Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06F01583
BLEASE, Acting P. J.
A jury convicted Christopher Shawn Whisenant and Nolan Jay Bush of possession of a firearm by a felon and possession of ammunition by a felon. (Pen. Code, §§ 12021, subd. (a)(1), 12316, subd. (b)(1).) The trial court found that Bush had a strike and Whisenant had two strikes and had served two prison terms. (Pen. Code, §§ 667, subds. (b)-(i), 667.5, subd. (b).) The trial court sentenced Bush to five years and four months in prison, and Whisenant to 25 years in prison. Bush and Whisenant timely appealed.
During trial, codefendant Benny Ramos pled no contest to the charges of possession by a felon of a firearm and of ammunition, and also pled no contest to possession by a felon of body armor (Pen. Code, § 12370, subd. (a)). The trial court found Ramos had a strike, and he was sentenced to prison for the same time as Bush, five years and four months. Ramos did not appeal.
Both defendants contend the trial court should have granted their motion to suppress evidence. Whisenant also contends the trial court should have granted his Romero motion (People v. Superior Court (Romero)(1996) 13 Cal.4th 497), and the failure to do so resulted in a cruel and unusual sentence. We shall affirm.
FACTS AT TRIAL
On the night of April 2, 2005, Bush, Whisenant and Benny Ramos, not a party to this appeal, were in a Chevrolet Blazer that was pulled over after a sheriff’s deputy heard gunshots, then saw the Blazer coming from the direction of the gunshots. The Blazer contained a ballistic vest, or “body armor,” and a loaded pistol magazine. Three loaded pistols of different calibers were found by the road along the route between where the deputy began following the Blazer and where he stopped it. Five bullets of unusual caliber were found in the patrol car Bush had been in, and they fit one of the guns found by the roadside. The magazine found in the vehicle fit a different gun found by the road. All three men had felony convictions.
DISCUSSION
I. Suppression Motion
A. Standard of Review
“In reviewing a trial court’s ruling on a motion to suppress evidence, ‘an appellate court defers to the trial court’s express or implied findings of fact that are supported by substantial evidence.... [Citations.] “[T]he power to judge the credibility of the witnesses, resolve any conflicts in the testimony, weigh the evidence and draw factual inferences, is vested in the trial court.” [Citation.] If factual findings are unclear, the appellate court must infer “a finding of fact favorable to the prevailing party on each ground or theory underlying the motion.” [Citation.]’” (People v. Munoz (2008) 167 Cal.App.4th 126, 132-133 (Munoz).)
B. Facts from Suppression Hearing
Sacramento County Deputy Sheriff Jason Harris was the only witness at the hearing. He had been a patrol deputy for over six years. On April 2, 2005, at about 11:20 p.m., he was parked near Kiefer Boulevard and Happy Lane, by Mather Air Force Base, doing paperwork. It was a remote, industrial area, “mostly just an open area,” although there were a few residences. No businesses were open and he saw no vehicles in the 10 minutes he was there.
Deputy Harris then heard at least two gunshots from the south, “very close. Within a couple of hundred yards at the most.” He had been in the U.S. Army for six years, and through that experience and his duties as a deputy, he was very familiar with the sound of gunshots and was certain he heard gunshots. A Chevrolet Blazer with tinted rear windows then passed him, coming from the south, about 10-15 seconds after the gun shots, “And from the sound of it, it was accelerating” but it had not yet reached the speed limit. Deputy Harris could see at least two people inside, who looked at him as the Blazer passed by. Because that was the only vehicle he had seen in the remote area since he had been there, he followed it. He paced it going 60 miles per hour in a 45 mile-per-hour zone. He pulled the Blazer over close to a “fairly secluded” area. He stopped the Blazer because of the speeding and to investigate the gunshots.
Deputy Harris saw there were three people in the car and he “request[ed] identification from all three[,]” which they gave. When he checked and learned all three men had violent felony convictions, including for murder, assault with a deadly weapon and “Things like that[,]” he called for backup. Backup arrived within five minutes. Out of concern about weapons in the car, the officers drew their guns, called the occupants out one by one, patted each down and placed them in separate patrol vehicles. Whisenant and Bush had been passengers; Ramos had been driving.
Deputy Harris testified that when the men were extracted, he saw a ballistic vest on the back seat.
Because the occupants were felons, Deputy Harris correctly believed it was illegal for any of them to possess a ballistic vest. (See Pen. Code, § 12370, subd. (a).) Therefore, he believed he had probable cause to arrest them and impound the Blazer. He saw an open alcohol container, and then looked in the glove box, where he found a loaded pistol magazine. His subjective reason to search was because he did not want to leave a firearm in the Blazer.
After the appellate briefing was completed, another court held — over a strong dissent — that the body armor statute was void for vagueness. (People v. Saleem (2009) 180 Cal.App.4th 254, rev. pet. filed Jan. 22, 2010.) Neither Bush nor Whisenant was convicted of possession of body armor, and Ramos, who pled no contest to that charge, is not a party to this appeal. (See fn. 1, ante.) Deputy Harris had no basis to question the validity of the body armor statute at the time he acted. Accordingly, the new decision is of no consequence to this case. (See People v. Hardacre (2004) 116 Cal.App.4th 1292, 1300-1301; In re Hector R. (1984) 152 Cal.App.3d 1146, 1152.)
Deputy Harris testified the entire encounter between stopping the Blazer and searching the vehicle was 8-10 minutes. It usually takes him less than 10 minutes to stop a vehicle and write a traffic citation.
The trial court denied the motion.
C. Analysis
The claims on appeal can be grouped into four categories: First, defendants were improperly detained because only a “hunch” connected the Blazer to gunshots. Second, it was improper for Deputy Harris to obtain their identification. Third, their detention was excessive, and was transformed into an arrest without probable cause. Fourth, the search of the Blazer was unlawful.
We disagree with each of these claims.
Defendants contend all of the tangible evidence against them should have been suppressed. But the guns (and the ammunition inside them, which the prosecutor argued could support the ammunition charge) were found abandoned by the road and were not suppressible. (See People v. Tuck (1977) 75 Cal.App.3d 639, 646; U.S. v. McLaughlin (9th cir. 1975) 525 F.2d 517, 519-520.)
1. Detention of Passengers
Defendants contend that as passengers in a car pulled over for a speeding violation, their detention was unreasonable. They assert Deputy Harris had only a “hunch” to connect them to the gunshots. We disagree.
“A suspect may be detained if an officer has a reasonable suspicion that criminal activity is afoot and that the suspect is connected with it. [Citation.] The officer ‘“must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant”’ his action. [Citation.] This is a totality of the circumstances evaluation, in light of the officer’s training and experience.” (People v. Osborne (2009) 175 Cal.App.4th 1052, 1058 (Osborne).) “Law enforcement officers may ‘draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that “might well elude an untrained person.” [Citations.]’” (People v. Hernandez (2008) 45 Cal.4th 295, 299.) But “officers are not entitled to rely on mere hunches.” (Ibid.)
Deputy Harris had more than a hunch about the Blazer’s connection to the gunshots, he had a reasonable suspicion. He had been parked in a remote area late at night for 10 minutes and had not seen any cars. Within 10-15 seconds of the moment he heard two gunshots nearby, the Blazer came from the direction of those gunshots, accelerating. Given the totality of the circumstances, we agree with the trial court’s observation that Deputy Harris “would be derelict in his duty if he did not pursue the vehicle at least to investigate whether or not that vehicle had some connection to those gunshots.”
In addition to arguing there was insufficient cause to believe the Blazer had a connection to the gunshots, Bush contends those shots might have been “legal hunting, target practice, or an accidental discharge of a weapon. Possibly it was not even a gunshot but a car backfiring.”
The fact there may ultimately have been an innocent explanation for what Deputy Harris heard does not mean he lacked reasonable grounds for suspecting criminality. (See People v. Foranyic (1998) 64 Cal.App.4th 186, 189-190.) Further, Deputy Harris testified what he heard was not a car backfiring, and he had ample experience to know he heard gunshots. The fact there were two shots makes the theory of accidental discharge implausible, and the fact it was nighttime makes the theories of innocent hunting or target shooting implausible.
Because Deputy Harris reasonably believed the Blazer and its occupants were connected to the gunshots, it was proper for him to detain them to investigate those gunshots.
2. Identification of Passengers
Defendants contend Deputy Harris could not “require” or “demand” that they identify themselves.
But, as the Attorney General notes, Deputy Harris asked for identification, he did not demand it.
“In the ordinary course a police officer is free to ask a person for identification without implicating the Fourth Amendment. ‘[I]nterrogation relating to one’s identity or a request for identification by the police does not, by itself, constitute a Fourth Amendment seizure.’” (Hiibel v. Sixth Judicial Dist. Ct. (2004) 542 U.S. 177, 185 [159 L.Ed.2d 292, 302].) “Obtaining a suspect’s name in the course of a Terry stop serves important government interests. Knowledge of identity may inform an officer that a suspect is wanted for another offense, or has a record of violence or mental disorder. On the other hand, knowing identity may help clear a suspect and allow the police to concentrate their efforts elsewhere.” (Id. at p. 186 [159 L.Ed.2d at p. 303].) It is “well established that an officer may ask a suspect to identify himself in the course of a Terry stop[.]” (Id. at p. 186 [159 L.Ed.2d at p. 303]; see People v. Vibanco (2007) 151 Cal.App.4th 1, 13-14 (Vibanco).)
Accordingly, Deputy Harris properly asked defendants for their identification.
Bush argues that because a passenger is necessarily detained when a vehicle is stopped (Brendlin v. California (2007) 551 U.S. 249 [168 L.Ed.2d 132]), “an officer needs a specific reason for requiring identification and cannot seek identification simply because of vague investigatory reasons to satisfy a hunch.” He relies heavily on People v. Spicer (1984) 157 Cal.App.3d 213. In that casea car was stopped and, as the driver was given a field sobriety test by one officer, another officer approached the passenger. This officer asked the passenger for identification, although it was stipulatedthat he “had no reasonable basis for suspecting her of any crime.” (Id. at p. 216.) In such circumstances, the court held the passenger had been detained. In reaching that conclusion the court relied in part on the fact that the officer had not told the passenger why he asked her for her identification, and observed that a citizen could rationally interpret a request for identification by a peace officer to be a demand. (Id. at pp. 219-220.) But as stated, in Spicer, the parties stipulated there was no reason to think the passenger had done anything suspicious. (Id. at p. 216.) Here, in contrast, Deputy Harris reasonably connected the Blazer occupants with a suspicious shooting. The detention of the passengers was not based on the speeding offense committed by the driver, Ramos.
Bush also argues “less invasive avenues of inquiry, other than demanding identification cards” could have been employed, and vaguely states Deputy Harris “could have reasonably sought information about the gunshots he claimed to hear without first requiring that the passengers provide identification. Only as a follow up to such initial inquiry should the deputy be entitled to ask for identification[.]” This is unrealistic. We doubt that if Deputy Harris had asked if the men had been shooting that he would have received an answer that would have dispelled his concerns. Asking for identification to find out who the men werewas a prudent early step to take.
Whisenant cites People v. Loudermilk (1987) 195 Cal.App.3d 996, for the proposition that an officer may not ask passengers for identification. Loudermilk did not involve a traffic stop, but held an officer may ask for identification from a person lawfully detained. (Id. at pp. 1000-1003.) It also held that the failure of a person to identify himself “may by itself be considered suspect and together with surrounding events may create probable cause to arrest.” (Id. at p. 1002.)
Because we hold that defendants were lawfully detained, it was proper to ask them for identification.
3. Excessive Detention
Defendants contend it was improper to handcuff them and place them in patrol cars during a traffic stop, effectively arresting them without probable cause.
Again, defendants were not merely passengers in a vehicle stopped for a traffic offense, they were occupants of a vehicle reasonably suspected of involvement in a shooting, and were detained to allow that matter to be investigated.
“To justify a patdown of the driver or a passenger during a traffic stop, however, just as in the case of a pedestrian reasonably suspected of criminal activity, the police must harbor reasonable suspicion that the person subjected to the frisk is armed and dangerous.” (Arizona v. Johnson (2009) 555 U.S. 249, ——— [172 L.Ed.2d 694, 700]; see Osborne, supra, 175 Cal.App.4th at p. 1059.) “[T]he handcuffing of a detained individual does not necessarily convert the detention into a de facto arrest. [Citation.]... [A] police officer may handcuff a detainee without converting the detention into an arrest if the handcuffing is brief and reasonably necessary under the circumstances.” (Osborne, supra, 175 Cal.App.4th at p. 1062.)
At the time the men were removed from the Blazer and handcuffed, they reasonably seemed to be connected to the gunshots. It was nighttime in a remote area of Sacramento County. The officers knew all three men had been convicted of violent felonies. In such circumstances, removing the men from the Blazer to handcuff them as part of the investigative detention was a prudent method of continuing the investigation while protecting the safety of the officers. (See People v. Stier (2008) 168 Cal.App.4th 21, 27-28; Vibanco, supra, 151 Cal.App.4th at pp. 11-12.)
Before the Blazer search began, the men were detained for about the same time it would have taken to process a traffic citation, therefore the length of the detention was not excessive. Nor was there dilatory conduct; the record shows “the police diligently pursued a means of investigation reasonably designed to dispel or confirm their suspicions quickly, using the least intrusive means reasonably available under the circumstances.” (In re Carlos M. (1990) 220 Cal.App.3d 372, 384-385, quoted with approval by People v. Celis (2004) 33 Cal.4th 667, 674-675.) This was not an improper “unnecessary extension of the traffic detention to investigate extraneous matters” (Williams v. Superior Court (1985) 168 Cal.App.3d 349, 359) as Whisenant claims.
Accordingly, the detention was not excessive in manner or duration. As discussed in the next section, probable cause to arrest was discovered when the men were removed from the Blazer.
4. Search of the Blazer
In their opening briefs, defendants contended the Blazer search was not a valid search incident to a lawful arrest and was not supported by probable cause. After the opening briefs were filed, the United States Supreme Court decided Arizona v. Gant (2009) 556 U.S. ——— [173 L.Ed.2d 485] (Gant), holding: “Police may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest.” (Id. at p. ——— [173 L.Ed.2d at p. 501].) In their reply briefs, defendants argue the Blazer search was unlawful because all three occupants were already handcuffed and in patrol cars.
Although defendants are correct that the Blazer search could not be justified by the first part of the Gant holding, the search was justified by the second part, because the officers had probable cause to arrest all three defendants when they saw the ballistic vest in plain sight, giving them reason to believe the Blazer had other evidence of the arrest offense.
Defendants assert the ballistic vest, critical to probable cause, was found during the Blazer search. But viewing the evidence in the light favorable to the trial court’s ruling (Munoz, supra, 167 Cal.App.4th at pp. 132-133), Deputy Harris saw the vest in plain sight when the men were taken out of the Blazer. His relevant testimony is as follows:
1) “Q. After the defendants are removed from the vehicle, what do you do next?
“A. We search the vehicle.
“Q. When you first look into the vehicle, do you see anything at the point that you first look inside?...
“A. There was a ballistic vest in plain view on the back seat of the vehicle.
“Q. Now with — given your understanding of the defendants’ criminal histories, is that a crime?
“A. Yes.
“Q. Are each of the defendants arrestable in your mind at that point?
“A. Yes.
“Q. Can the car be impounded in your mind at that point?
“A. Yes.
“Q. What else do you see as you just look in the car?
“A. An open container of alcohol.”
2) “Q. So it is only when you order them out of the car, right -
“A. Right.
“Q. -- that you are able to see what you identify as a bullet-proof vest which... you at that point know is contraband; is that right?
“A. Right.”
3) “Q. Now at that point when backup arrives, how do you decide that you are going to get into that car to make the search?
“A. I believed it was necessary for my safety and for the safety of my fellow officers to ensure that there were no firearms in the vehicle.
“Q. And what do you do then?
“A. We look in the vehicle and find that there is a ballistic vest on the back seat.”
Although these passages contain some ambiguity, taking them together, the trial court could rationally find that as the men were taken out of the Blazer, the vest was in plain sight, that is, seen before the officers entered the Blazer to search it. In fact, this is how the parties interpreted the evidence in the trial court. Defense counsel focused on the claim it was illegal to take the men out of the Blazer, contending Deputy Harris could not see the vest until they were taken out of the Blazer; the prosecutor argued the men could be arrested once the vest was seen. These arguments comport with our conclusion that the testimony, albeit not crystalline, supports the fact that the vest was in plain sight before the search of the Blazer began.
Because it is unlawful for convicted felons to possess such a vest (see Pen. Code, § 12370, subd. (a)), once Deputy Harris saw the vest he had probable cause to arrest all three men.
At that point, Deputy Harris merely needed a “reasonable basis to believe” that the Blazer contained evidence pertaining to the offense of arrest. (Gant, supra, 556 U.S. at p. ——— [173 L.Ed.2d at p. 496]; Osborne, supra, 175 Cal.App.4th at pp. 1063-1065.) Having heard gunshots he linked to the Blazer, having identified the occupants as violent felons, and having seen a ballistic vest in the Blazer, Deputy Harris had a reasonable basis to seize the vest and search the Blazer for other evidence of the offense. Accordingly, the Blazer search was lawful.
For all of the above reasons, we conclude the trial court properly denied the motion to suppress evidence.
II. Whisenant’s Strikes
Defendant Whisenant contends the trial court abused its discretion by denying his Romero motion to strike one of his strikes, and for that reason his sentence constitutes impermissible cruel punishment under the Eighth Amendment to the United States Constitution. We disagree.
A. Facts Regarding the Romero motion
Whisenant had two strike convictions for assault with a firearm (Pen. Code, § 245, subd. (a)(2)) committed at separate times. Whisenant’s written Romero motion argued his last strike was seven years old and that he had not been in trouble since his release from prison. He had been regularly employed, was married with five children, and was a dutiful parent, helping to coach one child’s sports teams and attending school functions. He provided a number of letters of support. Whisenant argued the evidence of the current offense was weak and that his last strike arose from a plea he entered after several hung juries. He also contended the present crimes were victimless crimes.
The People opposed the Romero motion. In part the People contended the possession of three loaded pistols by three convicted felons—known gang members with long criminal records—was an aggravating circumstance.
The People also set forth a statement of Whisenant’s criminal history, as did the probation report, and because Whisenant did not interpose any objections, we presume those documents accurately reflect his criminal history. (See People v. Evans (1983) 141 Cal.App.3d 1019, 1021.)
After juvenile matters involving stolen cars, as an adult, Whisenant was convicted in 1992 of second-degree burglary, and after he violated probation, he was sent to prison. Also in 1992 he was convicted of misdemeanor possession of a firearm by a felon. In 1994, Whisenant wounded a person by shooting from his car, and he was convicted of assault with a firearm and sent to prison. In 1997, he was paroled, but within six months he committed a gang-related shooting from his car, leaving the victim a quadriplegic. He was convicted of assault with a firearm, for the benefit of a street gang, and he was again sent to prison. In 2001, defendant was paroled, and after one return to custody, he was discharged from parole less than three months before the current offenses. Whisenant, Bush, and Ramos were validated members of a criminal street gang.
After hearing argument, including a personal plea by Whisenant, the trial court concluded he was “in many ways the poster child why the three strikes law should be applied.” The Romero motion was denied.
B. Romero Motion
In deciding a Romero motion, the trial 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; see People v. Philpot (2004) 122 Cal.App.4th 893, 905.) We review the ruling under the abuse of discretion standard:
“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.” (People v. Carmony (2004) 33 Cal.4th 367, 376-377 (Carmony); see People v. Myers (1999) 69 Cal.App.4th 305, 310.)
Only in extraordinary circumstances will a career criminal fall outside the scheme’s spirit. (Carmony, supra, 33 Cal.4th at p. 378; People v. McGlothin (1998) 67 Cal.App.4th 468, 474.)
Whisenant’s motion in part argued his strikes were remote. A prior may be deemed remote when it is followed by a long crime-free period. (People v. Philpot, supra, 122 Cal.App.4th at p. 906 [trial court “could not overlook the fact defendant consistently committed criminal offenses for the past 20 years”]; People v. Humphrey (1997) 58 Cal.App.4th 809, 813 [“Where, as here, the defendant has led a continuous life of crime after the prior, there has been no ‘washing out’ and there is simply nothing mitigating about a 20-year-old prior”].) Viewed in this light, there was nothing “remote” about Whisenant’s criminal history. His strikes involved two shootings from cars in which his victims were injured, and he committed the instant crimes within three months of his discharge from parole. He was found with two other gang members in a vehicle that had had three firearms in it before they were discarded, showing a lack of reform. On these facts, the trial court properly rejected the claim of remoteness.
Whisenant argues the current offenses were not violent. The purpose of Penal Code section 12021 is to protect public welfare by precluding the possession of guns by those who are more likely to use them for improper purposes, that is, convicted felons. (People v. Pepper (1996) 41 Cal.App.4th 1029, 1037.) Although defendant did not use a gun in this case, as a matter of law such possession carried the potential for violence. As stated, the strikes involved shootings from cars, and in this case he was with other gang members, armed with guns. Thus, although the current offenses are not technically violent, we are not persuaded that their nature militated in favor of striking a strike. Moreover, “the nonviolent or nonthreatening nature of the [current] felony cannot alone take the crime outside the spirit of the law.” (People v. Strong (2001) 87 Cal.App.4th 328, 344.)
Whisenant takes a portion of the trial court’s comments out of context. Defense counsel stated “So the evidence was very slim against my client. Unfortunately, my client has the worst record and he faces the most severe punishment. [¶] THE COURT: Yes.” On appeal Whisenant states the trial court “noted the ‘slim evidence’ connecting appellant to the instant offense.” This is not a fair reading of the record. The trial court may have been indicating he understood the argument, but more likely was saying “Yes” to the last sentence, agreeing that Whisenant had the “worst record” of the three men.
Based on Whisenant’s record, and the circumstances of this offense, the trial court did not abuse its discretion in concluding he fell within the spirit of the three strikes law.
C. Eighth Amendment Claim
We recently held that a noncapital sentence may violate the Eighth Amendment if “‘an inference of gross disproportionality’” [citation] could be made by weighing the crime and the defendant’s sentence ‘in light of the harm caused or threatened to the victim or to society, and the culpability of the offender.’” (People v. Nichols (2009) 176 Cal.App.4th 428, 435.)
Defendant Whisenant contends his 25-year-to-life sentence violates the Eighth Amendment because his current offenses are “relatively minor,” and were “proven by the barest circumstantial evidence.” We disagree.
Taking the latter point first, counsel does not cite any authority supporting the proposition that the perceived strength or weakness of the evidence is a relevant factor for Eighth Amendment purposes. For lack of authority, we reject the proposition. (See People v. Stanley (1995) 10 Cal.4th 764, 793; People v. Diaz (1983) 140 Cal.App.3d 813, 824.) We also reject counsel’s assertion that the facts “suggest a strong possibility of a person in the wrong place at the wrong time.”
As for the former point, as we have explained above, although the instant crimes did not involve the commission of violence, they were not technical law violations. Defendant, a convicted felon and known gang member, in the company of two other convicted felons who were also gang members, was in a vehicle with a ballistic vest, three pistols and ammunition (although the loaded guns were tossed out of the Blazer later). This was a highly dangerous situation, particularly given that both of defendant’s strikes involved shooting people from cars.
Nor is disproportionality shown by defendant’s references to the sentences for many other crimes, because he fails to account for his strikes in making that argument. For example, he notes that mayhem is punishable by 2, 4 or 8 years. (Pen. Code, §§ 203, 204.) But a person convicted of mayhem with two strikes would receive the sentence defendant received. That mode of argument does not show disproportionality.
Whisenant claims the trial court found the sentence “‘wholly disproportionate’ to the charges.” This again misreads the record. The trial court noted that because Whisenant had two strikes, he faced a sentence that otherwise would be disproportionate to the sentences of Bush and Ramos. The trial court said “if you focus just on this particular offense, then it seems wholly disproportionate to give somebody 25 years to life[.]” In context, the trial court did not find the three strikes sentence to be disproportionate, given Whisenant’s criminal record.
In People v. Cooper (1996) 43 Cal.App.4th 815, Cooper had two robbery strikes and his current offense was possession by a felon of a firearm. Noting that the current crime was a serious offense and recidivism justifies “longer sentences for subsequent offenses,” the court held Cooper’s sentence did “not constitute cruel and unusual punishment under the Eighth Amendment.” (Cooper, supra, 43 Cal.App.4th at pp. 824-825.) Whisenant’s current offense, like Cooper’s, is possession by a felon of a firearm, and Whisenant’s strikes, assaults with firearms, are more severe than Cooper’s robbery strikes. Accordingly, we reject his Eighth Amendment claim.
DISPOSITION
The judgment is affirmed.
We concur: ROBIE, J., CANTIL-SAKAUYE, J.