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NOT TO BE PUBLISHED 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 This opinion has not been certified for publication 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 personally 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 sentenced him to 13 years in state prison. 

 On appeal, defendant contends the trial court misunderstood the scope of its 

authority to strike the enhancement as cruel and unusual punishment, and imposition of 

 

1 Undesignated statutory references are to the Penal Code. 
2 

the enhancement violates the state prohibition against cruel or unusual punishment. We 

affirm. 

BACKGROUND 

The Crime

 On July 7, 2013, defendant was the registered owner 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 and Book Recovery. 

 Around 8:00 p.m., Jeremy 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 and 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, defendant 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 Navigator and told defendant he could retrieve his 

belongings from the vehicle if he gave up the keys. Defendant said he needed some 

things out of the Navigator and questioned whether Monks 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 the 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 paperwork 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. Defendant’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 Navigator. Monks and Meyer tried to calm 

defendant down, but he did not seem to care and kept telling the woman to “grab the 

gun.” 

 Defendant went into the house to get his keys. When defendant returned, Monks 

asked for the keys. Defendant pulled a semiautomatic pistol out of his pocket and said 

that they were not going to take his vehicle. Monks undid the straps, lowered the 

Navigator, and quickly left with Meyer. He called his supervisor, 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 Navigator 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 the 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 punishments 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 those 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 disproportionate 
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punishment. He additionally noted that incarceration will gravely affect his girlfriend 

and the four children he supports as the sole breadwinner. Finally, the manner in which 

defendant conducted his life, avoiding gangs while growing up in the Oak Park 

neighborhood, finishing high school and attending two years of college, and owning and 

operating his own business, shows that the incident leading to his conviction was out of 

character for his personality. 

 At the hearing on the motion, defense counsel reiterated the contentions regarding 

changes to the law, the mitigated facts of the 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 carjacking or robbery or some similar offense,” 

the court asked what about the nature of the offense “mitigates against applying the 

[section] 12022.53[, subdivision] (b) uniformly?” Counsel replied that this was not a 

standard carjacking and the firearm here was used in a “de minimis way.” The court 

replied this was the type of situation section 12022.53 was intended to prevent, a person 

in an emotionally charged situation using a firearm to commit an offense. 

 The court asked the prosecutor for his opinion 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 defendant 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, defendant had a sustained delinquency petition for misdemeanor 

vandalism. (Former § 594, subd. (b)(4).) As an adult, he has misdemeanor convictions 

for false imprisonment (§ 236) and resisting an officer (§ 148, subd. (a)(1)). 
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through legislation or the initiative process rather 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 authorities that have been 

cited. I’ve done some 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.” Continuing, the court asked the 

prosecutor whether justice would not be served if it granted defendant’s request and 

imposed a five-year enhancement under section 12022.5 rather than the 10-year section 

12022.53 enhancement. 

 The prosecutor argued there was nothing mitigating about defendant’s offense. 

Asked for additional comment, defense counsel said if someone had come up to 

defendant’s home, knocked on the door, and said he had slept with defendant’s girlfriend, 

defendant could receive a lesser sentence for shooting that man 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 cause 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 trial court did not understand its authority to strike his 

punishment as cruel or unusual under the California 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 that the court limited its consideration to the 
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nature of his current offense. Defendant asks us to reverse the denial of his motion to 

strike the enhancement and remand for a new hearing. 

 Defendant’s contention is based on two statements 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 statement 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 depart from imposing the penalties 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 considered 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 unconstitutionally cruel or unusual. Other factors 

to be considered include the nature of the 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 like 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 constitutes 
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ineffective assistance and asks us to ignore the forfeiture and consider on the merits the 

alleged failure to consider his lack of significant criminal record. 

 “To prevail on a claim of ineffective assistance of counsel, defendant ‘must 

establish not only deficient performance, 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 his 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 the 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 California Constitution’s proscription against cruel or 

unusual punishment. We disagree. 

 The California Constitution prohibits “Cruel or unusual punishment.” (Cal. 

Const., art. I, § 17.) We construe this provision separately from its counterpart in the 

federal Constitution. (Raven v. Deukmejian (1990) 52 Cal.3d 336, 355.) 

 “[I]n California a punishment may violate [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 inflicted that it shocks the conscience 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 the offense and the offender, 
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(2) compare the sentence with punishments for more serious offenses in the same 

jurisdiction, and (3) compare the sentence with punishments for the same offense in other 

jurisdictions. (Id. at pp. 425-427.) 

 “In examining ‘the nature of the offense and the offender,’ we must consider not 

only the offense as defined by the Legislature but also ‘the facts of the crime in question’ 

(including its motive, its manner of commission, 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 criminality, personal characteristics, and 

state of mind. [Citations.]” (People v. Crooks (1997) 55 Cal.App.4th 797, 806.) 

 Defendant relies on only the 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 greed, criminality, or gang-related conduct.” 

According to defendant, this case is unlike 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 devastating 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 finding 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 personal characteristics, 

his education, employment history, and lack of a personal record, defendant concludes 

that imposing the enhancement was grossly disproportionate and therefore violated the 

California Constitution. 

 Defendant may be correct that this is not a standard carjacking because it was 

committed against repossession agents rather than the owner 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 crime. Defendant does not contend that Monks and Meyer did 
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not have a right to repossess his vehicle.4 His attempts to stop them from repossessing 

his Navigator were unsuccessful until he committed 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 defendant’s actions are those that the Legislature 

sought to deter when it enacted the enhancement in question. In addition to allowing 

defendant to complete a carjacking, his personal 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” again. Meyer also refused to 

work in repossession after defendant’s carjacking. Like Monks, he did not want to put 

himself “in that situation again.” Notwithstanding 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, subdivision (b) enhancement. 

 Defendant’s personal characteristics do not support a different result. He was 32 

years old at the time of the crime, so his culpability is not mitigated by youth. Although 

his criminal record is not significant, “[t]he lack of a criminal record is not determinative 

in a cruel or unusual punishment analysis. [Citations.]” (People v. Felix (2003) 

108 Cal.App.4th 994, 1001.) While defendant supported himself and his family, this 

cannot insulate him from the gun-use enhancement. 

 It is not grossly disproportionate to impose a 10-year enhancement on a defendant 

for personally using a firearm after threatening to shoot his victims, and where his doing 

 

4 Section 215, subdivision (a) states: “ ‘Carjacking’ 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 passenger of the motor vehicle, against his or 

her will and with the intent to either permanently or temporarily deprive the person in 

possession of the motor vehicle of his or her 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. 
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so places them in such fear that 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.