Filed 8/27/13 P. v. Coneal CA6 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS 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 

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or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

SIXTH APPELLATE DISTRICT 

THE PEOPLE, 

Plaintiff and Respondent, 

v. 

LATHAN ALLEN CONEAL, 

Defendant and Appellant. 

 H037716 

 (Santa Clara County 

 Super. Ct. No. CC960238) 

 A jury convicted defendant Lathan Allen Coneal of residential burglary (Pen. 

Code, §§ 459, 460)1

 and found he had committed two previous serious or violent felonies 

(§ 667, subd. (e)(2)). The trial court sentenced defendant to a total of 35 years to life in 

prison pursuant to California’s “Three Strikes” law,2

 consisting of 25 years to life for 

committing a third felony, consecutive to two determinate terms of five years each for his 

previous serious or violent felonies. (§ 667, subds. (a), (e)(2)(A)(ii).) Defendant 

challenges his sentence, arguing it constitutes cruel and unusual punishment in violation 

of the Eighth Amendment to the United States Constitution and cruel or unusual 

punishment in violation of article I, section 17 of the California Constitution. He also 

challenges the imposition of a restitution fine, a criminal justice administration fee, and 

 1

 Unspecified statutory references are to the Penal Code. 

2

 Section 667, subdivision (e)(2)(A)(ii), states, in relevant part: “[I]f a defendant 

has two or more prior serious and/or violent felony convictions as defined in subdivision 

(d) that have been pled and proved, the term for the current felony conviction shall be an 

indeterminate term of life imprisonment with a minimum term of [¶] . . . (ii) . . . 25 

years.” 
an order that he pay victim restitution. For the reasons stated here, we will affirm the 

lower court’s judgment. 

I. FACTUAL AND PROCEDURAL BACKGROUND 

 In the early morning of November 3, 2009, defendant burglarized a townhouse on 

Cypress Point Court in San Jose. At the time, John Kapelowitz and Diane Roberge lived 

in the house and were sleeping in separate bedrooms on the second floor. Roberge awoke 

when she felt someone bump the side of her bed. She looked up and saw defendant 

crouched on the opposite side of her bed with just the top of his head visible. Realizing a 

stranger was in her room, Roberge began screaming as loud as she could and defendant 

put his hands out, motioned, and said “don’t scream.” Defendant then bent down, picked 

up something Roberge later confirmed was her laptop, and fled. 

 Kapelowitz woke up at the sound of Roberge’s screaming and quickly went to 

Roberge’s room. After calling the police, Kapelowitz surveyed the townhouse to see 

what was missing. He discovered his laptop computer and its case were missing, as well 

as his Blackberry cellular phone and Roberge’s laptop. He also noticed one black glove 

that he did not recognize near the stairs on the first floor. 

 Meanwhile, San Jose Police Department Officer Steven Valentine was responding 

to another call in the area when he heard a blood curdling scream and went on foot in the 

direction of the scream. As he walked, Officer Valentine noticed defendant walking 

briskly from an alley. Defendant was the only person in sight and had a glove on one of 

his hands. 

 As defendant attempted to enter another residence, Officer Valentine identified 

himself as a police officer and told defendant to stop. At that point, defendant threw 

several items, including a laptop, into some bushes and ran. Officer Valentine pursued 

on foot until defendant climbed over a fence and out of view. 

 Officer Valentine and other officers eventually found defendant in an attic after 

noticing a missing vent grate on the side of a residence. Police also found one black 
glove and a black beanie in the attic where defendant was hiding. When the officers 

searched defendant, they found a battery for a Blackberry cellular phone. 

 The police ultimately recovered both laptop computers as well as a laptop case, 

but only the laptop belonging to Kapelowitz still functioned. The Blackberry cellular 

phone was never recovered. Testing revealed defendant’s DNA on both the glove found 

at the location of the burglary and the glove found in the attic where he was arrested. 

After the jury convicted defendant of residential burglary and found the existence of two 

prior strikes, the trial court sentenced defendant to 35 years to life in prison. The court 

also ordered defendant to pay a $10,000 restitution fine (§ 1202.4), $2,600 in restitution 

to Roberge for computer repairs and replacement, $639 in restitution to Kapelowitz for 

his Blackberry phone, a $129.75 criminal justice administration fee (Gov. Code, §§ 

29550, 29550.1, 29550.2), as well as other fees not at issue on appeal. 

II. DISCUSSION 

 We will divide our discussion between defendant’s constitutional claims and the 

claims relating to fines and restitution. 

A. SENTENCE OF 35 YEARS TO LIFE

 Defendant challenges his sentence under both the United States and California 

Constitutions. 

1. Eighth Amendment Prohibition of Cruel and Unusual Punishment 

 The Eighth Amendment prohibits “cruel and unusual punishments.” (U.S. Const., 

8th Amend.) When reviewing non-capital sentences to determine whether the sentence is 

cruel and unusual, we ask whether the sentence is “grossly disproportionate” to the crime. 

(Lockyer v. Andrade (2003) 538 U.S. 63, 73.) Federal courts look to the following 

criteria to assist with this determination: “(i) the gravity of the offense and the harshness 

of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and 

(iii) the sentences imposed for commission of the same crime in other jurisdictions.” 
(Solem v. Helm (1983) 463 U.S. 277, 292.) A sentence will only be found grossly 

disproportionate in “ ‘exceedingly rare’ and ‘extreme’ case[s].” (Lockyer, supra, 538 

U.S. at p. 73, quoting Harmelin v. Michigan (1991) 501 U.S. 957, 1001 (conc. opn. of 

Kennedy, J.).) 

 The United States Supreme Court has previously addressed and rejected an Eighth 

Amendment claim related to an individual sentenced to an indeterminate term of 25 years 

to life under California’s Three Strikes law in Ewing v. California (2003) 538 U.S. 11 

(Ewing). There, the jury convicted the defendant of felony grand theft for stealing three 

golf clubs with a total value of $1,197. (Id. at pp. 17-18 (plur. opn. of O’Connor, J.).) 

Because of previous serious or violent felonies, the trial court applied the Three Strikes 

law and sentenced the defendant to 25 years to life in prison. (Id. at p. 20.) In affirming 

the defendant’s sentence, Justice O’Connor’s plurality opinion discussed recidivist 

statutes generally and California’s Three Strikes law specifically, noting that “ ‘[s]tates 

have a valid interest in deterring and segregating habitual criminals.’ ” (Id. at p. 25, 

quoting Parke v. Raley (1992) 506 U.S. 20, 27.) 

 Focusing on the first criterion, assessing the gravity of the offense and the 

harshness of the penalty, the Ewing court noted that while the theft of three golf clubs 

might seem trifling, their value was not insignificant. (Ewing, supra, 538 U.S. at p. 28.) 

The Court further observed that harshness cannot be determined in the vacuum of the 

most recent offense, but rather must be viewed in the context of a “long history of 

recidivism.” (Id. at p. 29.) When viewed in that light, the plurality found no gross 

disproportionality. The Court found the sentence to be justified both by the defendant’s 

recidivism and California’s public safety interest in incapacitating and deterring 

recidivists. (Id. at pp. 29-30.) While California’s Three Strikes law resulted in lengthy 

prison sentences, it reflected “a rational legislative judgment, entitled to deference, that 

offenders who have committed serious or violent felonies and who continue to commit 

felonies must be incapacitated.” (Id. at p. 30.) Because the plurality found no inference 
of disproportionality, it affirmed the defendant’s sentence and did not address the other 

two criteria. 

 Turning to the seriousness of defendant’s offense here, the jury convicted him of 

first degree (residential) burglary (§ 460 [burglary of “inhabited dwelling house” is of the 

first degree]). Because non-accomplices were present in the townhouse when the 

burglary occurred, the offense was per se “serious” and “violent.” (§ 1192.7, subd. 

(c)(1)(18); § 667.5, subd. (c)(21).) The jury also found defendant had two prior felony 

convictions for residential burglary, both meeting the statutory criteria for serious and 

violent felonies. 

 Though defendant stresses no one was physically injured during his most recent 

burglary, there was a high risk of harm because the townhouse was occupied, with 

defendant found inside one victim’s bedroom. While there was no physical injury, the 

trial court noted the victims suffered “real and enduring psychological harm” as a result 

of the intrusion into their home. Regarding the harshness of defendant’s sentence, we 

note the sentence reflects not only this burglary but two previous convictions for the same 

crime. Moreover, the lower court observed that the latest burglary was more serious than 

the previous ones because there was a greater level of planning and sophistication in its 

execution. Based on a consistent history of recidivism, the trial court imposed the 

sentence of 35 years to life because incapacitation appeared to be the only effective 

method of preventing defendant from re-offending. Just as the plurality recognized in 

Ewing, supra, 538 U.S. at p. 25, the sentence in this case furthers California’s legitimate 

interest in deterring and segregating habitual criminals. On these facts, we find no gross 

disproportionality between defendant’s conviction and his sentence. 

 Because we find no inference of disproportionality, we follow the practice of the 

plurality in Ewing and do not address the other two criteria. 
2. Article I, Section 17 Prohibition of Cruel or Unusual Punishment 

 Article I, section 17, prohibits “cruel or unusual punishment.” (Cal. Const., art. I, 

§ 17.) California courts also use a three-factor test to determine whether punishment “is 

so disproportionate to the crime for which it is inflicted that it shocks the conscience and 

offends fundamental notions of human dignity.” (In re Lynch (1972) 8 Cal.3d 410, 424.) 

To determine defendant’s claim, we analyze: (1) the nature of the offense and the 

offender; (2) defendant’s sentence compared with the punishment for different offenses 

in California; and (3) defendant’s sentence compared with the punishment for similar 

offenses in other jurisdictions. (People v. Martinez (1999) 71 Cal.App.4th 1502, 1510.) 

 Our view of the offense and the offender is similar to our preceding Eighth 

Amendment analysis and does not favor defendant. The jury convicted defendant of 

residential burglary, a serious and violent felony, and found he had two prior strike 

convictions for the same crime. The fact that a residential burglary is deemed per se 

serious and violent reflects the Legislature’s understanding of the potential for violence 

inherent in the offense. (People v. Hughes (2002) 27 Cal.4th 287, 355 [noting burglary 

laws recognize danger to personal safety created by risk that intruder will harm occupants 

as well as risk that occupants will react violently to the invasion].) As we discuss above, 

despite the absence of physical injuries, the lower court found the victims suffered 

ongoing psychological harm as a direct result of defendant’s crime. The trial court also 

considered defendant’s drug use described in the probation officer’s report, but concluded 

that while drug and alcohol addiction can be a mitigating factor in some cases, it did not 

mitigate defendant’s conduct here because of his “repeated failure to take action to deal 

with his alleged addiction[.]” (See Martinez, supra, 71 Cal.App.4th at p. 1511 [“drug 

addiction is not necessarily regarded as a mitigating factor when a criminal defendant has 

a long-term problem and seems unwilling to pursue treatment”].) From this, we conclude 

the nature of defendant and his offense supported his sentence. 
 As to the second factor, comparing defendant’s sentence with the punishments for 

other offenses, defendant compares in isolation the sentence for his most recent offense to 

crimes that carry heavier sentences, such as first degree murder, which carries an 

indeterminate sentence of 25 years to life. (§ 190, subd. (a).) However, the proper 

comparison must include “not only his current offenses, but also his recidivism.” (People 

v. Cartwright (1995) 39 Cal.App.4th 1123, 1136; see also People v. Sullivan (2007) 151 

Cal.App.4th 524, 571.) For example, in Martinez, supra, 71 Cal.App.4th at p. 1512, the 

defendant had prior strike convictions for assault with a deadly weapon, robbery, and 

attempted robbery. He compared his Three Strikes life sentence for methamphetamine 

possession and interference with an executive peace officer to that of a first-time offender 

convicted of voluntary manslaughter, urging that the latter would receive a shorter 

sentence. The Martinez court noted that the proper comparison is to a “recidivist killer” 

whose punishment would be the same as the defendant’s under California’s Three Strikes 

law. (Ibid.) Similarly here, the proper comparison is to an offender with two strikes 

who, like defendant, commits an additional serious or violent felony. Because that third 

felony would trigger the same sentence defendant received for his current burglary 

conviction, this factor demonstrates proportionality. 

 Defendant focuses particularly on the third Martinez factor, namely that his 

sentence in California is far greater than what he would receive in other states for the 

same offense. Defendant argues other states impose indeterminate life sentences only for 

aggravated felonies, while California allows a life sentence for any third felony.3

 

Defendant also notes that states such as Louisiana and Oklahoma have “washout” periods 

after which prior felonies do not count against a defendant for strike purposes. He argues 

 3

 Proposition 36, approved by voters in November 2012 after the filing of 

defendant’s opening brief, limits the application of California’s Three Strikes law to 

individuals like defendant, whose third strike is serious or violent. (See § 667, subd. 

(e)(2)(C) [defining lesser penalty when third felony conviction is not serious or violent].) 
this supports a finding that his sentence was cruel or unusual. However, this court has 

previously acknowledged this practice in other states and nonetheless affirmed a sentence 

under the Three Strikes law. (Martinez, supra, 71 Cal.App.4th at pp. 1514-1517.) 

 Finally, defendant points to other states’ sentencing schemes for habitual offenders 

and argues they are more lenient for various reasons, including lower maximum 

sentences, lower mandatory minimums, and earlier parole eligibility. These same claims 

were considered and rejected in Martinez after an exhaustive review of the sentencing 

regimes in other states. (Martinez, supra, 71 Cal.App.4th at pp. 1512-1516.) The 

Martinez court noted California is actually more lenient than other states in certain 

respects. For example, California’s Three Strikes law allows for the possibility of parole, 

while antirecidivism laws in other states such as Louisiana and Mississippi do not. (Id. at 

p. 1516.) The court also reasoned California’s law is not as draconian as others because 

section 1385, subdivision (a), empowers trial courts to strike prior felonies “in 

furtherance of justice,” as informed by the spirit of the Three Strikes statute. (Martinez, 

supra, at p. 1515, citing People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 504, 

529-530.) While the court recognized California’s Three Strikes scheme is one of the 

strictest in the nation, it noted the Legislature need not conform to the laws of other states 

and has broad authority to set sentences. (Martinez, supra, at p. 1516; see also Ewing, 

supra, 538 U.S. at p. 22 [“ ‘courts should be reluctant to review legislatively mandated 

terms of imprisonment, and . . . successful challenges to the proportionality of particular 

sentences should be exceedingly rare.’ ”], quoting Hutto v. Davis (1982) 454 U.S. 370, 

374.) 

 We find the reasoning of Martinez persuasive and conclude this third factor does 

not support defendant’s argument. Because we do not find defendant’s sentence 

excessive, the mere fact that his sentence might be harsher under California law is 

unavailing. 
 Based on the foregoing reasons, we find defendant’s sentence was not cruel or 

unusual. 

B. RESTITUTION FINE (§ 1202.4, SUBD. (B)) 

 Defendant challenges the imposition of a $10,000 restitution fine based on a 

failure to consider defendant’s ability to pay. Defendant relies on Southern Union Co. v. 

United States (2012) 567 U.S. __, 132 S.Ct. 2344 (Southern Union), to argue that the 

determination of facts affecting the restitution fine amount should have been decided by a 

jury. Alternatively, defendant argues that, to the extent his claims are forfeited, his trial 

counsel provided ineffective assistance. 

 At the time of defendant’s sentencing, section 1202.4, subdivision (b), required the 

trial court to impose a restitution fine between $200 and $10,0004

 in every felony case 

unless “compelling and extraordinary reasons” exist for not doing so. (Former § 1202.4, 

subd. (b).) While a defendant’s inability to pay can be considered when increasing a fine 

beyond the statutory minimum, it “shall not be considered a compelling and 

extraordinary reason not to impose a restitution fine.” (§ 1202.4, subd. (c).) When 

determining the amount of the fine, the court must consider “any relevant factors, 

including, but not limited to, the defendant’s inability to pay, the seriousness and gravity 

of the offense and the circumstances of its commission, any economic gain derived by the 

defendant as a result of the crime, the extent to which any other person suffered losses 

[tangible or intangible] as a result of the crime, and the number of victims involved in the 

crime.” (§ 1202.4, subd. (d).) The court need not conduct a separate hearing to 

determine the fine, nor make express findings regarding the factors considered in 

 4

 Section 1202.4, subdivision (b)(1) presently calls for the imposition of a felony 

restitution fine between $280 and $10,000 and the minimum will increase to $300 as of 

January 1, 2014. (§ 1202.4, subd. (b)(1).) 
determining the fine. (Ibid.) Indeed, the court may determine the amount of the fine by 

formula. (§ 1202.4, subd. (b)(2).)5

1. Forfeiture and Southern Union Co. v. United States (2012) 567 U.S. __ 

 We agree with the People that defendant forfeited most claims on this point by 

failing to object during sentencing. (See People v. Nelson (2011) 51 Cal.4th 198, 227.) 

We will, however, consider defendant’s claim based on Southern Union because that case 

was decided after his sentencing hearing. 

 In Apprendi v. New Jersey (2000) 530 U.S. 466, the United States Supreme Court 

held that a jury must decide beyond a reasonable doubt any fact that increases a criminal 

penalty beyond a statutory maximum. (Id. at p. 490.) In Southern Union, the Court 

extended the Apprendi rule to monetary fines. (Southern Union, supra, 567 U.S. at p. __ 

[132 S.Ct. at pp. 2352, 2357].) Defendant argues the jury should have decided the 

amount of the restitution fine because it increased his sentence. This argument was 

recently addressed and rejected by the Second District in People v. Kramis (2012) 209 

Cal.App.4th 346, 351-352. In Kramis, the court explained that Apprendi and Southern 

Union do not apply unless a court imposes a penalty that exceeds a statutory range. (Id. 

at p. 351.) Because the trial judge imposed a $10,000 fine in Kramis, the court held the 

fine was within the statutory range, did not implicate Apprendi or Southern Union, and 

therefore did not need to be decided by a jury. (Id. at pp. 351-352.) 

 Like the fine in Kramis, the trial court here exercised discretion within the 

statutory range and imposed a $10,000 restitution fine. Although the fine constitutes the 

statutory maximum, it does not exceed the maximum and Southern Union therefore does 

not apply. Defendant’s argument must fail. 

 5

 Section 1202.4, subdivision (b)(2) allows the court to set the fine by multiplying 

the minimum fine under Section 1202.4, subdivision (b)(1), times the number of years of 

imprisonment, times the number of convicted felony counts. (§ 1202.4, subd. (b)(2).) 
2. Ineffective Assistance of Counsel 

 Defendant argues his trial counsel provided ineffective assistance by failing to 

object to the amount of the restitution fine based on defendant’s inability to pay. To 

prevail, defendant must show both that his trial counsel’s performance was deficient and 

that the deficiency prejudiced defendant. (People v. Ledesma (1987) 43 Cal.3d 171, 216-

217.) To prove prejudice, defendant must affirmatively show a reasonable probability 

that, but for his trial counsel’s errors, the result would have been different. (Id. at pp. 

217-218.) A reasonable probability is one “ ‘sufficient to undermine confidence in the 

outcome.’ ” (Id. at p. 218, quoting Strickland v. Washington (1984) 466 U.S. 668, 693-

694.) 

 We need not determine whether trial counsel’s failure to object was defective 

because even assuming counsel’s deficient performance, defendant suffered no prejudice. 

Had defendant’s counsel preserved an objection to the amount of the restitution fine, the 

amount of the fine would be subject to an abuse of discretion standard on appeal. 

(Nelson, supra, 51 Cal.4th at p. 227.) In reviewing the amount of the restitution fine, 

many factors in section 1202.4, subdivision (d), support the trial court’s decision. 

Defendant’s burglary was a serious offense and was but the latest crime in a long history 

of recidivism. The pecuniary impact to the victims from the loss of the laptop and 

cellular phone was substantial. And while the victims suffered no physical harm, the 

court found they suffered psychological harm as a result of the burglary. Based on these 

facts, it was not an abuse of discretion for the trial judge to impose a $10,000 restitution 

fine. Thus, defendant has not met his burden to show ineffective assistance of counsel. 

C. VICTIM RESTITUTION (§ 1202.4, SUBD. (F)) 

 Defendant challenges the amount of victim restitution he was ordered to pay to 

Kapelowitz ($639) and Roberge ($2,600). Defendant first argues Apprendi and Southern 

Union require that the amount of victim restitution be determined by a jury. He also 
argues the court abused its discretion in determining the amount of restitution. Pursuant 

to section 1202.4, subdivision (f), the court must order full restitution for any economic 

loss “based on the amount of loss claimed by the victim or victims or any other showing 

to the court.” 

 Defendant’s Apprendi claim fails because that line of cases applies only to facts 

affecting the imposition of “punishment.” (People v. Chappelone (2010) 183 

Cal.App.4th 1159, 1184.) In Chappelone, the First District, encountering an identical 

claim, surveyed United States Supreme Court cases as well as California cases and 

concluded victim restitution did not constitute punishment because its primary purpose is 

to provide compensation to victims rather than to punish defendants. (Ibid.) That victim 

restitution might serve a secondary purpose of deterrence does not convert it into a form 

of punishment implicating the Sixth Amendment jury right. (Ibid., citing People v. 

Millard (2009) 175 Cal.App.4th 7, 35-36.) We agree with the First District’s reasoning 

and therefore find no Sixth Amendment violation.

 Defendant next argues the trial court abused its discretion in setting the amount of 

victim restitution based solely on information from the probation report. We disagree. 

The contents of a probation report constitute “ ‘prima facie evidence of loss’ ” and, in the 

absence of any contrary information filed by defendant,6

 the trial court was allowed to 

rely on that report in setting the amount of victim restitution. (People v. Holmberg

(2011) 195 Cal.App.4th 1310, 1319-1320, quoting People v. Gemelli (2008) 161 

Cal.App.4th 1539, 1543.) For this reason, we find no abuse of discretion. 

 6

 A defendant has the right to a hearing to dispute the determination of the amount 

of restitution (Pen. Code § 1202.4, subd.(f)(1).). Although the record does not contain an 

explicit advisement or waiver of such a hearing, defendant does not allege that he was 

deprived of that opportunity. 
D. CRIMINAL JUSTICE ADMINISTRATION FEE

 Defendant’s final argument is that the trial court erred by imposing a criminal 

justice administration fee without determining defendant’s ability to pay. Disposition of 

this issue is controlled by the California Supreme Court’s recent decision in People v. 

McCullough (2013) 56 Cal.4th 589, where the Court held a challenge to a criminal justice 

administration fee is forfeited if there is no objection in the trial court. (Id. at p. 597.) As 

we are bound by that decision, and because defendant did not object below, his argument 

is forfeited. 

 As for the People’s request that we amend the sentencing minute order and 

abstract of judgment to conform to the oral order, review of the documents indicates they 

both reflect the oral order to pay a $129.75 criminal justice administration fee. Thus, no 

amendment is necessary. 
III. DISPOSITION 

 For the foregoing reasons, the judgment is affirmed. 

 ____________________________________

 Grover, J. 

WE CONCUR: 

____________________________

Premo, Acting P.J. 

____________________________

Mihara, J.