1 Filed 5/26/15 P. v. Nelson CA3 NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento)

THE PEOPLE, Plaintiff and Respondent,

v. TRAURE ZURI NELSON, Defendant and Appellant. C075704 (Super. Ct. No. 12F04523)

A jury convicted defendant Traure Zuri Nelson of carjacking (Pen. Code, § 215, subd. (a)) 1 and sustained an enhancement for pe rsonally using a firearm (§ 12022.53, subd. (b)). The trial court denied defendant’ s motion to strike the enhancement as cruel and/or unusual punishment and senten ced him to 13 years in state prison. On appeal, defendant contends the tria l court misunderstood the scope of its authority to strike the enhancement as cr uel and unusual punish ment, and imposition of

1 Undesignated statutory references are to the Penal Code.2 the enhancement violates the state prohibiti on against cruel or unusual punishment. We affirm. BACKGROUND The Crime On July 7, 2013, defendant was the registered owne r of a 2001 Lincoln Navigator sport utility vehicle (SUV). As of that date , Lobel Financial, the SUV’s legal owner, had sent multiple payment past due notices to defendant. It assigned repossession of the vehicle to Hook an d Book Recovery. Around 8:00 p.m., Jere my Monks, a repossession agent for Hook and Book Recovery, went to defendant’s home to repossess the Navigator. Monks’s cousin Brandon Meyer went along as a lookout an d assistant. The Navigator was in the driveway and Monks picked it up with his tow truck. As Monks and Meyer started to put nylon ratchet straps on the rear wheels, defe ndant jumped over a fence and approached them. Defendant was agitated and “freaked out ” and asked “what the hell was going on.” Monks said they were repossessing his Navigato r and told defendant he could retrieve his belongings from the vehicle if he gave up the keys. Defenda nt said he needed some things out of the Navigato r and questioned whether Monk s was a legitimate repossession agent. Monks got the repossession paperwork from his truck and showed it to defendant, who snatched it from him. 2 Defendant said he paid th e bill; Monks and Meyer replied they had to take the Navigator, but offered to give defendant a card that would allow him to pay off the debt and regain the vehicle.

2 Meyer testified that he had the pa perwork and defendant took it from him.3 Defendant’s behavior then “went south. ” He told Monks and Meyer that they were not going to take his car. He “started getting kind of violent, ” started swearing, and threatened to shoot Monks and Meyer. Defend ant’s wife or girlfriend came out of the house and stood on the patio. Defendant told her to “get the gun,” and that he would kill Monks and Meyer before they took the Na vigator. Monks and Meyer tried to calm defendant down, but he did not seem to car e and kept telling the woman to “grab the gun.” Defendant went into the house to get hi s keys. When defendant returned, Monks asked for the keys. Defendant pulled a semiau tomatic pistol out of his pocket and said that they were not going to take his vehi cle. Monks undid the straps, lowered the Navigator, and quickly left w ith Meyer. He called his supe rvisor, who told him to call the police. Defendant made a full monthly payment on the Navigator on July 10, 2013. Lobel Financial accepted payment and canceled the repossession. Defendant was stopped while driving the Na vigator and arrested on July 18, 2013. The Hook and Book recovery paperwork and a receipt from Lobel Financial for the July 10, 2013, payment were inside the vehicle. Motion to Strike the Enhancement Defendant filed a motion to strike th e section 12022.53 gun enhancement as a violation of the state and federal prohibitions against cruel and/or unusual punishment. He argued that recent changes in other laws reducing the punishment s for various crimes created a new context for considering his claim. He also argued that the facts of his case were “substantially less egregious than thos e of the ‘standard’ carjacking.” The motion pointed out that the Navigator was very important to defendant, who needed it to transport his son, who had a leg amputated due to cancer, to medical appointments. Defendant claimed his minimal criminal record , a 32 year old with no felony convictions, further supported a finding that imposing the enhancement was a disproportionate4 punishment. He additionally noted that inca rceration will gravely affect his girlfriend and the four children he supports as the so le breadwinner. Finally , the manner in which defendant conducted his life, avoiding ga ngs while growing up in the Oak Park neighborhood, finishing high sc hool and attending two years of college, and owning and operating his own business, shows that the inci dent leading to his conviction was out of character for his personality. At the hearing on the motion, defense co unsel reiterated the contentions regarding changes to the law, the mitigated facts of th e crime, and defendant’s lack of a significant record. 3 The trial court told counsel “that your argument really goes to the nature of the Penal Code section 215 violation, which is -- this is not your typical, if you will, carjacking.” Noting that the gun enhancement applied to “a whole plethora of offenses-- and it doesn’t really matter whether it’s carjack ing or robbery or some similar offense,” the court asked what about the nature of the offense “mitigates against applying the [section] 12022.53[, subdivisio n] (b) uniformly?” Counsel replied that this was not a standard carjacking and the firearm here wa s used in a “de minimis way.” The court replied this was the type of situation sec tion 12022.53 was intended to prevent, a person in an emotionally charged situation us ing a firearm to commit an offense. The court asked the prosecutor for his opini on on the facts of defendant’s crime. The prosecutor argued that while this was not a standard carjacking, that did not matter to the victims. Monks quit his job after the incident and Meyer no longer worked in repossession. Therefore, the fact that defend ant had an ownership interest in the vehicle was irrelevant. Also, the recent changes to the law reducing punishment were enacted

3 When he was 12, defenda nt had a sustained delinquen cy petition for misdemeanor vandalism. (Former § 594, subd. (b)(4).) As an adult, he has misdemeanor convictions for false imprisonment (§ 236) and resi sting an officer (§ 148, subd. (a)(1)).5 through legislation or the initiative process rath er than judicially. The defense replied to this last point by referring to recent decisions reducing punishment in certain situations. The trial court then stated: “Well, I have considered the author ities that have been cited. I’ve done some research on my ow n. I really don’t believe the lack of any significant criminal record pr ovides any basis for modifying the sentence to avoid an imposition of the sanction unde r [section] 12022.53[, subdivision] (b). [¶] I think the only thing that’s really pertinent here to that considera tion, based on the authorities that I’ve referred to, is the nature of the offens e itself.” Continuing, the court asked the prosecutor whether justice would not be serv ed if it granted defendant’s request and imposed a five-year enhancement under secti on 12022.5 rather than the 10-year section 12022.53 enhancement. The prosecutor argued th ere was nothing mitigating ab out defendant’s offense. Asked for additional comment, defense coun sel said if someone had come up to defendant’s home, knocked on the door, and said he had slept with de fendant’s girlfriend, defendant could receive a lesser sentence for shooting that ma n than what he would today if the court did not grant the motion. The trial court then denied defendant’s motion, finding “the conduct involving the use of a firearm in this case is exactly what was intended to be proscribed by the effects of that statute and I do not see any good caus e based upon the overall conduct in this case to depart from imposing the penalties under [section] 12022.53[, subdivision] (b).” DISCUSSION
I Defendant contends the tria l court did not understand its authority to strike his punishment as cruel or unusual under the Calif ornia Constitution. He claims the court’s statements at the hearing on his motion show a belief that it could not consider factors like defendant’s lack of a prior record, and th at the court limited its consideration to the6 nature of his current offense. Defendant asks us to revers e the denial of his motion to strike the enhancement and remand for a new hearing. Defendant’s contention is based on two st atements from the trial court, the trial court’s statement: “Well, I have considered the authorities that have been cited. I’ve done research on my own. I really don’t believe the lack of any significant criminal record provides any basis for modifying the sentence to avoid an imposition of the sanction under [section] 12022.53[, subdivision] (b). [¶] I think the only thing that’s really pertinent here to that consideration, based on the authorities that I’ve referred to, is the nature of the offense itself,” and its st atement denying his motion: “the conduct involving the use of a firearm in this case is exactly what was intended to be proscribed by the effects of that statute and I do not see any good cause based upon the overall conduct in this case to de part from imposing the penaltie s under [section] 12022.53[, subdivision] (b).” Defendant claims these statements show the trial court thought it could not consider his lack of a significant prior record and denied the motion based solely on the nature of the current offense. We disagree. The judge obviously consid ered the facts of the case in considering whether to impose the enhancements. The nature of the current offense is not the only relevant consideration to determining whether a punishment is unconst itutionally cruel or unusual. Other factors to be considered include the nature of th e offense and the offender, the penalty imposed for more serious crimes, and the penalty imposed for the same offense in other jurisdictions. ( In re Lynch (1972) 8 Cal.3d 410, 425-427 ( Lynch ).) If the trial court thought it could not consider valid factors lik e defendant’s prior record, then a remand for resentencing would be appropriate. In any event defendant did not raise an objection to the trial court on this ground, which forfeits the contention on appeal. ( People v. Speight (2014) 227 Cal.App.4th 1229, 1247-1248.) Defendant claims trial counsel ’s failure to raise an objection constitutes7 ineffective assistance and asks us to ignore the forfeiture a nd consider on the merits the alleged failure to consider his lack of significant criminal record. “To prevail on a claim of ineffective a ssistance of counsel, defendant ‘must establish not only deficient pe rformance, i.e., representation below an objective standard of reasonableness, but also resultant prejudice.’ [Citation.]” ( People v. Hart (1999) 20 Cal.4th 546, 623.) As we shall discuss in part II, post , the 10-year enhancement did not violate the proscription against cruel or unusual punishment. Since the question whether a punishment is cruel or unusual is reviewed de novo as a question of law ( People v. Mantanez (2002) 98 Cal.App.4th 354, 358), defendant could not prevail on his motion if the trial court did in fact consider all relevant factors. Therefore, he was not prejudiced by any alleged refusal to consider hi s lack of a serious prior criminal record. Since trial counsel was not ineffective, we decline to consider the forfeited contention.
II Under section 12022.53, subdivision (b) a defendant who personally uses a firearm when committing one of a certain number of specific felonies, is subject to a 10- year enhancement. Carjacking is one of th e felonies subject to this enhancement. (§ 12022.53, subd. (a)(5).) Defendant contends that imposing this enhancement on him is so disproportionate as to violate the Califor nia Constitution’s proscrip tion against cruel or unusual punishment. We disagree. The California Constitution prohibits “Cruel or unus ual punishment.” (Cal. Const., art. I, § 17.) We construe this prov ision separately from its counterpart in the federal Constitution. ( Raven v. Deukmejian (1990) 52 Cal.3d 336, 355.) “[I]n California a punishment may viol ate [California Constitution, article I, section 17] if, although not cruel or unusual in its method, it is so disproportionate to the crime for which it is inflicte d that it shocks the conscien ce and offends fundamental notions of human dignity.” ( Lynch, supra , 8 Cal.3d at p. 424, fn. omitted.) To assess disproportionality, we (1) examine the nature of th e offense and the offender,8 (2) compare the sentence with punishments for more seri ous offenses in the same jurisdiction, and (3) compare th e sentence with punishments fo r the same offense in other jurisdictions. ( Id . at pp. 425-427.) “In examining ‘the nature of the offens e and the offender,’ we must consider not only the offense as defined by th e Legislature but also ‘the facts of the crime in question’ (including its motive, its manner of commi ssion, the extent of the defendant’s involvement, and the consequences of his acts ); we must also consider the defendant’s individual culpability in light of his age, prior criminalit y, personal characteristics, and state of mind. [Citations.]” ( People v. Crooks (1997) 55 Cal.App.4th 797, 806.) Defendant relies on only th e first technique listed in Lynch , the nature of the offense and offender. He claims his offense is not a standard carjacking, as the crime was not planned, and was not “motivated by gree d, criminality, or gang-related conduct.” According to defendant, this case is un like the standard carjacking, “in which a perpetrator arms himself and goes out to take someone else’s vehicle.” He further asserts that he thought he had paid his bill before the attempted repossession, and that losing the Navigator would have devastati ng consequences on his family, as it was used to take his cancer-stricken son to medical appointments. Defendant also argues that the manner in which he used the gun further supports a find ing of disproportionality , as it was not used as a first resort, he did not fire the weapon or point it directly at the victims, and the victims were not particularly vulnerable. In light of defendant’s pe rsonal characteristics, his education, employment history, and lack of a personal record, defendant concludes that imposing the enhancement was grossly di sproportionate and therefore violated the California Constitution. Defendant may be correct that this is not a standard carjacking because it was committed against repossession ag ents rather than the owne r and driver of a motor vehicle. It was nonetheless a violent felony in which defendant’s use of a firearm was integral to completing the cr ime. Defendant does not cont end that Monks and Meyer did9 not have a right to repossess his vehicle. 4 His attempts to st op them from repossessing his Navigator were unsuccessful until he co mmitted the enhancement by personally using a firearm. Defendant did not use the gun on mere impulse; he twice asked his girlfriend to retrieve it. He also threatened to shoot Monks and Meyer before he got the weapon. We agree with the trial court that defenda nt’s actions are those that the Legislature sought to deter when it enact ed the enhancement in question. In addition to allowing defendant to complete a carjacking, his pers onal use of a firearm imposed substantial harm to his victims. Monks quit his job after his encounter with defendant. He did so because he did not want to put himself in “that situation” ag ain. Meyer also refused to work in repossession after defendant’s carjacki ng. Like Monks, he did not want to put himself “in that situation again.” Notw ithstanding his arguments to the contrary, defendant’s use of a firearm here was not mitigated but well within the norm of culpability contemplated in the section 12022.53, su bdivision (b) enhancement. Defendant’s personal characteristics do no t support a different result. He was 32 years old at the time of the crime, so his cu lpability is not mitigated by youth. Although his criminal record is not significant, “[t]he lack of a criminal reco rd is not determinative in a cruel or unusual punishme nt analysis. [Citations.]” ( People v. Felix (2003) 108 Cal.App.4th 994, 1001.) While defendant supported himself a nd his family, this cannot insulate him from th e gun-use enhancement. It is not grossly disproportionate to impose a 10-year enhancement on a defendant for personally using a firearm after threaten ing to shoot his victim s, and where his doing

4 Section 215, subdivision (a) states: “ ‘C arjacking’ is the felonious taking of a motor vehicle in the possession of another, from his or her person or immediate presence, or from the person or immediate presence of a pa ssenger of the motor vehicle, against his or her will and with the intent to either perm anently or temporarily deprive the person in possession of the motor vehicle of his or he r possession, accomplished by means of force or fear.” If the agents did not have a right to repossess the vehicle, then defendant would not be guilty of carjacking.10 so places them in such fear th at they quit working in the car repossession field. The trial court did not err when it denied his motion to strike the enhancement. DISPOSITION The judgment is affirmed.

BLEASE , J.

We concur:

RAYE , P. J.

ROBIE , J.