three Strikes law. The prosecution relied on defendant's extensive criminal history.
In addressing the Romero motion, the trial court stated that defendant had been "doing a life sentence on the installment plan, going back essentially to 1984." The court reviewed defendant's conviction and sentence history. The court agreed that defendant encountered the criminal justice system frequently in part because of his mental health issues. Addressing defense counsel's argument that, based on defendant's age when he could possibly be released from prison, he would be unlikely to recidivate, the court stated: "I believe [defendant] may be an outlier in this situation. . . . But while I agree with you that the septuagenarians and the octogenarians are not the crime threat that they were when they were 30 or 40, and many of them do clean up their act, and I know many of them who have cleaned up their act, I regret that it appears to me that [defendant] -- he's not one of those guys as long as he's physically able to commit crimes. I think the only reasonable conclusion from his long history of committing crimes is that he will continue to do that, and I just don't want to have more victims . . . ." The court also discussed the State's allocation of resources to prisons for people such as defendant, who commit criminal acts but do so, at least in part, due to mental health issues. The court stated that it had no compunction about sentencing someone with defendant's criminal history to a term consistent with the Three Strikes scheme. The court stated that this "is a classic three strikes kind of case. The only footnote sort of exception of that may arguably be that there's a significant mental illness aspect, but, in fact, that doesn't distinguish it from the intention and scheme of the three strikes. That's what the public wanted to do, understandably and quite legitimately, is take people who commit crimes like [defendant] continues to commit, increasingly serious crimes judging from the last one, off the streets. So the Romero motion is denied." (Italics added.)
2. Defendant's Contentions
Defendant asserts that the trial court abused its discretion in denying his Romero motion. He emphasizes that one of his prior strikes, a robbery, occurred in 1998, and the other, a first degree burglary, occurred in 1985. Defendant also emphasizes that his criminal history includes no assaults, no use of weapons, and no domestic violence. He asserts that his record does not demonstrate any history of violence or predatory behavior. He further asserts that many of the crimes in his criminal history are crimes that have been reduced to misdemeanors by Proposition 47, the Safe Neighborhoods and Schools Act (Proposition 47). Defendant notes that if the trial court struck the 1985 burglary conviction, it still could have imposed an aggregate determinate sentence of 36 years eight months, which, given his age, would likely still amount to a life sentence. Even if the trial court struck both prior serious felony convictions, defendant's maximum aggregate sentence would have been 26 years eight months. Defendant asserts that these sentences would have been more commensurate with the furtherance of justice in this case. Among the factors that defendant asserts weighed in favor of striking one or both priors were the experts' opinions that defendant was not malingering and was suffering from psychosis at the time of the offenses; his genuine belief that he was being pursued by people who wanted to kill him; the remoteness and nonserious nature of many of his prior crimes; defendant's age and physical health; and his mental health status.
Defendant acknowledges that it does not appear that any petition has been filed on his behalf pursuant to section 1170.18 to redesignate any qualifying prior convictions to misdemeanors.
3. Romero Motions and Standard of Review
Section 1385, subdivision (a), authorizes a trial court "to strike prior felony conviction allegations in cases brought under the Three Strikes law." (Romero, supra, 13 Cal.4th at pp. 529-530.) "[T]he three strikes law not only establishes a sentencing norm, it carefully circumscribes the trial court's power to depart from this norm and requires the court to explicitly justify its decision to do so. In doing so, the law creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper." (People v. Carmony (2004) 33 Cal.4th 367, 378 (Carmony).) In ruling whether to strike or dismiss a prior conviction under section 1385 or in reviewing such a ruling, "the court . . . 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.)
"We review for abuse of discretion a trial court's decision not to strike a prior conviction under section 1385 or Romero." (People v. Carter (2018) 26 Cal.App.5th 985, 995, citing Carmony, supra, 33 Cal.4th at p. 376.) "In reviewing for abuse of discretion, we 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 legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review." ' [Citations.] 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.' " ' [Citations.] 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." (Carmony, at pp. 376-377.) In light of the "strong presumption that any sentence that conforms to [the] sentencing norms [established by the Three Strikes law] is both rational and proper," "a trial court will only abuse its discretion in failing to strike a prior felony conviction allegation in limited circumstances." (Id. 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." (Ibid.)
4. Analysis
Because we must consider the Williams factors in reviewing a trial court's ruling whether to dismiss or strike the prior strike convictions (Williams, supra, 17 Cal.4th at p. 161), we have reviewed the record available to the trial court and highlight information relevant to the Williams factors.
a. Nature and Circumstances of Present Felony Conviction
In the commission of both the carjacking and felony evasion offenses, defendant endangered others. The carjacking victim was dragged along the ground and sustained a severe headache from her head hitting the concrete that lasted several days. She also sustained injuries to her leg and arm. She told the probation department that, as of the time the probation report was written, she still had swelling on her arm where defendant had a hold of her as he drove away. She continued to attend counseling because she has trouble sleeping and has nightmares. She moved after defendant mailed her a letter because defendant knew where she lived. Her car was totaled and, although she had insurance, she felt her insurance company did not reimburse her for what the car was worth.
During the high-speed chase, defendant endangered numerous CHP officers and many more civilians as he sped on the roads and freeways in and out of three counties on a weekday afternoon at speeds exceeding 100 miles per hour for approximately 45 minutes.
The nature and circumstances of the current offenses does not support a finding that defendant falls outside the spirit of the Three Strikes law.
b. Nature and Circumstances of Prior Strike Convictions
Defendant has two prior serious felony convictions. Defendant was convicted of first degree burglary (§ 459) in 1985 and second degree robbery (§ 211) in 1998. He asserts that there is no indication that his prior crimes involved violence. The record does not shed any light on the factual circumstances of defendant's prior crimes. However, robbery, by law and its very nature, is a violent felony offense. (§ 667.5, subd. (c)(9).) The offense requires that a defendant use force or fear to take property from the victim. (§ 211.)
Defendant points out that his strike convictions are old. However, as we next discuss, defendant's background shows his failure to live a law-abiding life since his last strike conviction. (See People v. Humphrey (1997) 58 Cal.App.4th 809, 813 [where a defendant has led a continuous life of crime after a prior, there has been no "washing out," and there is "nothing mitigating" about the remoteness of the prior].)
c. Background, Character, and Prospects for the Future
Defendant's criminal history is extensive, including felony convictions for: first degree burglary in 1985 (§ 459) (four years state prison) (first strike); vehicle theft in 1985 (Veh. Code, § 10851) (two years state prison); receiving stolen property in 1987 (§ 496) (two years state prison); vehicle theft (Veh. Code, § 10851) and felony evasion (Veh. Code, § 2800.2) and an on-bail or own-recognizance enhancement (§ 12022.1) in 1990 (six years, eight months state prison); vehicle theft (Veh. Code, § 10851) and felony evasion (Veh. Code, § 2800.2) in 1990 (2 years state prison); petty theft in 1994 (§ 666) (three years state prison suspended); receiving stolen property in 1996 (§ 496) (two years state prison); second degree robbery in 1998 (§ 211) (eight years state prison) (second strike); conspiracy to bring a controlled substance into a state prison in 2000 (§§ 4573, 182) (10 years state prison); and vehicle theft in 2013 (Veh. Code, § 10851) (three years state prison). In addition, defendant was convicted of misdemeanor resisting, delaying, or obstructing a peace officer in 2012 (§ 148) (three years informal probation) and misdemeanor purchase, possession, or use of tear gas in 2015 (§ 22810) (three years informal probation).
The factual circumstances of defendant's prior crimes are not discussed in the probation report. However, we certainly do not characterize the majority of the foregoing convictions as "nonserious" as does defendant. Indeed, defendant's current conviction for felony evasion in violation of Vehicle Code section 2800.2 is not the first time he engaged in such conduct after stealing a vehicle. As noted ante, he has two prior convictions for leading officers on such pursuits involving a stolen vehicle in 1990, for which he received six-year and a two-year state prison sentences. Moreover, it is clear that the only significant gaps between defendant's convictions exist when defendant was incarcerated. And it does not appear that, when not incarcerated, defendant went for long periods without committing crimes. We also note that defendant was on probation at the time he committed the instant offenses. Defendant had been sentenced to three years informal probation following his February 24, 2015, conviction of misdemeanor purchase, possession, or use of tear gas (§ 22810), which occurred the month prior to the events at issue here.
Defendant relies heavily on his mental health, addiction, and age. Notwithstanding the jury's determination that defendant was not insane at the time of the underlying offenses, two experts who evaluated defendant agreed, as did the trial court, that defendant is plagued with significant mental health challenges. He has been in and out of mental health facilities. One expert appointed to evaluate defendant under section 1027 diagnosed defendant with a Mood Disorder, not otherwise specified, with a history of psychotic features most likely associated with an extensive history of methamphetamine abuse. The other expert appointed under section 1027, Dr. Cardella, diagnosed defendant with methamphetamine intoxication and mild methamphetamine use disorder with methamphetamine-induced psychotic disorder, with onset during intoxication at the time of the offense. He also diagnosed defendant, post-offense, with other specified depressive disorder, depressive episode with insufficient symptoms, and mild methamphetamine use disorder. According to his self-report, defendant has a 34-year history of methamphetamine abuse.
A third expert's report was inconclusive and stated that the expert believed additional analysis was required to determine the extent of defendant's neurocognitive deficits.
Yet, these mental health and addiction circumstances, while perhaps explaining some of defendant's criminal conduct, do not take him out of the spirit of the Three Strikes law. Nor does defendant's age weigh heavily into the analysis. As the trial court noted, defendant's background suggests he will reoffend whenever he is released from prison. Indeed, defendant has committed a serious offense while in prison. As noted, in 2000, he was convicted of conspiracy to bring a controlled substance into a state prison, for which he received a sentence of 10 years state prison.
d. Conclusion - Romero Motion Ruling
The record as a whole, including defendant's extensive criminal history, two prior strike offenses, no fewer than 10 separate felony convictions, and two additional misdemeanor convictions, one the month prior to the events at issue here, demonstrates continuous criminal conduct undeterred by repeated incarceration. The totality of the circumstances does not show that defendant should be deemed outside the spirit of the Three Strikes law.
Thus, we cannot conclude that the trial court abused its discretion in denying defendant's Romero motion. The court was aware of its discretion and considered relevant factors. The trial court's determination was not "so irrational or arbitrary that no reasonable person could agree with it." (Carmony, supra, 33 Cal.4th at p. 377.)
B. Prior Prison Terms
1. Defendant's Contentions
In his opening brief, defendant asserted that the trial court abused its discretion in failing to strike one or more of his prior prison term enhancements. In supplemental briefing, defendant asserts that, following the enactment of Senate Bill No. 136, the prior prison term enhancements must be struck because his prior prison terms no longer qualify as predicates for the imposition of enhancements pursuant to section 667.5, subdivision (b). Defendant asserts that the ameliorative benefits of Senate Bill No. 136 apply retroactively. The People concede that Senate Bill No. 136 applies retroactively and that this court may strike the prior prison term enhancements.
2. Senate Bill No. 136
While this appeal was pending, the Governor signed Senate Bill No. 136 (2019-2020 Reg. Sess.) (Stats 2019, ch. 590, § 1) (Senate Bill 136), effective January 1, 2020. At the time of defendant's sentencing, section 667.5, subdivision (b), required trial courts to impose a one-year sentence enhancement for each true finding on an allegation that the defendant had served a separate prior prison term unless the defendant had remained free of both felony convictions and prison or jail custody during a period of five years since the subject prior prison term. (§ 667.5, subd. (b).) Following the enactment of Senate Bill 136, only prior prison terms for sexually violent offenses, as defined in Welfare and Institutions Code section 6600, subdivision (b), are subject to the one-year enhancement pursuant to section 667.5, subdivision (b). (Stats 2019, ch. 590, § 1.)
"By eliminating section 667.5, subdivision (b) enhancements for all prior prison terms except those for sexually violent offenses, the Legislature clearly expressed its intent in Senate Bill No. 136 . . . to reduce or mitigate the punishment for prior prison terms for offenses other than sexually violent offenses. [Citation.]" (People v. Jennings (2019) 42 Cal.App.5th 664, 682.) Therefore, under the rule in In re Estrada (1965) 63 Cal.2d 740 (Estrada), "Senate Bill No. 136's . . . amendment to section 667.5, subdivision (b) applies retroactively to all cases not yet final as of its January 1, 2020, effective date." (Ibid.)
Because defendant's case was still pending as of January 1, 2020, he is entitled to the ameliorative benefit of Senate Bill 136's amendment to section 667.5, subdivision (b). None of defendant's prior prison terms were for "a sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code." (Stats 2019, ch. 590, § 1.) Because these prior prison terms will no longer be qualifying prior prison terms for the imposition of enhancements pursuant to section 667.5, subdivision (b), as amended by Senate Bill 136, we shall strike all one-year prior prison term enhancements imposed. In light of our determination, we need not address defendant's other contentions concerning the prior prison term enhancements.
C. Selection of the Upper Term
1. Defendant's Contentions
Defendant asserts that the trial court abused its discretion in selecting the upper term on count two, felony evasion. Defendant emphasizes that Vehicle Code section 2800.2 is a wobbler that may be treated as a misdemeanor or with a prison sentence of 16 months, two years, or three years. Defendant asserts that the selection of the maximum term, which was then doubled, and imposed consecutively to the indeterminate term, constituted an abuse of discretion.
2. Selection of an Upper Term Sentence
"When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court . . . . The court shall select the term which, in the court's discretion, best serves the interests of justice." (§ 1170, subd. (b); People v. Sandoval (2007) 41 Cal.4th 825, 848 (Sandoval).) In selecting the appropriate term, "the court may consider the record in the case, the probation officer's report, other reports, . . . and statements in aggravation or mitigation submitted by the prosecution, the defendant, or the victim . . . and any further evidence introduced at the sentencing hearing." (§ 1170, subd. (b).)
A trial court's decision to impose the upper term is subject to review for abuse of discretion. (Sandoval, supra, 41 Cal.4th at p. 847.) A trial court abuses its discretion if it "relies upon circumstances . . . not relevant to the decision or that otherwise constitute an improper basis for [its] decision." (Ibid.) In exercising its discretion to impose a sentencing judgement, the court may consider circumstances in aggravation or mitigation, and any other factor reasonably related to the sentencing decision. (Cal. Rules of Court, rules 4.420(b), 4.408.) Even one aggravating factor is enough to justify imposition of an upper term, and a court may minimize or even completely disregard mitigating factors without stating its reasons. (People v. Black (2007) 41 Cal.4th 799, 817 (Black); People v. Lai (2006) 138 Cal.App.4th 1227, 1258 (Lai).)
3. Analysis
Defendant emphasizes that the trial court relied on the fact that people could have been injured or killed as a result of the 45-minute pursuit involving "countless" police officers. He asserts that risk of danger to persons and property is an element of a Vehicle Code section 2800.2 violation and therefore does not make this offense more serious than other instances of the same offense.
Vehicle Code section 2800.2 provides, in pertinent part: "(a) If a person flees or attempts to elude a pursuing peace officer in violation of Section 2800.1 and the pursued vehicle is driven in a willful or wanton disregard for the safety of persons or property, the person driving the vehicle, upon conviction, shall be punished by imprisonment in the state prison, or by confinement in the county jail for not less than six months nor more than one year . . . . [¶] (b) For purposes of this section, a willful or wanton disregard for the safety of persons or property includes, but is not limited to, driving while fleeing or attempting to elude a pursuing peace officer during which time either three or more violations that are assigned a traffic violation point count under Section 12810 occur, or damage to property occurs."
A sentencing court may not use a reason to impose an upper term that is also an element of the crime. (Cal. Rules of Court, rule 4.420(d); People v. Clark (1992) 12 Cal.App.4th 663, 666.) However, where the facts surrounding the charged offense make the offense distinctively worse than the ordinary, the trial court can use such evidence to aggravate the sentence. (Black, supra, 41 Cal.4th at p. 817; People v. Morena (1982) 128 Cal.App.3d 103, 110 (Morena).) A crime is outside of the ordinary when the facts exceed the minimum necessary to establish the elements of the crime. (People v. Castorena (1996) 51 Cal.App.4th 558, 562 (Castorena).)
The trial court here clearly concluded that defendant's conduct was "outside of the ordinary" violation of Vehicle Code section 2800.2. As the trial court began imposing the sentence on count two, the trial court stated: "[B]y the way, that was a multicounty -- I want to parenthetically observe -- multicounty flight from countless peace officers. One Highway Patrol unit after another, and also some local units, and it really is amazing. It went on for 50 minutes or something, that is amazing that nobody was injured or killed in connection with that. [¶] Anyway, the upper term on that 2800.2 Sub (a) is three years. I'm imposing that times two . . . ."
Expanding on the trial court's observations, we note that defendant led a succession of CHP officers on a high-speed chase through several counties over approximately 45 minutes. Defendant drove on a city street at 60 miles per hour through what Paul believed to be a 35 miles per hour zone. He failed to stop for a stop sign, crossed double yellow lines, and entered onto the freeway. There, his speed was estimated by officers to be between 80 and 90 miles per hour, between 85 and "a hundred-plus" miles per hour, in excess of 90 miles per hour, "[j]ust over a hundred miles an hour," and in excess of 105 miles per hour. One officer estimated that defendant was driving at these speeds for the time during which she was the primary pursuit, which lasted for about 30 minutes or more for approximately 55 miles. Defendant made unsafe lane changes, passed vehicles on the right, drove on the shoulder, and kicked up debris. Debris he kicked up shattered the windshields of two different CHP units, which were pursuing him at the speeds he was traveling, thus subjecting the CHP officers to the threat of great bodily harm. He also drove on the center divider. Defendant used all three lanes "in extreme fashions at high speeds." He made erratic lane changes and cut off other vehicles. During the pursuit, the highway traffic was moderate. The pursuit only ended when defendant suddenly lost control of the vehicle, which rotated counterclockwise and collided with the center median wall. Obviously, defendant never yielded to any of law enforcement's lights and sirens.
Thus, during the pursuit, defendant crossed a double yellow line in violation of Vehicle Code section 21460, subdivision (a). He failed to stop at a stop sign on two separate occasions in violation of Vehicle Code section 22450, subdivision (a). On the freeway, defendant drove at unsafe speeds, between 80 miles an hour and in excess of 105 miles per hour, in violation of Vehicle Code section 22350. He made numerous unsafe lane changes, swerving in and out of traffic, in violation of Vehicle Code section 21658. He passed vehicles on the right by driving on the shoulder in violation of Vehicle Code section 21755. This nonexhaustive list represents six separate traffic violations. Thus, this is more than the three violations required by Vehicle Code sections 2800.2, subdivision (b), and 12810. Moreover, the victim's La Sabre sustained significant damage, and thus "damage to property occur[red]." (Veh. Code, § 2800.2, subd. (b).)
The trial court correctly concluded that the facts surrounding the offense made it "distinctively worse than the ordinary," and thus the trial court could "use such evidence to aggravate the sentence." (Black, supra, 41 Cal.4th at p. 817; Morena, supra, 128 Cal.App.3d at p. 110.) The facts far exceeded the minimum necessary to establish the elements of the crime. (Castorena, supra, 51 Cal.App.4th at p. 562.) This single aggravating factor was sufficient to justify imposition of the upper term. (Lai, supra, 138 Cal.App.4th at p. 1258.)
Furthermore, even if the court erred in considering the facts underlying count two, because there are other aggravating factors the court could impose, the error is harmless and remand would be futile because the court would likely rely on the other factors to impose the upper term. For example, the probation department recommended that the court impose the upper term on count two, citing as a circumstance in aggravation the fact that defendant's prior convictions were numerous. Indeed, as we have noted, his convictions included two prior convictions of the same crime at issue here, violation of Vehicle Code section 2800.2, both of which involved a stolen vehicle. And defendant was sent to state prison on both convictions. "[A]lthough the court did not mention defendant's . . . prior . . . convictions as a reason for imposing the upper term, those convictions qualified as an aggravating circumstance under rule 4.421(b)(2) of the California Rules of Court . . . ." (People v. Stuart (2008) 159 Cal.App.4th 312, 314 (Stuart), fn. omitted, italics added.)
The trial court addressed defendant's extensive criminal history at length in denying defendant's Romero motion, although it did not expressly mention defendant's criminal history in imposing the upper term on count two.
Additionally, the probation report cited subdivision (b)(4) of California Rules of Court, rule 4.421, which states as an aggravating factor that the "defendant was on probation . . . when the crime was committed." Here, the probation report showed that defendant was on informal probation at the time he committed the charged offenses. Although the trial court did not mention the fact that defendant was on informal probation at the time he committed the present offenses as a reason for imposing the upper term, that fact established an aggravating circumstance based on California Rules of Court, rule 4.421(b)(4). (See Stuart, supra, 159 Cal.App.4th at p. 314.)
Defendant asserts that two factors in mitigation were present here: the "crime was committed because of an unusual circumstance" that was "unlikely to recur" (Cal. Rules of Court, rule 4.423(a)(3)), and defendant was suffering from a mental condition "that significantly reduced culpability for the crime" (Cal. Rules of Court, rule 4.423(b)(2)). The sentencing court properly could elect to minimize or completely disregard these mitigating factors without stating its reasons. (Lai, supra, 138 Cal.App.4th at p. 1258.) However, the trial court did not disregard these mitigating factors. It considered them, at least insofar as addressing defendant's Romero motion, but ultimately did not find them compelling when weighed against other sentencing considerations. Moreover, given that this was defendant's third Vehicle Code section 2800.2 violation involving a stolen vehicle, we think the contention that his conduct is unlikely to recur is unworthy of serious consideration.
The trial court did not abuse its discretion in imposing the upper term on count two.
D. Cruel and Unusual Punishment
1. Defendant's Contentions
Defendant asserts that the sentence imposed constitutes cruel and unusual punishment in violation of the Eighth Amendment. Defendant acknowledges that his current offense "is a relatively serious one." However, he further contends that the "bulk of his criminal history is a string of low-level offenses, most of which have since been reclassified by the electorate as misdemeanors, and by the Legislature to no longer result in a prison commitment." He again emphasizes the remoteness of his prior serious felonies, as well as his history of mental illness and his physical health. Defendant asserts that the sentence imposed is grossly disproportional to the crimes.
Defendant does not raise a contention under article I, section 17, of the California Constitution. As a consequence, we limit our analysis to the Eighth Amendment question.
2. Forfeiture
The People assert that defendant forfeited his contention because he did not raise it in the trial court. In his reply brief, defendant asserts that he did preserve the issue, that there is a sufficient record to make a determination on the merits, and that a contention that a sentence constitutes cruel and unusual punishment under the Eighth Amendment should never be deemed waived.
In his Romero motion, defense counsel asserted that the imposition of a sentence of life without the possibility of parole "is certainly cruel, although it is not necessarily unusual in recent jurisprudence." (Italics added.) He continued, "It should be unusual for a person such as [defendant], however. I would hope any imposition of such a sentence would be unusual when this court considers all aspects of this individual." At sentencing, defense counsel did not argue that the sentence constituted cruel and unusual punishment under the Eighth Amendment.
Because defendant failed to make the contention that his sentence constituted cruel and unusual punishment in violation of the Eighth Amendment in the trial court, he has forfeited the issue. (People v. Baker (2018) 20 Cal.App.5th 711, 720; People v. Speight (2014) 227 Cal.App.4th 1229, 1248; People v. Kelley (1997) 52 Cal.App.4th 568, 583.) In his supplemental brief, defendant asserts that, to the extent that his claim is forfeited, he was denied the constitutionally effective assistance of counsel. We shall consider defendant's contention in the context of his ineffective assistance of counsel claim.
3. Cruel and Unusual Punishment Framework
"[I]t is now firmly established that '[t]he concept of proportionality is central to the Eighth Amendment,' and that '[e]mbodied in the Constitution's ban on cruel and unusual punishments is the "precept of justice that punishment for crime should be graduated and proportioned to [the] offense." ' " (In re Coley (2012) 55 Cal.4th 524, 538, quoting Graham v. Florida (2010) 560 U.S. 48, 59 [176 L.Ed.2d 825, 835].) The Eighth Amendment's proportionality principle is narrow in the context of prison terms for adult offenders. (In re Bolton (2019) 40 Cal.App.5th 611, 622, citing Ewing v. California (2003) 538 U.S. 11, 20 [155 L.Ed.2d 108, 117] (Ewing).) "It ' "does not require strict proportionality between crime and sentence," ' but prohibits ' "extreme sentences that are 'grossly disproportionate' to the crime." ' " (In re Bolton, at p. 622.) In determining whether a sentence for a term of years is grossly disproportionate for a particular defendant's crime, " '[a] court must begin by comparing the gravity of the offense and severity of the sentence. [Citation.] "[I]n the rare case in which [this] threshold comparison . . . leads to an inference of gross disproportionality" the court should then compare the defendant's sentence with the sentences received by other offenders in the same jurisdiction and with the sentences imposed for the same crime in other jurisdictions. [Citation.] If this comparative analysis "validate[s] an initial judgment that [the] sentence is grossly disproportionate," the sentence is cruel and unusual.' " (In re Coley, at p. 542, quoting Graham, at p. 60.) "Reviewing courts must ' "grant substantial deference to the broad authority that legislatures necessarily possess in determining the types and limits of punishments for crimes." ' " (People v. Edwards (2019) 34 Cal.App.5th 183, 190-191, quoting Harmelin v. Michigan (1991) 501 U.S. 957, 999 [115 L.Ed.2d 836, 867] (opn. of Kennedy, J., conc. in part & conc. in the judg.) & Solem v. Helm (1983) 463 U.S. 277, 290 [77 L.Ed.2d 637, 649].) "Outside the context of capital punishment, successful challenges to the proportionality of particular sentences have been exceedingly rare." (Rummel v. Estelle (1980) 445 U.S. 263, 272 (Rummel).)
4. Ineffective Assistance of Counsel Analysis
Defendant's current offenses are serious. First, he committed carjacking (§ 215, subd. (a)), taking the victim's car despite her struggle and injuring her physically and mentally in the process. He then committed felony evasion (Veh. Code, § 2800.2), leading numerous CHP officers on a multi-county high-speed chase endangering those officers and untold numbers of civilians.
Defendant " ' "is not subject to a life sentence merely on the basis of his current offense but on the basis of his recidivist behavior. Recidivism in the commission of multiple felonies poses a manifest danger to society[,] justifying the imposition of longer sentences for subsequent offenses." ' " (People v. Mantanez (2002) 98 Cal.App.4th 354, 366, quoting People v. Stone (1999) 75 Cal.App.4th 707, 715.) "Recidivism has long been recognized as a legitimate basis for increased punishment." (Ewing, supra, 538 U.S. at p. 25.) "[T]hree strikes sentences for less serious felonies have been routinely upheld against Eighth Amendment attack." (In re Bolton, supra, 40 Cal.App.5th at p. 622; see, e.g., Ewing, at pp. 30-31 [felony grand theft involving three golf clubs valued at $399 each].) Thus, "[i]n weighing the gravity of [defendant's] offense[s], we must place on the scales not only his current felon[ies], but also his long history of felony recidivism." (Ewing, at p. 29.) "In imposing a three strikes sentence, the State's interest is not merely punishing the offense of conviction, or the 'triggering' offense: '[I]t is in addition the interest . . . in dealing in a harsher manner with those who by repeated criminal acts have shown that they are simply incapable of conforming to the norms of society as established by its criminal law.' " (Ibid., quoting Rummel, supra, 445 U.S. at p. 276.) "To give full effect to the State's choice of this legitimate penological goal, our proportionality review of [defendant's] sentence must take that goal into account." (Ewing, at p. 29.)
Here, defendant'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." (Ewing, supra, 538 U.S. at pp. 29-30.)
We conclude that defendant's contention that his sentence constituted cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution is meritless. As such, defense counsel cannot be deemed ineffective for failing to make this argument before the sentencing court. (See People v. Ochoa (1998) 19 Cal.4th 353, 463 [counsel is not constitutionally ineffective for failing to raise a meritless objection]; People v. Pierce (2015) 234 Cal.App.4th 1334, 1337 [same].) Moreover, defendant was not prejudiced by counsel's failure to make such an argument because he has not shown that there is a reasonable probability that he would have received a more favorable result had counsel made the argument. (Strickland, supra, 466 U.S. at pp. 693-694; Ledesma, supra, 43 Cal.3d at pp. 217-218.)
III. Senate Bill No. 1393
Defendant asserts that, following the enactment of Senate Bill No. 1393 (Stats. 2018, ch. 1013, §§ 1-2), this matter must be remanded to afford the trial court the opportunity to exercise its newly authorized discretion to strike the prior serious felony conviction enhancements. The People agree that remand is proper, and so do we.
Senate Bill No. 1393 authorizes a trial court to strike a section 667, subdivision (a), prior serious felony enhancement in the interest of justice under section 1385, effective January 1, 2019. (Stats. 2018, ch. 1013.) Senate Bill No. 1393 applies retroactively to cases not yet final. (People v. Jones (2019) 32 Cal.App.5th 267, 273; People v. Garcia (2018) 28 Cal.App.5th 961, 973.)
We agree with the parties that remand is appropriate so the trial court may consider exercising its discretion regarding defendant's section 667, subdivision (a), enhancements.
DISPOSITION
We modify the judgment to strike the 14 one-year prior prison term enhancements imposed pursuant to section 667.5, subdivision (b). The matter is remanded so the trial court may consider exercising its discretion under Senate Bill No. 1393. The trial court shall prepare amended abstracts of judgment deleting the section 667.5, subdivision (b), prior prison term enhancements. If the trial court elects to strike either or both of defendant's prior serious felony conviction enhancements, it shall amend the abstract accordingly. The court shall forward certified copies of the amended abstracts to the Department of Corrections and Rehabilitation. In all other respects, we affirm.
/s/_________
MURRAY, Acting P. J. We concur: /s/_________
HOCH, J. /s/_________
KRAUSE, J.