Filed 3/14/13 P. v. Castleman CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Respondent,

v. RICHARD D. CASTLEMAN, Defendant and Appellant. A131730
(Humboldt County Super. Ct. No. CR1003911)

Defendant was convicted of sale or transportation of heroin, possession of methamphetamine, and providing false informa tion to a police officer after he was found to be storing a significant quan tity of narcotics in his pants and jacket. As a result of three prior convictions for ro bbery, defendant was sentence d under the “Three Strikes” law (Pen. Code, § 667, subds. (b)–(i)) to a term of 25 ye ars to life imprisonment.
Defendant contends the trial court erred in denying his reque sts to represent himself at trial and to appoint substitute counsel and in granting his request for a mistrial. He also
contends his sentence constitu ted cruel and unusua l punishment and asserts the court
should have stricken his prior robbery convictions. We affirm.
I. BACKGROUND Defendant was charged in an amended in formation, filed December 15, 2010, with possession for sale of heroin (Health & Saf. Code, § 11351), sale or transportation of heroin (Health & Saf. Code, § 11352, subd. (a)), possession of meth amphetamine (Health & Saf. Code, § 11377, subd. (a )), and providing false informa tion to a police officer (Pen. Code, § 148.9, subd. (a)). Each of the drug-re lated counts also alleged three prior serious2 felony convictions (Pen. Code, § 667, subds . (b)–(i)) and five prior prison terms (Pen. Code, § 667.5, subd. (b)). All three prior serious felony convictions were for robbery (Pen. Code, § 211; Pen. Co de, former § 213.5; see People v. Colbert (1988) 198 Cal.App.3d 924, 926 & fn. 1), one dating from 19 86 and the two others from 1992. The drugs were found on de fendant’s person during sear ches conducted after he was detained on suspicion of a probation violation and placed in the back seat of a police
car. Defendant’s defense was based on the testimony of his girlfriend, who claimed she had placed the drugs on him when she was permitted by police to embrace him in the police car. When the parties first appeared for tr ial on December 13, 2010, defense counsel made an oral motion for a continuance, aski ng for additional time to locate a witness who might have observed the girlfri end’s planting of evidence. The court denied the motion for lack of diligence in pursuing the witness. Soon after, defendant move d for leave to discharge his appointed attorney and represent himself at trial. Defendant not ed he had already made three unsuccessful motions to replace his appointed counsel ( People v. Marsden (1970) 2 Cal.3d 118 ( Marsden )) and told the court he believed he had a better chance of success if able to conduct the defense in his own way. 1 The prosecution opposed the motion as untimely, having been made on the day set for trial, a nd defendant conceded he was not prepared to proceed to trial if his request was granted. Expressing the belief defendant’s motion was made as a response to the denial of his most recent Marsden motion, the court told
defendant it was “not inclined” to grant a continuance. The court asked defendant for his preference, assuming a continuance was una vailable. Under those circumstances, defendant responded, he would prefer to continue with new counsel and requested
another Marsden hearing.

1 The most recent Marsden motion had been denied af ter a hearing four days earlier.3 The court conducted the fourth Marsden hearing the same day. Explaining his dissatisfaction with appointed counsel, defend ant told the court he wanted to call as witnesses three persons who had been present at the time of hi s arrest. Defendant insisted all three witnesses were “personal snitches” of the arresting police officer and all three were represented by the office of conflict counsel, the same office that employed his attorney. Defendant believe d those representations and the representation of his girlfriend created a conflict of interest for counsel. Defendant also believed the warrant
on which he had been detain ed should be challenged beca use it was based on false
information. Defense counsel told the court he was empl oyed as a public defender in the office of conflict counsel and had been practicing as a criminal defense attorney in Humboldt County for six years. Addre ssing the three potential witnesse s, counsel explained one of
them was the owner of the vehicle in whic h defendant was sitting at the time of his
detention. Once the vehicle was determined not to have been stolen , that person had been cleared by police of any further involvement in the case. The other two were men who had been present at the scene of the arrest when police first arrived but left prior to defendant’s detention. Counsel believed, ba sed on the police report, none of the three could give relevant testimony and noted defendant had never before mentioned to him the two witnesses who left the scene prior to the detention. Further, counsel had no information to sugges t the witnesses were informan ts for the police. Counsel acknowledged representing the driver, but said he was unaware of any representation by his office of the other two persons. He be lieved there was no conflict with respect to defendant’s girlfriend because her case had b een closed. Regardi ng a challenge to the warrant, counsel said it would not invalidat e the detention even if successful, since defendant was known to the arresting officer as a parolee who could be searched without probable cause. The court denied the motion, telling defend ant, “[J]ust because an attorney doesn’t do what you say doesn’t mean that they aren’t prepared to represent you fully and4 completely in regard to the case . . . . [¶] . . . [¶] . . . [Defense counsel] is prepared, looking out for your best interests, desp ite your concerns otherwise.” On the day designated for commencement of jury selection, an unfamiliar attorney appeared with defense counsel, telling the court, “I’ve b een asked by [defendant] to substitute in today.” When the court learne d the attorney was not prepared to proceed, having not reviewed any trial materials, it pr essed her for a commitm ent to see the case through, saying, “I’m not saying I’m going to grant a continuance based on that, but I need your personal representations on the reco rd that you are—have been retained for trial and that you would not be asking to be relieved as counsel because of lack of compensation as it relates to going to trial.” When the attorn ey conceded she had not yet been paid, the court re sponded, “I guess what I would tell yo u is that if the Court allows you in as counsel today and continues the ma tter, the Court is stating now that you will most likely not be able to ask the Court to be relieved if you are not fully compensated for that.” After discussing the matter privatel y with defendant, the new attorney declined the representation.
Defendant then asked the court about its decision not to grant him a continuance to prepare to represent himself, implicitly cont rasting his situation with that of the new attorney. The court responded, “I don’t think your request to be self-represented was made based on the statutory requirements that are there and that it wa s simply a result of your dissatisfaction with counsel.” The cour t explained it was willing to give more time
to new counsel because she mi ght have been able to prov ide defendant with effective representation. When, a short time later, defendant rene wed his request for leave to represent himself and a continuance to prepare, the cour t clarified its ruling. It noted defendant was entitled to represent himself as a matter of constitutional right, but only if “the request [is made] within a reasonable time before trial. [¶] . . . [T]h e defendant’s technical legal knowledge is irrelevant to the Cour t’s assessment of the defendant’s knowingly exercising a right to self-representation.” The court said its denial was based on defendant’s failure to make a timely request.5 On the morning following jury selection, December 22, defense counsel informed the court he had just been provided with se ven hours of recordings of jailhouse visits between defendant and his girlfri end, who was to be the primary defense witness. While not contending the late disclosure constitu ted misconduct by the pr osecution, defense counsel told the court he would require a con tinuance to review the materials or, in the alternative, exclusion of the tapes or a mist rial. Counsel estimated he would need 10 court days to review the mate rials fully and discuss them w ith defendant. The prosecutor told the court he had a “prepaid vacation” scheduled for the second week of January. In ruling on the request, the court recogn ized it might not be possible to resume trial at the end of the continuance, depe nding on the content of the tapes. Defense
counsel confirmed he could not “assure” the c ourt that trial could resume after a 10-day break. The court granted a continuance un til December 28, intendi ng on that day to entertain a further request for time, if necessary. Upon hearing the court’s ruling, defens e counsel, concerne d he would not be prepared to resume trial that quickly, requested a mistrial and offered defendant’s waiver of double jeopardy rights. The court confir med the waiver with defendant. Noting the late disclosure could be unduly prejudicial to defendant, the court granted the motion. A new trial was scheduled for slightly ov er a month later, on January 24, 2011. Jury selection ultimately be gan on February 14. Defend ant was convicted on three of the counts, transportation, simple posse ssion, and providing false information. A mistrial was declared as to the charge of po ssession for sale after th e jury was unable to agree on a verdict. At a later court trial, th e enhancement allegations were found true. At sentencing, the trial court granted de fendant’s motion to strike the prior prison term allegations as to all counts, but it d eclined to strike the prior serious felony conviction allegations as to the transporta tion count. Accordi ngly, defendant was sentenced on that count to a term of 25 years to life. In explaining its decision not to strike the prior strike convictions, the cour t noted that although th e convictions occurred “a long time ago” in 1986 and 1992, defendant had three conv ictions in those two years, with another felony conviction between them. In addition, he had other convictions since6 1992, including several felony and misdemeanor convictions in 1998. As a result, the court concluded, “[T]here has been very little time that [defen dant] has not been committing offenses, except for th e time that he’s in prison, although he does have the escape conviction even related to that.” His performance on parole ha d been consistently poor. The present offense involved “a larg e amount” of heroin that was individually packaged, and defendant exhi bited no acceptance of resp onsibility for his criminal conduct. Given his life circumstances, the cour t concluded, his “prospects are poor for a stable, law-abiding life.”
II. DISCUSSION
A. Defendant’s Faretta Motion
Defendant first contends th e trial court abused its di scretion in denying his motion for self-representation, generally referred to as a Faretta motion. ( Faretta v. California (1975) 422 U.S. 806 ( Faretta ).) “A trial court must grant a defendant’s request for self-representation if the defendant unequivocally asserts that right within a reasonable time prior to the commencement of trial, and makes his request voluntarily, knowingl y, and intelligently. [Citations.] As the high court has stated, however, ‘ Faretta itself and later cases have made clear that the right of self-representa tion is not absolute.’ [Citations.] Thus, a
Faretta motion may be denied if the defendant is not competent to represent himself [citation], is disruptive in the courtroom or engages in misconduct outside the courtroom that ‘seriously threatens the co re integrity of the trial.’ [C itations.] [¶] Likewise, we have long held that a self-represen tation motion may be denied if untimely. [Citation.] . . . ‘[O]nce a defendant has chosen to proceed to trial represented by counsel,’ a defendant’s motion for self-representation is ‘addressed to the sound discretion of the court.’ ” ( People v. Lynch (2010) 50 Cal.4th 693, 721–722, fn. omitted, disapproved on other grounds in People v. McKinnon (2011) 52 Cal.4th 6 10, 637–638, 643.) This case is controlled by People v. Horton (1995) 11 Cal.4th 1068 ( Horton ), the circumstances of which are indistinguis hable from those presented here. In Horton , the
defendant made a Faretta motion on the day of trial, immediately after his Marsden7 motion was denied. The trial court conclude d defendant was attemp ting to obstruct the prosecution and delay trial, and it denied the motion as untimely. ( Horton, at p. 1110.) The Supreme Court affirmed, holding, “In or der to invoke the constitutionally mandated unconditional right of self-repr esentation, a defendant must assert that right within a reasonable time prior to trial. The latter re quirement serves to prevent a defendant from misusing the motion to delay unjustifiabl y the trial or to obstruct the orderly administration of justice. [Citation.] If the motion is untimely—i.e., not asserted within a reasonable time prior to tria l—the defendant has the burden of justifying the delay. [Citation.] ‘[A] defendant shou ld not be permitted to wait until the day preceding trial before he moves to represent himself and re quests a continuance in order to prepare for trial without some showing of reasonable cause for the lateness of the request. In such a case the motion for self-representation is addr essed to the sound discretion of the trial court . . . .’ [Citation.] [¶] The record ampl y supports the trial court’s action in denying defendant’s untimely request after finding a l ack of any justification for the delay.” ( Id. at pp. 1110–1111.) Defendant similarly failed to justify his delay in making the Faretta motion. No explanation for the delay was offered, and th e circumstances tended to confirm the trial
court’s intuition that defendant made the motion to unburden himself of appointed
counsel rather than from a sincere desire to serve as his own attorney. While, as defendant points out, ther e was no finding he intended to disrupt or delay the proceedings, as in Horton, the Supreme Court did not rely on the finding of dilatory
intent to affirm that case. Gr anting the request would have the effect of delay, and, in the absence of any justification, this was sufficient under Horton . Accordingly, the trial court properly exercised its discretion to deny the Faretta motion as untimely.
Defendant first contends his motion would have been considered timely under the interpretation of Faretta applied in certain federal appellate courts. In the event of any discrepancy in the application of the United States Supreme Court’s precedents regarding self-representation, however, we are bound to follow our own high c ourt’s rulings. As8 discussed above, the trial court’s ruling was a proper exercise of discretion under those rulings. Citing the trial court’s purported willin gness to grant additional time to permit defendant to retain a new lawyer, he next contends allowing him time to prepare his own representation would not have un duly disrupted the proceedings . Contrary to defendant’s contention, the trial court di d not offer to grant a con tinuance to accommodate new counsel. The court merely asked whethe r the attorney would commit firmly to representation assuming a continuance would be granted. Yet even if the court had been willing to tolerate a trial delay to accomm odate defendant’s choice of counsel, that willingness would not retrospectively justif y defendant’s own delay in asserting his
Faretta rights. Further, granting defendant’s motion not only would have required delaying the scheduled trial for a longer peri od than would be nece ssary for experienced counsel, but also would have risked causing additional delay if de fendant found himself unequal to the task and request ed reappointment of counsel. The longer continuance and the potential for disruption in the event defe ndant requested reappointment of counsel justified different treatment of defendant’s request to represent himself and any request for time by newly retained counsel. Defendant also argues the trial court ba sed its ruling on impr oper considerations, such as defendant’s lack of legal experien ce. On the contrary, while the trial court initially expressed concern abou t defendant’s lack of traini ng, it ultimately denied the motion on grounds of untimelin ess, recognizing “[t]he defendant’s technical legal knowledge is irrelevant to the Court’s assessment of the defendant’s knowingly exercising a right to self-representation.” Th e court also cited its suspicion defendant’s motion was made in response to the denial of his Marsden motion rather than a genuine
desire to serve as his own atto rney. This, too, would have been a proper reason to deny the motion because the request for self-representation was “not unequivocal.” ( People v.
Scott (2001) 91 Cal.App.4th 1197, 1205–1206.) Even if the trial court’s reasoning had been flawed, however, “ ‘ “we review the ruling, not the c ourt’s reasoning and, if the9 ruling was correct on any grou nd, we affirm.” ’ ” ( People v. Rogers (2009) 46 Cal.4th 1136, 1162, fn. 14.) Finally, defendant argues the court a bused its discretion in “conditioning [defendant’s] right to represent himself on th e court’s granting of a continuance.” The argument badly misstates the record. In fa ct, the court initially informed defendant it
would not be inclined to grant a continuance if he insist ed on assuming his own defense. Upon hearing he would not be granted more tim e, defendant withdrew his request. Later, when defendant reasserted his desire to repr esent himself, the court denied the request as untimely. At no point did the cour t condition the grant of defendant’s Faretta motion on
a continuance. 2

B. Defendant’s Marsden Motion
Defendant next contends th e trial court abused its disc retion in denying his fourth
Marsden motion, discussed above.
“ ‘When a defendant seeks substitutio n of appointed counsel pursuant to [ Marsden ], “the trial court must permit the de fendant to explain the basis of his contention and to relate specif ic instances of inadequate performance. A defendant is
entitled to relief if the record clearly shows th at the appointed counsel is not providing adequate representation or that defendant and counsel have become em broiled in such an irreconcilable conflict that ineffective representa tion is likely to result.” ’ [Citation.] ‘A trial court should grant a defendant’s Marsden motion only when the defendant has made “a substantial showing that failure to order substituti on is likely to result in constitutionally inadequate representation.” ’ [Citation.] [¶] ‘We revi ew the denial of a
Marsden motion for abuse of discretion.’ [Citation.] ‘Denial is not an abuse of
discretion “unless the defenda nt has shown that a failure to replace counsel would

2 The case cited by defendant as authority for his argument, People v. Sherrod (1997) 59 Cal.App.4th 1168, merely holds that, if a Faretta motion is granted on the day set for trial, the defendant must be given a fair opportunity to pr epare for trial. ( Sherrod, at p. 1174.) It does not hold that an untimely motion must be granted when a continuance would be necessary to permit such preparation.10 substantially impair the de fendant’s right to assistance of counsel.” ’ ” ( People v.
Streeter (2012) 54 Cal.4th 205, 230.) The presentations at the Marsden hearing provided no indication either that defense counsel’s representation was inadequa te or that defendant and counsel had an irreconcilable conflict. Defendant’s primary concern at the hearing was his attorney did not intend to call as witnesses certain person s defendant believed to have relevant and exculpatory information. It has long been held that a diffe rence over trial tactics does not constitute an irreconcilable conflict. ( People v. Myles (2012) 53 Cal.4th 1181, 1207.) While defendant argues the record demonstrat es “such an extensive disagreement over procedural and substantive t actics as signaled a virtual st andstill in any ‘assistance of counsel,’ ” the contrary is true. The reco rd demonstrates counsel was well aware of defendant’s views, had taken them seriously enough to investigate them thoroughly, and had concluded they were unsupported. This is the very opposite of a broken relationship.
Defendant also contends the hearing demonstrated defendant’s “trust and relationship with appointed counsel had irreme diably broken down.” Lack of trust by a defendant in his attorney does not alone ju stify a substitution of appointed counsel. “ ‘If
a defendant’s claimed lack of tr ust in, or inability to get alon g with, an appointed attorney were sufficient to compel ap pointment of substitute counse l, defendants effectively would have a veto power over any appointmen t, and by a process of elimination could obtain appointment of their preferred attorney s, which is certainly not the law.’ ” ( People v. Myles, supra, 53 Cal.4th at p. 1207.) In any event, defendant has not demonstrated the fa ilure to appoint substitute counsel “substantially impair[ed]” his Si xth Amendment right to counsel. ( People v. Streeter, supra, 54 Cal.4th at p. 230.) Defendant c ites no impairment at all of counsel’s performance at trial as a resu lt of the purported conflict. He argues only that he might have accepted a favorable plea offer if he had been given replacement counsel, but there is nothing in the record to support such speculation.11 C. The Mistrial Defendant argues the trial court erred in “d eclaring a mistrial in order to effectuate a longer continuance than it was willing to gran t.” Although couched as a challenge to the trial court’s grant of his motion for a mi strial, defendant’s argu ment is, at best, a challenge to the trial court’s refusal to gr ant his attorney’s request for a 10-court-day
continuance. “ ‘ “ ‘The granting or denial of a moti on for continuance in the midst of a trial traditionally rests within the sound discretion of the trial judge who must consider not only the benefit which the moving party antic ipates but also the likelihood that such benefit will result, the burden on other witne sses, jurors and the court and, above all, whether substantial justice will be accomp lished or defeated by a granting of the motion.’ ” [Citation.] In th e absence of a showing of an abuse of discretion and prejudice to the defendant, a denial of a motion for a continuance does not require reversal of a conviction. [Citation.]’ [C itations.] Defendant bears the burden of establishing that denial of a continuance request was an abuse of discretion.” ( People v.
Panah (2005) 35 Cal.4th 395, 423.)
We find no abuse of discretion in th e court’s decision to grant a tentative continuance of six calendar days, rather than the full 10-court-day continuance requested by defense counsel. Importantly, the court did not suggest the six-day continuance was final; its plan was to hold a further conferen ce at the expiration of the continuance to determine the appropriate steps once defense co unsel had reviewed the tapes. The court expressly mentioned the possibility of entert aining a request for a further continuance at
that time. There is nothing unreasonable about this ruling. Defense counsel was faced with reviewing seven hours of audio tape. That was, literally, a day’s work. If the results of
the review dictated a substan tial change in trial strategy fo r the defense, requiring further time, counsel was given the option of re questing further time when the parties
reconvened. The trial court’s continuance of six calendar days was not dramatically different from counsel’s request for 10 court days, and any hardship was mitigated by the12 court’s expressed willingness to consider a furt her continuance if justified. There is no reason to believe, as defendant contends, the trial court imposed the shorter continuance for the purpose of forcing defens e counsel to request a mistrial. 3 As noted above, defendant contends the trial court erred in granting the motion for a mistrial, but we conclude he waived the right to challe nge this ruling by expressly consenting to the court’s grant of the motion. The general rule is that a defendant waives any double jeopardy claim by consenti ng to a motion for mistrial. (E.g., People v. Batts (2003) 30 Cal.4th 660, 679–6 80.) By the same reasoning, the consent waives any claim for other relief resulting from the grant of the motion. In addition, defendant cites no prejudice fro m the grant of a mistrial. At less than two months, the delay in his trial was brie f, and he does not contend there was any adverse impact on his trial as a result. While defendant claims a denial of his “ ‘valued right to have his trial completed by a particular tribunal’ ” ( Renico v. Lett (2010) 559 U.S. 766, ___ [130 S.Ct. 1855, 1867]), th is particular tribuna l had not even heard opening arguments, let alone evid ence. The present situation is simply not comparable to the typical double jeopardy case, in which a mist rial is declared in the midst, or after the completion, of testimony. In any event, the right he cites is protected by the prohibition against double jeopardy. ( Ibid. ) Because defendant makes no claim of a violation of his right against double jeopardy, this right could not have been wrongfully denied. 4

3 In the case on which defendant primarily relies, People v. Gatlin (1989) 209 Cal.App.3d 31, the court adopted a virtually identical approach to the late disclosure of discovery materials, allowi ng counsel to review the ma terials over a weekend. The trial court thereafter denied a continuance and motion for mistrial, rulings that were affirmed on appeal. ( Id. at pp. 38–41.) It theref ore provides no support for his argument.

4 Because there was no prejudice, defe ndant cannot prevail on a claim of ineffective assistance of counsel base d on the motion for a mistrial. ( People v. Hernandez (2012) 53 Cal.4t h 1095, 1104–1105.)13 D. Refusal to Strike Defe ndant’s Prior Convictions
Defendant contends the trial court abused its discretion in denying his Romero motion to strike his prior serious felony convictions. ( People v. Superior Court (Romero) (1996) 13 Cal.4th 497 ( Romero ).) The narrow range of our task in reviewing the denial of a Romero motion was
defined in People v. Carmony (2004) 33 Cal.4th 367: “ ‘[T ]he Three Strikes initiative, as well as the legislative act embodying its terms, was intended to restrict courts’ discretion in sentencing repeat offenders.’ [Citation.] To achieve this end, ‘the Three Strikes law does not offer a discretionary sentencing choice, as do other sentencing laws, but establishes a sentencing requirement to be ap plied in every case where the defendant has at least one qualifying strike, unless the sent encing court “conclud[es] that an exception to the scheme should be made because, fo r articulable reasons which can withstand scrutiny for abuse, this defend ant should be treated as thoug h he actually fell outside the Three Strikes scheme.” ’ [Citation.] “Consistent with the language of and the legislative intent behind the three strikes law, we have established stringent standards that sentencing courts must follow in order to find such an exception. ‘[I] n ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or findi ng under the Three Strikes law, on its own motion, “in furtherance of justice” pursuan t to Penal Code section 1385(a), or in reviewing such a ruling, the court in questi on must consider whether, in light of the nature and circumstances of his present fel onies and prior serious and/or violent felony convictions, and the particulars of his b ackground, 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 convi cted of one or more serious and/or violent felonies.’ [Citation.] “Thus, the three strikes law not only establishes a sentencing norm, it carefully circumscribes the trial court’s power to depa rt from this norm and requires the court to explicitly justify its decision to do so. In doing so, the law create s a strong presumption that any sentence that conforms to these se ntencing norms is both rational and proper.14 “In light of this presumption, a trial c ourt will only abuse its di scretion in failing to strike a prior felony conviction allegation in limited circumstances . For example, an
abuse of discretion occurs where the trial c ourt was not ‘aware of its discretion’ to dismiss [citation], or where the court consid ered impermissible factors in declining to dismiss [citation]. Moreover, ‘the sentencing norms [established by the Three Strikes law may, as a matter of law,] produce[] an “arbitr ary, capricious or patently absurd” result’ under the specific facts of a particular case. [Citation.] “But ‘[i]t is not enough to show that reasonable people might disagree about whether to strike one or more’ prior convicti on allegations. [Citation.] Where the record is silent [citation], or ‘[w]he re the record demonstrates that the trial court balanced the relevant facts and reached an impartial decisi on in conformity with the spirit of the law, we shall affirm the trial court’s ruling, even if we might have ruled differently in the first instance’ [citation]. Because the circumstance s 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 coul d disagree that the criminal falls outside the spirit of the three strikes sc heme must be even more extrao rdinary. Of course, in such an extraordinary case—where the re levant factors described in [ People v. Williams (1998) 17 Cal.4th 148 ( Williams )], manifestly support the st riking of a prior conviction
and no reasonable minds c ould differ—the failure to strike would constitute an abuse of discretion.” ( People v. Carmony, supra, 33 Cal.4th at pp. 377–378.)
This is not an extraordinar y case. The trial court was clearly aware of the scope of its discretion and the factors guiding that discre tion. The court found, in essence, that defendant’s prior serious felony convictions, hi s other convictions, and “the particulars of his background, character, and prospects” ( Williams, supra, 17 Cal.4th at p. 161), suggest he is the type of repeat offender intended to be covered by the Three Strikes law. Defendant argues his convictions should have been stricken because they occurred many years ago, but the nature and tim ing of the prior strikes is only one factor to be considered15 under Romero . As the trial court noted, defendant no t only suffered the strike convictions but has spent substantial time in prison in the interim years as a result of other offenses, consistently failing to succeed on parole. There is no basis for reversing the court’s decision not to strike the prio r serious felony convictions.
E. Cruel and Unusual Punishment Defendant contends his 25-year-to-life sentence violates the Eighth Amendment proscription against cruel and unusual punishment. Defendant waived this challenge
when he failed to raise it in the trial court. ( People v. Norman (2003) 109 Cal.App.4th 221, 229.) Even if there were no waiver, how ever, we would find no merit in the claim. “The Eighth Amendment prohibits im position of a sentence that is ‘grossly disproportionate’ to the severity of the crime. [Citations.] In a noncapital case, however, successful proportionality challenges are ‘ “excee dingly rare.” ’ [Citation.] In the rare case where gross disproportiona lity can be inferred from (1) the gravity of the offense and harshness of the penalty, the court will consider (2) sentences imposed for other offenses in the same jurisdiction and (3) se ntences imposed for commission of the same crimes in other jurisdictions. [Citation.] ‘[I]t is only in the rare case where a comparison
of the crime committed and the sentence imposed leads to an inference of gross disproportionality that the second and third criteria come into play.’ ” ( People v. Haller (2009) 174 Cal.App.4th 1080, 1087–1088.) Eighth Amendment challenges to Three St rikes sentences have been upheld in nearly all cases. In the leading case of Ewing v. California (2003) 538 U.S. 11, 20–21, for example, the Supreme Court upheld agai nst constitutional challenge an indeterminate life sentence for a theft of golf clubs, sup ported by prior serious felony convictions for robbery and burglary. Our own Supreme Court’ s most recent consideration of the issue, In re Coley (2012) 55 Cal.4th 524, concerned a triggering conviction for the failure to register as sex offender. Ho lding that “in determining the gravity of petitioner’s conduct in evaluating an Eighth Ame ndment challenge to a sentence imposed under a recidivist sentencing statute, we must consider not on ly petitioner’s triggering offense but also the nature and extent of petitioner’s criminal history,” the cour t affirmed an indeterminate16 life sentence for a defendant who had refused to register and whose prior offenses were “particularly heinous.” ( Id. at p. 562.) The court suggeste d a life sentence for failure to register under the Three Strikes law is unconstitutional only if the failure was “a negligent oversight” in the course of a pattern of compliance. ( Id. at p. 551.) Measured against these precedents, there is no basis for defendant’s claim of cruel and unusual punishment. His triggering offense, the transportation of commercial quantities of heroin, was serious. It was in no sense a “negligent oversight.” ( In re Coley, supra, 55 Cal.4th at p. 551.) His past co nduct involved thre e convictions for robbery and a series of lesser crimes, such as drug possession, jail escape, and burglary, which occurred periodically th roughout his life. While the sentence imposed might be disproportionate if the triggering offense were considered in isolation, in reviewing a
conviction under the Three Strikes law we vi ew the conviction in the context of the defendant’s past conduct. From that pers pective, we find no gr oss disproportionality. (See People v. Mantanez (2002) 98 Cal.App.4th 354, 36 6–367 [no Eighth Amendment
violation when Three Strikes sentence im posed for possession of heroin and receiving stolen property when defenda nt had long history of burgla ry and narcotics offenses].)
F. Proposition 36 In a letter brief filed November 9, 2 012, defendant requested his sentence be
vacated and the matter remanded to the trial court for resentencing pursuant to recently approved Proposition 36, the Thr ee Strikes Reform Act of 2012 (the Act). While not necessarily disputing defendant’s entitlement to relief under the Act, the Attorney
General contends defendant is required to follow the proce dure set out in the Act for existing prison inmates. We agree and decline to vacate his sentence. As explained in People v. Yearwood (2013) 213 Cal.App.4th 161 ( Yearwood ), “[t]he Act changes the requirements for se ntencing a third strike offender to an indeterminate term of 25 years to life imprisonment. Under the original version of the
three strikes law a recidivist with two or more prior strike s who is convicted of any new felony is subject to an indeterminate life se ntence. The Act diluted the three strikes law by reserving the life sentence for cases where the current crime is a serious or violent17 felony or the prosecution has pl ed and proved an enumerated disqualifying factor. In all other cases, the recidivist will be sentenced as a second strike offender. [Citations.] The Act also created a postconviction release pr oceeding whereby a pris oner who is serving
an indeterminate life sentence imposed pursuant to th e three strikes law fo r a crime that is not a serious or violent felony and who is not disqualified, may have his or her sentence
recalled and be sentenced as a second strike offender unless the court determines that resentencing would pose an unreasonable ri sk of danger to public safety.” ( Id. at pp. 167–168.) Like defendant here, the defendant in Yearwood was convicted and sentenced to
an indeterminate life sentence under the Thre e Strikes law prior to the approval of the Act. On direct appeal from his conviction, he requested the court vacate his sentence and remand for resentencing under the Act. ( Yearwood, supra, 213 Cal.App.4th at p. 168.) In declining and requiring the defendant to pursue a petition fo r recall of sentence in the trial court under new section 1170.126, Yearwood explained the issue turns on whether the Act “appl[ies] retroactively to prisoners who were sentenced prior to the Act’s effective date but whose judgments were not final as of that date.” ( Yearwood, at p. 168.) Following an extensive analysis under In re Estrada (1965) 63 Cal.2d 740, Yearwood concluded the Act was not intended to ap ply retroactively to such persons. ( Yearwood, at pp. 171–178.) As a resu lt, these defendants must seek relief through a petition for recall, the specified postconviction remedy. We find no basis for disagreeing with Yearwood ’s analysis or its result and, solely on this ba sis, decline to vacate defendant’s sentence under the Act. We express no opinion on th e proper disposition of any petition for recall he might file in the trial cour t pursuant to section 1170.126.18 III. DISPOSITION The judgment of the trial court is affirmed.

_ ____________ ____________ Margulies, J.

We concur:

_____________ ____________ Marchiano, P.J.

_____________ ____________ Banke, J.