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NOT TO BE PUBLISHED IN OFFICIAL REPORTS 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 This opinion has not been certified for publication 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 information to a police officer after he was found 

to be storing a significant quantity of narcotics in his pants and jacket. As a result of 

three prior convictions for robbery, defendant was sentenced under the “Three Strikes” 

law (Pen. Code, § 667, subds. (b)–(i)) to a term of 25 years to life imprisonment. 

Defendant contends the trial court erred in denying his requests to represent himself at 

trial and to appoint substitute counsel and in granting his request for a mistrial. He also 

contends his sentence constituted cruel and unusual punishment and asserts the court 

should have stricken his prior robbery convictions. We affirm. 

I. BACKGROUND 

 Defendant was charged in an amended information, 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 methamphetamine (Health 

& Saf. Code, § 11377, subd. (a)), and providing false information to a police officer (Pen. 

Code, § 148.9, subd. (a)). Each of the drug-related counts also alleged three prior serious 
2

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. Code, former § 213.5; see People v. Colbert (1988) 

198 Cal.App.3d 924, 926 & fn. 1), one dating from 1986 and the two others from 1992. 

 The drugs were found on defendant’s person during searches 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 trial on December 13, 2010, defense counsel 

made an oral motion for a continuance, asking for additional time to locate a witness who 

might have observed the girlfriend’s planting of evidence. The court denied the motion 

for lack of diligence in pursuing the witness. 

 Soon after, defendant moved for leave to discharge his appointed attorney and 

represent himself at trial. Defendant noted 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, and 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 unavailable. 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 after a hearing four days 

earlier. 
3

 The court conducted the fourth Marsden hearing the same day. Explaining his 

dissatisfaction with appointed counsel, defendant told the court he wanted to call as 

witnesses three persons who had been present at the time of his 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 believed 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 detained should be challenged because it was based on false 

information. 

 Defense counsel told the court he was employed 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. Addressing the three potential witnesses, counsel explained one of 

them was the owner of the vehicle in which 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, based 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 suggest the witnesses were informants 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 believed there was no conflict with respect to 

defendant’s girlfriend because her case had been closed. Regarding a challenge to the 

warrant, counsel said it would not invalidate 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 defendant, “[J]ust because an attorney doesn’t 

do what you say doesn’t mean that they aren’t prepared to represent you fully and 
4

completely in regard to the case. . . . [¶] . . . [¶] . . . [Defense counsel] is prepared, looking 

out for your best interests, despite your concerns otherwise.” 

 On the day designated for commencement of jury selection, an unfamiliar attorney 

appeared with defense counsel, telling the court, “I’ve been asked by [defendant] to 

substitute in today.” When the court learned the attorney was not prepared to proceed, 

having not reviewed any trial materials, it pressed her for a commitment 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 record 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 attorney conceded she had not yet 

been paid, the court responded, “I guess what I would tell you is that if the Court allows 

you in as counsel today and continues the matter, 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 privately 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 contrasting 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 was simply a result of 

your dissatisfaction with counsel.” The court explained it was willing to give more time 

to new counsel because she might have been able to provide defendant with effective 

representation. 

 When, a short time later, defendant renewed his request for leave to represent 

himself and a continuance to prepare, the court 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]he defendant’s technical 

legal knowledge is irrelevant to the Court’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 seven hours of recordings of jailhouse visits 

between defendant and his girlfriend, who was to be the primary defense witness. While 

not contending the late disclosure constituted misconduct by the prosecution, defense 

counsel told the court he would require a continuance to review the materials or, in the 

alternative, exclusion of the tapes or a mistrial. Counsel estimated he would need 10 

court days to review the materials fully and discuss them with 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 recognized it might not be possible to resume 

trial at the end of the continuance, depending on the content of the tapes. Defense 

counsel confirmed he could not “assure” the court that trial could resume after a 10-day 

break. The court granted a continuance until December 28, intending on that day to 

entertain a further request for time, if necessary. 

 Upon hearing the court’s ruling, defense counsel, concerned he would not be 

prepared to resume trial that quickly, requested a mistrial and offered defendant’s waiver 

of double jeopardy rights. The court confirmed 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 over a month later, on January 24, 2011. 

 Jury selection ultimately began on February 14. Defendant was convicted on three 

of the counts, transportation, simple possession, and providing false information. A 

mistrial was declared as to the charge of possession for sale after the jury was unable to 

agree on a verdict. At a later court trial, the enhancement allegations were found true. 

 At sentencing, the trial court granted defendant’s motion to strike the prior prison 

term allegations as to all counts, but it declined to strike the prior serious felony 

conviction allegations as to the transportation count. Accordingly, 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 court noted that although the convictions occurred 

“a long time ago” in 1986 and 1992, defendant had three convictions in those two years, 

with another felony conviction between them. In addition, he had other convictions since 
6

1992, including several felony and misdemeanor convictions in 1998. As a result, the 

court concluded, “[T]here has been very little time that [defendant] has not been 

committing offenses, except for the time that he’s in prison, although he does have the 

escape conviction even related to that.” His performance on parole had been consistently 

poor. The present offense involved “a large amount” of heroin that was individually 

packaged, and defendant exhibited no acceptance of responsibility for his criminal 

conduct. Given his life circumstances, the court concluded, his “prospects are poor for a 

stable, law-abiding life.” 

II. DISCUSSION 

A. Defendant’s Faretta Motion

 Defendant first contends the trial court abused its discretion 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, knowingly, and intelligently. 

[Citations.] As the high court has stated, however, ‘Faretta itself and later cases have 

made clear that the right of self-representation 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 core integrity of the trial.’ [Citations.] [¶] Likewise, we have 

long held that a self-representation 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 610, 637–638, 643.) 

 This case is controlled by People v. Horton (1995) 11 Cal.4th 1068 (Horton), the 

circumstances of which are indistinguishable from those presented here. In Horton, the 

defendant made a Faretta motion on the day of trial, immediately after his Marsden 
7

motion was denied. The trial court concluded defendant was attempting to obstruct the 

prosecution and delay trial, and it denied the motion as untimely. (Horton, at p. 1110.) 

The Supreme Court affirmed, holding, “In order to invoke the constitutionally mandated 

unconditional right of self-representation, a defendant must assert that right within a 

reasonable time prior to trial. The latter requirement serves to prevent a defendant from 

misusing the motion to delay unjustifiably 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 trial—the defendant has the burden of justifying the delay. 

[Citation.] ‘[A] defendant should not be permitted to wait until the day preceding trial 

before he moves to represent himself and requests 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 addressed to the sound discretion of the trial 

court . . . .’ [Citation.] [¶] The record amply supports the trial court’s action in denying 

defendant’s untimely request after finding a lack 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 the 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, there 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. Granting 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 court’s rulings. As 
8

discussed above, the trial court’s ruling was a proper exercise of discretion under those 

rulings. 

 Citing the trial court’s purported willingness 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 unduly disrupted the proceedings. Contrary to defendant’s 

contention, the trial court did not offer to grant a continuance to accommodate new 

counsel. The court merely asked whether 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 accommodate defendant’s choice of counsel, that 

willingness would not retrospectively justify 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 period than would be necessary for experienced 

counsel, but also would have risked causing additional delay if defendant found himself 

unequal to the task and requested reappointment of counsel. The longer continuance and 

the potential for disruption in the event defendant 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 based its ruling on improper considerations, 

such as defendant’s lack of legal experience. On the contrary, while the trial court 

initially expressed concern about defendant’s lack of training, it ultimately denied the 

motion on grounds of untimeliness, 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.” The 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 attorney. 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 court’s reasoning and, if the 
9

ruling was correct on any ground, we affirm.” ’ ” (People v. Rogers (2009) 46 Cal.4th 

1136, 1162, fn. 14.) 

 Finally, defendant argues the court abused its discretion in “conditioning 

[defendant’s] right to represent himself on the court’s granting of a continuance.” The 

argument badly misstates the record. In fact, the court initially informed defendant it 

would not be inclined to grant a continuance if he insisted on assuming his own defense. 

Upon hearing he would not be granted more time, defendant withdrew his request. Later, 

when defendant reasserted his desire to represent himself, the court denied the request as 

untimely. At no point did the court condition the grant of defendant’s Faretta motion on 

a continuance.2

 

B. Defendant’s Marsden Motion 

 Defendant next contends the trial court abused its discretion in denying his fourth 

Marsden motion, discussed above. 

 “ ‘When a defendant seeks substitution of appointed counsel pursuant to 

[Marsden], “the trial court must permit the defendant to explain the basis of his 

contention and to relate specific instances of inadequate performance. A defendant is 

entitled to relief if the record clearly shows that the appointed counsel is not providing 

adequate representation or that defendant and counsel have become embroiled in such an 

irreconcilable conflict that ineffective representation 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 substitution is likely to result in 

constitutionally inadequate representation.” ’ [Citation.] [¶] ‘We review the denial of a 

Marsden motion for abuse of discretion.’ [Citation.] ‘Denial is not an abuse of 

discretion “unless the defendant 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 prepare 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 defendant’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 inadequate 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 persons defendant believed to have relevant and 

exculpatory information. It has long been held that a difference over trial tactics does not 

constitute an irreconcilable conflict. (People v. Myles (2012) 53 Cal.4th 1181, 1207.) 

While defendant argues the record demonstrates “such an extensive disagreement over 

procedural and substantive tactics as signaled a virtual standstill in any ‘assistance of 

counsel,’ ” the contrary is true. The record 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 irremediably broken down.” Lack of trust by a 

defendant in his attorney does not alone justify a substitution of appointed counsel. “ ‘If 

a defendant’s claimed lack of trust in, or inability to get along with, an appointed attorney 

were sufficient to compel appointment of substitute counsel, defendants effectively 

would have a veto power over any appointment, and by a process of elimination could 

obtain appointment of their preferred attorneys, which is certainly not the law.’ ” (People 

v. Myles, supra, 53 Cal.4th at p. 1207.) 

 In any event, defendant has not demonstrated the failure to appoint substitute 

counsel “substantially impair[ed]” his Sixth Amendment right to counsel. (People v. 

Streeter, supra, 54 Cal.4th at p. 230.) Defendant cites no impairment at all of counsel’s 

performance at trial as a result 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 “declaring a mistrial in order to effectuate 

a longer continuance than it was willing to grant.” Although couched as a challenge to 

the trial court’s grant of his motion for a mistrial, defendant’s argument is, at best, a 

challenge to the trial court’s refusal to grant his attorney’s request for a 10-court-day 

continuance. 

 “ ‘ “ ‘The granting or denial of a motion 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 anticipates but also the likelihood that such 

benefit will result, the burden on other witnesses, jurors and the court and, above all, 

whether substantial justice will be accomplished or defeated by a granting of the 

motion.’ ” [Citation.] In the 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.]’ [Citations.] 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 the 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 conference at the expiration of the continuance to 

determine the appropriate steps once defense counsel had reviewed the tapes. The court 

expressly mentioned the possibility of entertaining 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 substantial change in trial strategy for the defense, requiring further 

time, counsel was given the option of requesting 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 the 
12

court’s expressed willingness to consider a further continuance if justified. There is no 

reason to believe, as defendant contends, the trial court imposed the shorter continuance 

for the purpose of forcing defense 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 challenge 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 consenting to a motion for mistrial. (E.g., People v. Batts

(2003) 30 Cal.4th 660, 679–680.) 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 from the grant of a mistrial. At less than 

two months, the delay in his trial was brief, 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]), this particular tribunal had not even heard 

opening arguments, let alone evidence. The present situation is simply not comparable to 

the typical double jeopardy case, in which a mistrial 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, allowing counsel to review the materials 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 therefore provides no support for his 

argument. 

4

 Because there was no prejudice, defendant cannot prevail on a claim of 

ineffective assistance of counsel based on the motion for a mistrial. (People v. 

Hernandez (2012) 53 Cal.4th 1095, 1104–1105.) 
13

D. Refusal to Strike Defendant’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 applied in every case where the defendant has 

at least one qualifying strike, unless the sentencing court “conclud[es] that an exception 

to the scheme should be made because, for articulable reasons which can withstand 

scrutiny for abuse, this defendant should be treated as though 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 finding under the Three Strikes law, on its own 

motion, “in furtherance of justice” pursuant to Penal Code section 1385(a), or in 

reviewing such a ruling, the court in question 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.’ [Citation.] 

 “Thus, the 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. 
14

 “In light of this presumption, a trial court will only abuse its discretion in failing to 

strike a prior felony conviction allegation in limited circumstances. For example, an 

abuse of discretion occurs where the trial court was not ‘aware of its discretion’ to 

dismiss [citation], or where the court considered impermissible factors in declining to 

dismiss [citation]. Moreover, ‘the sentencing norms [established by the Three Strikes law 

may, as a matter of law,] produce[] an “arbitrary, 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 conviction allegations. [Citation.] Where the record 

is silent [citation], or ‘[w]here the record demonstrates that the trial court balanced the 

relevant facts and reached an impartial decision 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 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. Of course, in such 

an extraordinary case—where the relevant factors described in [People v. Williams

(1998) 17 Cal.4th 148 (Williams)], manifestly support the striking of a prior conviction 

and no reasonable minds could 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 extraordinary case. The trial court was clearly aware of the scope of 

its discretion and the factors guiding that discretion. The court found, in essence, that 

defendant’s prior serious felony convictions, his 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 timing of the prior strikes is only one factor to be considered 
15

under Romero. As the trial court noted, defendant not 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 prior 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, however, we would find no merit in the claim. 

 “The Eighth Amendment prohibits imposition of a sentence that is ‘grossly 

disproportionate’ to the severity of the crime. [Citations.] In a noncapital case, however, 

successful proportionality challenges are ‘ “exceedingly rare.” ’ [Citation.] In the rare 

case where gross disproportionality 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) sentences 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 Strikes 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 against constitutional challenge an indeterminate 

life sentence for a theft of golf clubs, supported 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. Holding that “in determining the gravity of petitioner’s conduct 

in evaluating an Eighth Amendment challenge to a sentence imposed under a recidivist 

sentencing statute, we must consider not only petitioner’s triggering offense but also the 

nature and extent of petitioner’s criminal history,” the court affirmed an indeterminate 
16

life sentence for a defendant who had refused to register and whose prior offenses were 

“particularly heinous.” (Id. at p. 562.) The court suggested 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 conduct involved three convictions for 

robbery and a series of lesser crimes, such as drug possession, jail escape, and burglary, 

which occurred periodically throughout 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 view the conviction in the context of the 

defendant’s past conduct. From that perspective, we find no gross disproportionality. 

(See People v. Mantanez (2002) 98 Cal.App.4th 354, 366–367 [no Eighth Amendment 

violation when Three Strikes sentence imposed for possession of heroin and receiving 

stolen property when defendant had long history of burglary and narcotics offenses].) 

F. Proposition 36

 In a letter brief filed November 9, 2012, defendant requested his sentence be 

vacated and the matter remanded to the trial court for resentencing pursuant to recently 

approved Proposition 36, the Three 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 procedure 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 sentencing 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 strikes who is convicted of any new 

felony is subject to an indeterminate life sentence. The Act diluted the three strikes law 

by reserving the life sentence for cases where the current crime is a serious or violent 
17

felony or the prosecution has pled 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 proceeding whereby a prisoner who is serving 

an indeterminate life sentence imposed pursuant to the three strikes law for 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 risk 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 Three 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 for 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 apply retroactively to such persons. (Yearwood, at 

pp. 171–178.) As a result, 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 basis, decline to vacate defendant’s sentence 

under the Act. We express no opinion on the proper disposition of any petition for recall 

he might file in the trial court 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.