Filed 1/13/16 P. v. Acosta CA4/3

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

 Plaintiff and Respondent,

v.

RAMON RODRIGUEZ ACOSTA

 Defendant and Appellant.

 G051928

 (Super. Ct. No. 94SF0516)

 O P I N I O N

Appeal from an order of the Superior Court of Orange County, Kazuharu 

Makino, Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief Justice 

pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.

Rodger Paul Curnow, under appointment by the Court of Appeal, for 

Defendant and Appellant.

No appearance for Plaintiff and Respondent.

* * *
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In 1994, Appellant Ramon Rodriguez Acosta was convicted by a jury of 

first degree burglary (inhabited dwelling house). The jury found it true that Acosta was 

on bail at the time he committed the crime. After a separate proceeding, the trial court 

found to be true the allegations that Acosta had suffered two prior serious felonies and 16 

felonies in total. It sentenced Acosta to state prison for 25 years to life under the Three 

Strikes law plus 10 years for the two serious felonies. Acosta moved to have one of the 

strikes stricken and was denied. He appealed, and his conviction was upheld.

Seventeen years later he petitioned for relief under Proposition 36. He was 

refused because his crimes did not qualify for consideration under the new law.

In January of 2015, he petitioned the trial court under Proposition 47 for 

resentencing. His petition was denied on the same basis.

We appointed counsel to represent him on that appeal. Counsel filed a brief 

which set forth the procedural facts of the case (the facts of the crimes themselves are 

largely irrelevant because the argument is solely directed at Acosta’s plea and the 

application to it of Pen. Code, § 1170.18). Counsel did not argue against his client, but 

advised us there were no issues to argue on his behalf. 

Acosta was invited to express his own objections to the proceedings against 

him, and filed with us a brief that raises two issues: the constitutionality of California’s 

definition of “serious crimes” for Three Strikes law treatment, and the equity of applying 

that law to him after 21 years of acceptable prison behavior. 

The first issue is based upon an erroneous premise. Acosta argues that 

enhancement of his sentence under the Three Strikes law sentencing scheme is 

unconstitutional under In re Winship (1970) 397 U. S. 358, because it amounts to the 

application of a presumption that is not reasonably related to fact. His argument is that 

not all burglaries are violent or result in violence, so treating burglary as a violent felony 

for purposes of Penal Code section 1192.7, subdivision (c) amounts to an unconstitutional 

presumption.
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The immediate problem with this argument is that the statutory scheme 

does not treat burglary as a “violent” crime, but rather as a “serious” one. Acosta was not 

sentenced to 25 years to life because burglary is a violent crime but because the 

Legislature has defined it as a serious crime meriting serious treatment. While Acosta’s 

argument might fail even if we analyzed it as a presumption having to do with the 

likelihood of violence in burglaries, it clearly fails when analyzed as an objection to the 

legislative determination that burglary is a serious crime. Deciding what crimes are 

serious is unquestionably a legislative function and does not involve reliance on any 

presumption.

As for Acosta’s argument that “mitigating circumstances take him outside 

the spirit of the Three Strikes law,” we cannot agree. Acosta suffered 16 felony 

convictions before the present offense. This was the third of those that was serious or 

violent. He is precisely the person the Legislature had in mind for treatment under the 

Three Strikes law. 

He has apparently lived an exemplary life in prison. He has attached 

favorable “chronos” and his attorney tells us he is suffering from hypertension and 

diabetes and would therefore not be a threat if released from prison. But that is not the 

issue we get to address. All we can decide is whether the court acted reasonably in 

sentencing him under the Three Strikes law. It did. His oft-demonstrated inability to 

function well outside the prison environment left the trial court no choice but to sentence 

him as it did, and there is no basis in law or logic for reversal of that choice.

Under the law, we are required to review the record and see if we can find 

any issues that might result in a finding of error when an attorney tells us he/she is unable 

to. (People v. Wende (1979) 25 Cal.3d 436.) We have done so. We have looked not just

at the issues Acosta raised but for whatever other issues might exist. It should be 

emphasized that our search was not for issues upon which Acosta would prevail, but only 

issues upon which he might possibly prevail. 
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We have found no arguable issue. Appellate counsel was correct in 

concluding there was no arguable issue on appeal.

The order is affirmed.

BEDSWORTH, ACTING P. J.

WE CONCUR:

MOORE, J.

ARONSON, J.