Filed 11/30/20

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

RENE AVILA,

Defendant and Appellant.

 B294632

 (Los Angeles County

 Super. Ct. No. KA117445)

APPEAL from a judgment of the Superior Court of 

Los Angeles County, Steven D. Blades, Judge. Remanded for 

resentencing.

Tracy L. Emblem, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Noah Hill, Michael C. Keller and Charles J. 

Sarosy, Deputy Attorneys General, for Plaintiff and Respondent.

* Discussion sections I and II are not certified for 

publication. (See Cal. Rules of Court, rules 8.1105, 8.1110.)
2

A jury found Rene Avila guilty of attempted robbery and of 

attempted extortion. On appeal, he contends that reversal of the 

judgment is required because gang evidence was erroneously 

admitted against him and there is insufficient evidence to 

support attempted extortion. In the unpublished portion of this 

opinion, we reject these contentions. However, in the published 

portion of this opinion, we find that the trial court abused its 

discretion by denying Avila’s Romero1 motion and, moreover, the 

sentence imposed on Avila is cruel or unusual punishment under 

our California Constitution. We therefore remand for 

resentencing. 

BACKGROUND

On February 19, 2018, Bernardino Castro was selling 

oranges and flowers at a freeway off-ramp. Castro speaks 

Spanish and understands some English. Using a Spanish 

speaking companion to speak to Castro, Avila told Castro to pay 

him $100 in rent in order to sell at the location, claiming that it 

was his “barrio,” which Castro understood as a reference to 

gangs. When Avila said “money,” Castro understood that Avila

was asking for $100. Avila left but returned the next day and 

asked for the money. When Castro said he didn’t have the 

money, Avila squashed two bags of oranges and left. Castro 

testified that the interaction with Avila made him “nervous” and 

that he thereafter sold his oranges at a different location because 

he was afraid Avila would do something to him.

The next day, February 21, 2018, Pedro Blanco-Quiahua 

was selling oranges near the same freeway off-ramp. Avila 

1 People v. Superior Court (Romero) (1996) 13 Cal.4th 497 

(Romero).
3

approached and threw a bag of oranges on the ground, stomped 

on them, and said, “money, money, money.” Avila then stomped 

on another bag of oranges. Scared, Blanco-Quiahua backed 

away. Avila left. A witness who worked nearby had noticed 

Avila sitting for more than 20 minutes in front of a shop. The 

witness saw Avila tossing bags of oranges into the dirt and heard 

Avila say, “[m]oney, give me money.” 

Based on this evidence, a jury found Avila guilty of the 

attempted second degree robbery of Blanco-Quiahua (Pen. Code,2

§§ 664, 211; count 1) and of the attempted extortion of Castro 

(§§ 664, 518; count 2). On November 30, 2018, the trial court 

denied Avila’s Romero motion to strike a prior conviction and 

sentenced him to 25 years to life plus 14 years.

DISCUSSION

I. Admission of gang evidence 

Although the trial court excluded gang evidence, a 

prosecution witness referred to gangs. Avila now contends that

this reference to gangs violated his due process right to a fair 

trial; hence, his motion for a mistrial should have been granted.

A. Additional background

Avila was not charged with a gang allegation, and there 

was no evidence the crimes were gang-related. The trial court 

therefore excluded evidence a witness thought Avila was a gang 

member, finding the evidence to be more prejudicial than 

2 All further statutory references are to the Penal Code

unless otherwise indicated.
4

probative. Accordingly, the trial court directed the prosecutor to 

remind her witnesses not to mention gangs.

Notwithstanding the trial court’s order, the prosecutor 

asked Castro, when Avila “said to you that this was his barrio, 

what did that mean to you?” The witness responded, “That he is 

a gang member or something like that.” The prosecutor asked if 

Castro was in fear for his safety, and the trial court then 

sustained defense counsel’s leading objection to that question. 

Out of the jury’s presence, the prosecutor explained that she had 

told witnesses not to mention gangs but had failed to have a 

specific conversation with Castro. The defense moved for a 

mistrial. In response, the prosecutor asserted that she did not 

know the witness would say “barrio” meant gang to him.3 The 

trial court denied the mistrial motion but offered to give a 

curative instruction upon request. Defense counsel did not ask 

for a curative instruction, and none was given.

B. Avila’s right to a fair trial not irreparably damaged

Avila moved for a mistrial based on Castro’s statement he 

thought Avila was referring to gangs when Avila used the word 

“barrio.” Such a motion should be granted only when a party’s 

chances of receiving a fair trial have been irreparably damaged. 

(People v. Clark (2011) 52 Cal.4th 856, 990.) Whether a 

particular incident is incurably prejudicial requires a nuanced, 

fact-based analysis which the trial court is in the best position to 

conduct. (People v. Chatman (2006) 38 Cal.4th 344, 369–370.) 

3 The prosecutor later recollected that “maybe” she did tell 

Castro not to use the word gang and confirmed with her 

investigating officer that she had. 
5

Hence, we review an order denying a motion for mistrial under 

the deferential abuse of discretion standard. (Clark, at p. 990.)

Given the potentially prejudicial effect of gang membership 

evidence, it should be excluded in cases not involving a gang 

enhancement, where its probative value is minimal. (People v. 

Albarran (2007) 149 Cal.App.4th 214, 223; accord, People v. 

Avitia (2005) 127 Cal.App.4th 185, 192.) Gang evidence is 

inadmissible to show a defendant’s criminal disposition or bad 

character as a vehicle to create an inference the defendant 

committed the crime. (Avitia, at p. 192.) 

Here, there was no evidence the crimes were gang-related, 

and there was no gang allegation. The trial court therefore 

properly excluded gang evidence. Castro’s testimony that he 

understood Avila’s reference to “barrio” to mean that Avila was a 

gang member should not have come in. Even so, when a 

witness’s volunteered statement is not attributable to either 

party, a mistrial is called for only if the misconduct is so 

inherently prejudicial as to threaten the defendant’s right to a 

fair trial despite admonitions from the court. (People v. Molano

(2019) 7 Cal.5th 620, 675–676.) Although the trial court 

indicated it would give a curative instruction at the request of the 

defense, the defense did not request one, presumably as a matter 

of strategy as defense counsel had expressed concerns about 

highlighting the issue for the jury. 

Notwithstanding the inflammatory nature of gang 

evidence, the lone and fleeting reference to gang evidence did not 

deprive Avila of a fair trial. Castro merely testified that when 

Avila said “barrio,” Castro thought he was a gang member.
6

Beyond Castro’s speculation, there was no other evidence Avila 

was a gang member.4 

Avila, however, argues that the comment was highly 

prejudicial because it went to the use of a threat, fear, or force 

element of attempted extortion in CALCRIM No. 1830. He 

suggests the gang evidence was the only evidence that Avila 

threatened Castro. That is incorrect. When Castro refused to 

give Avila money, Avila crushed a bag of oranges. This act 

satisfied the element, especially when considered in the context 

of Avila’s demand. (See People v. Bollaert (2016) 248 Cal.App.4th 

699, 725 [threat implied from all circumstances].) Thus, there 

was other compelling evidence that Avila threatened Castro or 

used force or fear in his attempt to extort money, apart from the 

lone reference to gangs.

People v. Avitia, supra, 127 Cal.App.4th 185 is 

distinguishable. The defendant in that case was charged with 

grossly negligent discharge of a firearm. (Id. at p. 191.) The trial 

court admitted evidence that there was gang graffiti in Avitia’s 

bedroom. Avitia found that the gang evidence was irrelevant to 

any issue at trial, as there was no allegation the crime was gangrelated, and the evidence did not link Avitia to the guns. The 

evidence was particularly irrelevant given that it was undisputed 

Avitia possessed the guns. Further, the Court of Appeal found 

that the gang evidence severely undercut Avitia’s defense and 

credibility. That is, Avitia contended he was a former military 

small arms repairman and gun hobbyist who was conducting 

target practice with a pellet gun, which is a lawful activity. But

4 Avila has a teardrop tattoo on his face, but no evidence or 

mention was made about it at trial. 
7

evidence he was a gang member suggested he had a criminal 

disposition; hence, his story was false, and his arsenal of guns 

presented a danger to the community. (Id. at p. 195.) Avitia thus 

concluded that the gang evidence prejudiced Avitia.

We do not perceive any similar prejudice here. The gang 

evidence did not undercut any defense or suggest that the 

witness’s version of events was false, i.e., that Avila did not 

demand money or crush the oranges. Rather, as we have said, to 

the extent the gang evidence went to the force or fear element of 

the crimes, there was other compelling evidence of that element.

Avila also points out that CALCRIM No. 1830 states the 

“threat may involve harm to be inflicted by the defendant or 

someone else.” (Italics added.) He argues that the jury would 

have understood the “someone else” to be a gang member based 

on Castro’s stray remarks and comments the prosecutor made in 

closing argument that Avila was “terrorizing” the victims. 

However, “terrorizing” was not the prosecutor’s word. A witness 

used that word to describe what Avila did to Blanco-Quiahua. In 

repeating that word in her closing argument, the prosecutor drew 

no connection to gangs. 

II. Sufficiency of the evidence

Avila next contends there is insufficient evidence of 

attempted extortion, specifically, that he accomplished the crime 

by threat or force.5 We disagree.

“ ‘When considering a challenge to the sufficiency of the 

evidence to support a conviction, we review the entire record in 

the light most favorable to the judgment to determine whether it 

5 The trial court denied Avila’s section 1118.1 motion as to 

this count. 
8

contains substantial evidence—that is, evidence that is 

reasonable, credible, and of solid value—from which a reasonable 

trier of fact could find the defendant guilty beyond a reasonable 

doubt. [Citation.] We presume in support of the judgment the 

existence of every fact the trier of fact reasonably could infer from 

the evidence. [Citation.] If the circumstances reasonably justify 

the trier of fact’s findings, reversal of the judgment is not 

warranted simply because the circumstances might also 

reasonably be reconciled with a contrary finding.’ ” (People v. 

Covarrubias (2016) 1 Cal.5th 838, 890.)

Extortion is obtaining another’s property or other 

consideration, with the person’s consent but induced by the 

wrongful use of force or fear. (§ 518.) The elements of attempted 

extortion are a specific intent to commit extortion and a direct 

but ineffectual act done toward its commission. (People v. Ochoa 

(2016) 2 Cal.App.5th 1227, 1230.) A defendant may induce fear 

by a threat to do an unlawful injury to the person or property. 

(§ 519.) 

Likening this case to People v. Ochoa, supra, 2 Cal.App.5th 

1227, Avila contends there was no evidence he attempted to use a 

threat or force to induce Castro to give him money. Ochoa is not 

on point because the person or entity from whom the defendant 

in that case tried to extort money was not the victim identified in 

the information. Since there was no evidence the defendant tried 

to extort money from the person named in the information, Ochoa 

is more about the procedural due process requirement of giving a 

defendant notice of the specific charge than it is about sufficiency 

of the evidence. 

As to the sufficiency of the evidence here, Avila makes 

much of his use of a translator to convey his threat to Castro. In 
9

doing so, Avila misstates the record when he asserts that Castro 

did not understand what Avila and the translator were saying. 

To the contrary, Castro’s limited English did not prevent him 

from concluding that Avila wanted money. Moreover, when Avila 

returned the next day without a translator and demanded “the 

money,” Castro understood. Avila then crushed Castro’s oranges, 

driving home his point so clearly that Castro was afraid to sell at 

the location for several days. 

Avila argues he did not attempt to use force or a threat 

because he crushed the oranges after Castro refused to give him 

money. However, Castro—and the jury—could have reasonably 

understood that Avila crushed the oranges to force Castro into 

relenting. In any event, attempted extortion does not contain a 

timing requirement regarding when the force or threat must be 

applied, especially where, as here, the entire event occurs in a 

short period of time. Rather, as we have said, the threat may be 

implied from all the circumstances. (People v. Bollaert, supra, 

248 Cal.App.4th at p. 725.) 

III. Romero

Avila admitted having three prior strikes within the 

meaning of the “Three Strikes” law. The trial court denied 

Avila’s Romero motion to strike any of them. Avila now contends 

that the trial court abused its discretion by denying his motion. 

We agree. 

While the purpose of the Three Strikes law is to punish 

recidivists more harshly (People v. Davis (1997) 15 Cal.4th 1096, 

1099), not all recidivists fall within the spirit of that law. A trial 

court therefore may strike or dismiss a prior conviction in the 

furtherance of justice. (§ 1385, subd. (a); Romero, supra, 

13 Cal.4th at p. 504.) When considering whether to strike a prior 
10

conviction, the factors a court considers are whether, in light of 

the nature and circumstances of the defendant’s present felonies 

and prior serious and/or violent felony convictions, and the 

particulars of the defendant’s 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 

the defendant had not previously been convicted of one or more 

serious and/or violent felonies. (People v. Williams (1998) 

17 Cal.4th 148, 161.)

We review a trial court’s ruling on a Romero motion under 

the deferential abuse of discretion standard, which requires the 

defendant to show that the sentencing decision was irrational or 

arbitrary. (People v. Carmony (2004) 33 Cal.4th 367, 375, 378.) 

It is not enough that reasonable people disagree about whether to 

strike a prior conviction. (Id. at p. 378.) The Three Strikes law 

“not only establishes a sentencing norm, it carefully 

circumscribes the trial court’s power to depart from this 

norm . . . [T]he law creates a strong presumption that any 

sentence that conforms to these sentencing norms is both rational 

and proper.” (Ibid.) Only extraordinary circumstances justify 

finding that a career criminal is outside the Three Strikes law. 

(Ibid.) Therefore, “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.” (Ibid.) 

That only extraordinary circumstances justify deviating 

from the three strikes sentencing scheme does not mean such 

cases do not exist. (People v. Vargas (2014) 59 Cal.4th 635, 641.) 

And the abuse of discretion standard is neither “empty” (People v. 

Williams, supra, 17 Cal.4th at p. 162) nor are all recidivists the 

kind of career criminals appropriately considered under that 
11

scheme. Cumulative circumstances, including that a defendant’s 

crimes were related to drug addiction and the defendant’s 

criminal history did not include actual violence, may show that 

the defendant is outside the spirit of the Three Strikes law. 

(People v. Garcia (1999) 20 Cal.4th 490, 503.) Also, an abuse of 

discretion may be found where a trial court considers 

impermissible factors, and, conversely, does not consider relevant 

ones. (People v. Carmony, supra, 33 Cal.4th at p. 378.) 

That is precisely what occurred here. The trial court did 

not consider factors relevant to the nature and circumstances of 

Avila’s prior strikes. Avila committed his first strike offenses (a 

second degree robbery and an assault with a knife) on the same 

occasion6 in 1990 when he was 18 years old.7 According to the 

preliminary hearing transcript in that case, Avila and two

accomplices robbed a man who was filling newspaper vending 

machines. The man testified that Avila held a knife to his throat, 

and the man’s arm was cut when the man threw his arm up. 

Avila was paroled in 1991. Then, in 1992, when Avila was 20

years old, he committed his last and most recent strike offense, a 

6 Multiple convictions arising from a single act against a 

single victim count as one strike. (People v. Vargas, supra,

59 Cal.4th at p. 637.) Avila’s robbery and assault with a deadly 

weapon were not a single act, and therefore Vargas does not 

apply. Nonetheless, Vargas does not preclude a trial court from 

considering that strikes were committed on the same occasion as 

relevant to the nature and circumstances of those crimes, even if 

that fact does not compel striking a prior. 

7 As a juvenile, Avila had six sustained petitions primarily 

for being under the influence of drugs or possessing them, 

although he also had a sustained petition for burglary and for 

resisting arrest. 
12

second degree robbery, as well as possession of a firearm by a 

felon. He was sentenced to 10 years in prison.8

In evaluating these prior strikes, the trial court appeared 

to agree they were remote in time but then noted that section 

667, subdivision (c)(3) provides that the time between a strike 

and the current felony does not affect the imposition of sentence. 

The trial court said it was “not quite sure how that coincides with 

this [case], but so be it.” However, all that section suggests is 

that the remoteness of prior strikes alone is not sufficient to take 

a defendant out of the spirit of the Three Strikes law. Still, 

remoteness remains a factor in mitigation. (See People v. Strong 

(2001) 87 Cal.App.4th 328, 342; People v. Bishop (1997) 56 

Cal.App.4th 1245, 1250–1251.) Avila’s prior strikes were from 

1990 and 1992, so they were 28 and 26 years old, respectively, 

when he committed the current offenses in 2018. That is a 

significant lapse of time to say the least. 

It is also significant that Avila committed his prior strikes 

when he was under the age of 21. Had he committed those 

crimes now while that age, he would be considered a youth 

offender entitled to expanded parole consideration. (See, e.g., § 

3051, subd. (a)(1) [youth offender is a person 25 years old or 

younger].) The trial court noted that Avila’s age when he 

committed the strikes does not preclude a sentence, though it 

comes into play when he is eligible for parole. That much is true. 

But it is not the salient point for the purposes of Romero. Avila’s 

age when he committed his strikes, even if not dispositive, is 

8 Avila was paroled in November 1997, but parole was 

revoked five months later. In August 1998, he was released on 

parole, which was again revoked two months later. 
13

plainly relevant to the nature and circumstances of the strikes 

and could be a mitigating factor. This is in line with the 

increasing recognition that young adults are constitutionally 

different from adults for sentencing purposes because of their 

diminished culpability and greater prospects for reform. (See, 

e.g., In re Jenson (2018) 24 Cal.App.5th 266, 276 & cases cited 

therein.) That we are considering what sentence to impose on the 

middle-aged Avila does not preclude consideration that it was a 

youthful Avila who committed the prior strikes, for the purposes 

of Romero. The trial court, however, mistakenly believed that it 

could not consider this mitigating factor at sentencing. 

Instead, the trial court’s decision that Avila fell within the 

spirit of the Three Strikes law hinged primarily on the nature 

and circumstances of his current offenses. The trial court noted 

that Avila had victimized vulnerable people eking out a living by 

selling fruit. What right, the trial court questioned, did Avila 

have to charge rent to people selling things on the street? The 

trial court added that Avila committed his current crimes in a 

“violent” and “brutal” way by intimidating victims making just 

$300 a week. “His acts really amounted to thuggery.” The trial 

court then speculated that had someone not called the police, 

“who knows what would have happened.” 

Without a doubt, Avila’s conduct was offensive. Preying on 

some of the most vulnerable people in society is contemptible. 

The prosecutor’s own opening statement aptly characterized 

Avila as a “bully.” However, the trial court speculated about 

what might have happened had the police not been called, 

implying the infliction of physical harm to the victims that never 

appeared in the evidence at trial. Sentencing is not the proper 

venue for the trial court’s imagination. Ruling on a Romero 
14

motion requires consideration of the nature and circumstance of 

the crime actually committed, not a crime that might have 

occurred. Moreover, the record does not support the trial court’s 

speculation. When the victims refused to give Avila money, he 

destroyed several bags of oranges and left. While we do not make 

light of this intimidating behavior, it was not violent or brutal by 

any stretch. Avila did not use a weapon or otherwise use physical 

violence against the victims, nor did he make any specific threats. 

He squashed oranges. 

In characterizing Avila’s current crimes as violent, the trial 

court misapprehended their nature. Attempted robbery is a 

serious crime but not a violent one. (§ 1192.7, subd. (c)(19), (39).) 

Attempted extortion is neither a violent nor serious crime. 

(§§ 667.5, subd. (c), 1192.7, subd. (c).) Nor was the trial court 

merely hyperbolically describing Avila’s crimes as violent. The 

trial court erroneously sentenced Avila as a violent offender by 

limiting his conduct credits to a maximum of 15 percent of actual 

time served under section 2933.1, subdivisions (a) and (c). 

The fact is that Avila has not committed a violent felony

since his strike offenses, showing that the severity of his record is 

decreasing. The trial court took note of this circumstance but 

otherwise noted that Avila “still ha[d] been to prison a couple of 

times since.” But for what did Avila go to prison we ask? In 

1999, Avila was convicted of unlawful sexual intercourse with a 

minor under the age of 16 (§ 261.5, subd. (d)) and sentenced to 

four years in prison. He later married her, and they had a child 

together.9 Avila was convicted in 2005 of misdemeanor drug 

9 Avila’s victim/wife stated that her mother allowed the 

relationship. 
15

possession. His last felony offense was in 2008 for drug 

possession in violation of Health and Safety Code section 11350, 

subdivision (a), a crime which has since been reclassified as a 

misdemeanor under Proposition 47 (see People v. Valencia (2017) 

3 Cal.5th 347, 355). Thus, Avila’s poststrike criminal history is 

not characterized by serious or violent crimes. 

Also, after being incarcerated for the 2008 drug possession, 

Avila was released from prison in 2011. The record does not 

show that Avila committed any crimes while incarcerated from 

2008 to 2011. Upon his release in 2011, he incurred 

misdemeanors for possessing a controlled substance, being an 

unlicensed driver, and driving on a suspended license. 

Otherwise, he remained crime free until committing the current 

offenses in 2018. Given Avila’s decade long period of committing 

no felonies and the minor nature of the offenses he did commit 

during that period, it is inaccurate to characterize him as a 

career or habitual criminal or, in the prosecutor’s words, as 

having a “continuous criminal history” from 1989 to the present. 

Avila is not comparable to the defendant who has led a 

continuous life of crime so as to counteract the extreme 

remoteness of his priors. (See, e.g., People v. Humphrey (1997) 58 

Cal.App.4th 809, 813.) 

With respect to Avila’s background, character and 

prospects, the trial court referred to Avila’s drug addiction but 

did not reach a conclusion whether it was a mitigating or 

aggravating factor, instead noting that it could be a mitigating 

factor unless Avila failed to address the problem, in which case it 

could be an aggravating factor. (See generally People v. Gaston 

(1999) 74 Cal.App.4th 310, 322.) While we do not disagree with 

the general notion that a defendant’s drug problem may have 
16

little mitigating value where the problem is longstanding (see, 

e.g., People v. Regalado (1980) 108 Cal.App.3d 531, 539–540), we 

disagree that is always necessarily the case (see Cal. Rules of 

Court, rule 4.423(b)(2) [defendant’s mental or physical condition 

is mitigating factor in sentencing]). Just as the law is evolving in 

its understanding and treatment of juvenile offenders, it is 

evolving in how it treats drug users. Since the passage of 

Proposition 47, for example, nonserious, nonviolent drug 

possession offenses are misdemeanors rather than felonies. 

(People v. DeHoyos (2018) 4 Cal.5th 594, 597.) 

According to Avila’s Romero motion, which included a 

mitigation report, Avila began using drugs when he was 12 years 

old. His father, who also abused drugs and alcohol, gave him 

PCP and cocaine as a child. As a juvenile, Avila received 

treatment for his drug addiction, which helped. After being 

released from prison in 2004, he continued to struggle with drug 

addiction (as evidenced by his 2005 and 2008 misdemeanor drug 

possession convictions) but he tried to become sober and was able 

to get a job as a trailer driver, which required him to obtain a 

class A driver’s license. However, in 2016, he was injured in a 

car accident, which left him with neck and back pain. He began 

drinking and using drugs again. Just one month after the car 

accident, he was in a second car accident, after which his driver’s 

license was suspended, so he was laid off from work.10 Thus, 

Avila has clearly struggled with drug addiction since he was a 

10 Avila also has been shot three times: when he was 

16 years old a bullet grazed him while he was at a party; when 

he was 26 years old he was shot and, as a result, hospitalized for 

two weeks; and in 2017, he was shot in the elbow, which required 

surgery.
17

child. But it cannot be said he has never addressed it. He had 

treatment for it when he was a juvenile. After Avila was released 

from prison in 2004, he tried to become sober and obtained and 

maintained gainful employment. Further, Avila’s wife spoke well 

of his character, reporting he was a good father to their daughter

and supported their child when he had a job. 

Avila’s age, 47 when sentenced, is also relevant to his 

background, character, and prospects. Although Avila’s middle 

age status alone does not remove him from the spirit of the Three 

Strikes law (see People v. Strong, supra, 87 Cal.App.4th at pp.

332, 345), given his age, his three strikes sentence coupled with 

the determinate term means he will likely die in prison. Avila 

indeed may be deserving of a lengthy sentence. But even under 

the defense’s proposed 12 years four months sentence,11 Avila 

would have been imprisoned and not eligible for parole until 

approaching 60 years of age. The length of a sentence is the 

“overarching consideration” in deciding whether to strike a prior 

conviction because the underlying purpose of striking a prior 

conviction is the avoidance of unjust sentences. (People v. Garcia, 

supra, 20 Cal.4th at p. 500.) 

For these reasons, no reasonable person could agree that 

the sentence imposed on Avila was just. Avila’s prior strikes 

were remote and committed when he was of diminished 

culpability based on his age, a factor the trial court erroneously 

concluded was inapplicable to the formulation of his sentence. 

Despite the trial court’s characterization of the facts, Avila’s 

11 The proposed 12 years four months sentence was 

composed of the high term of three years doubled to six years and 

five years for the prior on count 1 plus eight months doubled to 

16 months on count 2. 
18

current offenses were not violent and, on the spectrum of 

criminal behavior, fall closer to the end of less reprehensible 

conduct. Much of his criminal conduct appears to be related to 

his drug addiction rather than to sinister motives and falls well 

outside the realm of what could be considered the work of a 

career criminal. We therefore conclude that the trial court 

abused its discretion by denying Avila’s Romero motion.

IV. Cruel or unusual punishment

Worse, Avila’s sentence is cruel or unusual punishment

under the California Constitution, article I, section 17.12 A 

punishment is cruel or unusual in violation of the California 

Constitution if “it 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

(Lynch).)13 Three techniques are employed to make this 

determination: first, we examine the nature of the offense and/or 

the offender with particular regard to the degree of danger both 

present to society; second, compare the challenged penalty with 

12 Avila’s counsel did not object that the sentence was cruel 

and/or unusual punishment, thereby forfeiting the claim on 

appeal. However, we have the discretion to address the merits. 

(See, e.g., People v. Reyes (2016) 246 Cal.App.4th 62, 86; In re 

Sheena K. (2007) 40 Cal.4th 875, 887, fn. 7.)

13 The Eighth Amendment of the United States 

Constitution prohibits cruel and unusual punishment. The 

distinction in wording between the federal and state constitutions 

is substantive and not merely semantic. (People v. Baker (2018) 

20 Cal.App.5th 711, 723.) We decide Avila’s case only under the 

California Constitution. 
19

the punishments for more serious offenses in California; and 

third, compare the challenged penalty with the punishments 

prescribed for the same offense in other states. (Id. at pp. 425–

427.) Disproportionality need not be established in all three 

areas. (People v. Dillon (1983) 34 Cal.3d 441, 487, fn. 38.) 

In our tripartite system of government, the legislative 

branch defines crimes and prescribes punishment. (Lynch, supra, 

8 Cal.3d at p. 414.) It is therefore the rare case where a court 

could declare the length of a sentence mandated by the 

Legislature unconstitutionally excessive. (People v. Martinez 

(1999) 76 Cal.App.4th 489, 494.) Even so, it is the judiciary’s 

responsibility to condemn any punishment that is cruel or 

unusual. (Lynch, at p. 414.) We independently review whether a 

punishment is cruel or unusual, considering any underlying 

disputed facts in the light most favorable to the judgment. 

(People v. Edwards (2019) 34 Cal.App.5th 183, 190.)

A. The nature of the offense and of the offender

The first Lynch technique requires considering the nature 

of the offense in the abstract as well as the facts of the crime in 

question, “i.e., the totality of the circumstances surrounding the 

commission of the offense . . . , including such factors as its 

motive, the way it was committed, the extent of the defendant’s 

involvement, and the consequences of his acts.” (People v. Dillon, 

supra, 34 Cal.3d at p. 479.) Courts must view the nature of the 

offender in the concrete rather than the abstract, considering the 

defendant’s age, prior criminality, personal characteristics, and 

state of mind. (Ibid.) Stated simply, the punishment must fit the 

individual criminal. (Lynch, supra, 8 Cal.3d at p. 437.) 

Where, as here, the defendant is a recidivist, it is not as a 

general rule cruel or unusual to enhance a sentence based on the 
20

defendant’s status as a recidivist; still, “the ultimate punishment, 

all facts considered,” must not be disproportionate to the crime. 

(People v. Mantanez (2002) 98 Cal.App.4th 354, 359; see Solem v. 

Helm (1983) 463 U.S. 277, 284–288.) “Accordingly, the current 

offense must bear the weight of the recidivist penalty imposed.” 

(People v. Carmony (2005) 127 Cal.App.4th 1066, 1072.) Because 

the penalty is imposed for the current offense, the focus must be 

on the seriousness of that offense: past offenses alone will not 

justify imposing an enhanced sentence. (Id. at pp. 1079–1080.)

Avila’s current offenses are attempted robbery and 

attempted extortion. Neither are violent crimes, and extortion is 

neither serious nor violent. (§§ 667.5, subd. (c), 1192.7, subd. (c).) 

Although both require the attempt to use force or fear (§§ 211, 

518), Avila did not use violence against either of his victims. He 

did not verbally or physically threaten them. Rather, when the 

victims refused to give Avila money, he crushed their oranges 

and left. Avila’s motive for his crimes is unclear, though it is 

reasonable to infer it was financial, given that he demanded 

money. Also, the total amount of property damage was about $20 

worth of citrus, a point we make because it is relevant to the 

minor nature of the offenses and not to trivialize the worth of the 

property to the victims. The unsophisticated nature of the 

attempted robbery and attempted extortion committed by Avila 

are thus not comparable to armed robberies, which have been 

described as most heinous in nature (People v. Sullivan (2007) 

151 Cal.App.4th 524, 570). 

As to the consequences of Avila’s actions, he frightened the 

victims, so much so that Castro sold his fruit at a different 

location for several days. However, there are “rational 

gradations of culpability that can be made on the basis of the 
21

injury to the victim or to society in general.” (In re Foss (1974) 

10 Cal.3d 910, 919.) Here, the victims were physically uninjured 

even if emotionally traumatized. Although trying to force 

vendors to pay rent is an affront to society, the harm the victims 

suffered is arguably less than that caused by the crime of 

indecent exposure, which our California Supreme Court described 

as “minimal at most” and not a “sufficiently grave danger to 

society to warrant the heavy punishment of a life-maximum 

sentence.” (Lynch, supra, 8 Cal.3d at p. 431.) A punishment 

passes constitutional muster only if the totality of the 

circumstances surrounding the current offenses can bear the 

weight of the sentence imposed. (See People v. Carmony, supra, 

127 Cal.App.4th at p. 1072.) Avila’s current offenses alone 

cannot justify the sentence imposed. It bears repeating: he 

squashed oranges and was sentenced to life.

Clearly, Avila’s sentence is primarily attributable to his 

recidivist status. But the life sentence required by the Three 

Strikes law must consider “variations in individual culpability.” 

(People v. Carmony, supra, 127 Cal.App.4th at p. 1087.) A “onesize-fits-all” sentence is disproportionate to a current offense 

where the current offense is “minor and the prior convictions are 

remote and irrelevant to the offense.” (Id. at p. 1088.) 

An example of a minor offense is failing to update sex 

offender registration. (People v. Carmony, supra, 127 

Cal.App.4th at p. 1071; but see People v. Meeks (2004) 123 

Cal.App.4th 695.) The defendant in Carmony, at page 1071, had 

three prior serious or violent felonies and was sentenced to 25 

years to life under the Three Strikes law. Given the minimal and 

harmless nature of the defendant’s current offense and the 

relatively light penalty for a simple violation of registration 
22

requirements, his prior offenses almost wholly accounted for the 

extreme penalty imposed. (Carmony, at p. 1080.) After 

considering the Lynch techniques, the court acknowledged that 

the three strikes sentence was cruel or unusual punishment. 

(Carmony, at pp. 1086–1089.) In so doing, the court noted it is 

the rare case that violates the prohibition against cruel or 

unusual punishment. (Id. at p. 1072.) Still, there is a “bottom to 

that well.” (Ibid.) A passive, nonviolent, regulatory offense that 

poses no direct or immediate danger to society is the bottom of 

that well. (Id. at p. 1078.)

In contrast, a 25-years-to-life sentence imposed on a 

recidivist whose current offenses were for heroin possession and 

receiving stolen property was not found by another court to be 

cruel or unusual. (People v. Mantanez, supra, 98 Cal.App.4th at 

pp. 356, 366–367.) The defendant in Mantanez, at page 366, had 

an extensive criminal history spanning 17 years and including 

10 felony convictions and four separate prison terms. His felonies 

included forcible entries into occupied homes, and he repeatedly 

violated parole and probation. (Ibid.) This “long criminal career” 

brought the defendant squarely within the Three Strikes law. 

(Ibid.; see, e.g., People v. Bernal (2019) 42 Cal.App.5th 1160, 

1172–1173 [defendant had 10 current offenses and lengthy 

criminal record]; People v. Haller (2009) 174 Cal.App.4th 1080, 

1088 [current offense involved threats of violence]; People v. 

Martinez (1999) 71 Cal.App.4th 1502, 1507–1508 [current offense

involved gun; priors included violent felonies and 50 

misdemeanors]; People v. Cline (1998) 60 Cal.App.4th 1327, 

1337–1338 [current offense for grand theft and priors included 12 

residential burglaries].)
23

If Avila’s current offenses are not at the bottom of the well 

like the one in People v. Carmony, supra, 127 Cal.App.4th 1066, 

they are certainly in that neighborhood. Neither do they place 

him alongside recidivists for whom a three strikes sentence is 

constitutional. Rather, given the relatively minor nature of 

Avila’s current conduct, his sentence rests on his prior offenses. 

There are, however, discernable gradations of culpability among 

prior offenses that must be accounted for when imposing 

sentence. (In re Grant (1976) 18 Cal.3d 1, 10, 13.) His criminal 

record is worthy of exploration. Avila’s prior strikes occurred 

almost 30 years before his current crimes. The only crimes he

committed involving actual violence were his first two, the second 

degree robbery and assault with a knife, which he committed on 

the same occasion in 1990 when he was 18 years old. He 

committed his third strike for second degree robbery in 1992, 

when he was 20 years old. His 1999 conviction of unlawful 

sexual intercourse with a minor involved a victim whom he 

married and with whom he had a child.14 And his last felony 

conviction in 2008 was for drug possession, which would now be a 

misdemeanor. 

Avila’s drug addiction provides a backdrop to this criminal 

history. His status as a drug addict cannot itself be punished. 

(See U.S. Const., 14th Amend.; Robinson v. California (1962) 370 

U.S. 660, 667; In re Foss, supra, 10 Cal.3d at p. 921.) Conduct 

that drug addiction causes (e.g., use, possession, or sale) can be 

punished. (Foss, at p. 921.) These two truisms often intersect 

when it comes to punishment. 

14 It is unclear whether they remain married.
24

The petitioner in In re Foss, supra, 10 Cal.3d at page 916, 

for example, was convicted of five counts of furnishing heroin in 

violation of the Health and Safety Code. He had a prior for 

possessing heroin that caused him to be sentenced to prison for 

10 years to life without the possibility of parole for a period of not 

less than 10 years. (Ibid.) In considering the constitutionality of 

that recidivist provision precluding parole consideration for a 

mandatory minimum term, the court found that drug addiction 

was a “compelling consideration” in determining whether the 

punishment was cruel or unusual. (Id. at p. 923.) “Measured 

from the evolving standards of decency that mark the progress of 

a maturing society,” the court found that the mandatory 

minimum term was “cruel in its failure to consider the extent to 

which the addict’s repetition of proscribed behavior is 

attributable to his addiction.” (Ibid.; see In re Rodriguez (1975) 

14 Cal.3d 639, 655 [limited intelligence and inability to cope with 

inadequacies partly explained criminal conduct].) Foss thus 

supports the simple proposition that drug addiction is a factor to 

consider in relation to the nature of the offender.15 

In sum, the first Lynch technique shows that Avila’s 

sentence lacks proportionality to his crimes. 

B. Comparing punishments intrastate and interstate

Lynch’s second and third techniques to determine 

disproportionality require comparing Avila’s punishment with 

those imposed for more serious offenses in California and in other 

jurisdictions. Avila thus argues that his third strike sentence 

15 To be clear, we do not cite Foss for the proposition that 

Avila cannot or should not be punished for his current crimes 

because he is a drug addict.
25

plus the determinate term is disproportionate to the sentence for 

attempted robbery, which carries a 16 months two- or three-year 

term (§ 213, subd. (b)). He also compares it to the nine-year 

maximum sentence for first degree robbery (§ 213, subd. (a)(1)(A)) 

and for carjacking (§ 215, subd. (b)). However, Avila was not 

sentenced just for his current offenses. He was sentenced as a 

habitual offender. As such, any comparison would be to

sentences given to other recidivists, a comparison Avila has not 

undertaken.16 As to national recidivist statutes, versions of 

California’s Three Strikes law are common, but California’s law 

has been among the “ ‘most extreme.’ ”17 (People v. Sullivan, 

supra, 151 Cal.App.4th at p. 572.) For this reason, Avila 

acknowledges the difficulty in comparing three strikes schemes 

among states.

It is unnecessary to establish disproportionality using all 

three Lynch techniques. (People v. Dillon, supra, 34 Cal.3d at 

p. 487, fn. 38.) Nonetheless, the evolving state of California’s 

criminal jurisprudence is relevant to an analysis of 

disproportionality and, hence, to what is cruel or unusual 

16 Some courts have found the second Lynch technique 

inapplicable to three strikes cases because the defendant is being 

punished for the current offense and his recidivism. (See, e.g., 

People v. Sullivan, supra, 151 Cal.App.4th at pp. 571–572; People 

v. Cline, supra, 60 Cal.App.4th at p. 1338.)

17 The People point out that California’s Three Strikes law

is not even the most extreme. Louisiana imposes life without the 

possibility of parole (LWOP) for a third felony when all three 

felonies are violent or a sex offense. (La. Rev. Stat. Ann. § 15–

529.1.) Mississippi imposes LWOP for a third felony if any of 

three felonies was violent. (Miss. Code Ann. § 99–19–83.)
26

punishment under our state constitution. Our Three Strikes law 

has undergone significant change. As originally enacted in 1994,

“the Three Strikes law required that a defendant who had two or 

more prior convictions of violent or serious felonies receive a third

strike sentence of a minimum of 25 years to life for any current 

felony conviction, even if the current offense was neither serious 

nor violent.” (People v. Johnson (2015) 61 Cal.4th 674, 680.) 

Then, voters recognized that the Three Strikes law had strayed 

from their intent in passing it. Voters therefore passed 

Proposition 36, the Three Strikes Reform Act of 2012 “to restore 

the original intent of California’s Three Strikes law—imposing 

life sentences for dangerous criminals like rapists, murderers, 

and child molesters.” (Voter Information Guide, Gen. Elec. (Nov. 

6, 2012) Prop. 36, § 1, p. 105.) To that end, a defendant now may 

be sentenced as a third striker only if the new felony is serious or 

violent. 

Additional changes to recidivist laws are afoot. Courts now 

have discretion to strike section 12022.5 and 12022.53 firearm 

enhancements (Sen. Bill No. 620 (2017–2018 Reg. Sess.) §§ 1, 2)

and five-year enhancements under 667, subdivision (a) (Sen. Bill 

No. 1393 (2017–2018 Reg. Sess.) §§ 1, 2). One-year prison priors 

under section 667.5 are now limited to sexually violent offenses 

(Sen. Bill No. 136 (2019–2020 Reg. Sess.) § 1). Health and Safety 

Code section 11370.2 enhancements are now limited to prior 

convictions for sales of narcotics involving a minor in violation of 

Health and Safety Code section 11380 (Sen. Bill No. 180 (2017–

2018 Reg. Sess.) § 1). 

Other changes implicate California’s cruel or unusual 

jurisprudence. We have already observed the law’s fairly recent 

evolution in how we treat juvenile offenders. Thus, the Eighth 
27

Amendment prohibits imposing the death penalty on juveniles 

(Roper v. Simmons (2005) 543 U.S. 551), LWOP on juveniles who 

commit nonhomicide offenses (Graham v. Florida (2010) 560 U.S. 

48), and mandatory LWOP for juveniles (Miller v. Alabama

(2012) 567 U.S. 460). Following that authority, our California 

Supreme Court has held that a de facto LWOP sentence for 

juvenile nonhomicide offenders violates the federal constitution 

(People v. Caballero (2012) 55 Cal.4th 262), as does a 50-years-tolife sentence for juvenile nonhomicide offenders (People v. 

Contreras (2018) 4 Cal.5th 349, 356). Youth-related mitigating 

factors must be considered before imposing LWOP on a juvenile 

homicide offender. (§ 190.5; see generally People v. Gutierrez 

(2014) 58 Cal.4th 1354.) In line with this evolution, our 

Legislature established a parole eligibility mechanism that 

provides a person serving a sentence for a crime committed as a 

youth a meaningful opportunity for release upon a showing of 

rehabilitation. (§ 3051.) 

Legislators are redefining culpability for various crimes. 

Senate Bill No. 1437 (Reg. Sess. 2017–2018) §§ 1–5) amended the 

mens rea requirement for murder, restricted the circumstances 

under which a person is liable for felony murder, and eliminated

the natural and probable consequences doctrine as it relates to 

murder. A person convicted of murder under a felony murder or 

natural and probable consequences theory may petition for 

vacation of the conviction and resentencing if certain conditions 

are met. (§ 1170.95.) Senate Bill No. 1437 is part of a broad 

penal reform effort to ensure our murder laws fairly address a

person’s individual culpability and to reduce prison overcrowding

that partially resulted from lengthy sentences incommensurate to 

the individual’s culpability. Senate Bill No. 1437 thus effects a 
28

sea change in sentences that have been and will be imposed on 

various offenders.

The sum of these changes show that legislators and courts 

are reconsidering the length of sentences in different contexts to 

decrease their severity. Insofar as these changes speak to the 

second and third Lynch techniques, the changes suggest 

disproportionality in Avila’s sentence, one that even as a 

recidivist exceeds the punishment in California for second degree 

murder, attempted premeditated murder, manslaughter, forcible 

rape, and child molestation. 

We are aware that lengthy sentences like the one imposed 

on Avila have been common, especially when the Three Strikes 

law was at play. However, common is not synonymous with 

constitutional. What has become routine should not blunt our 

constitutional senses to what shocks the conscience and offends

fundamental notions of human dignity. Crushing oranges, even 

for the purpose of trying to steal or to extort money, is not 

constitutionally worthy of the sentence imposed where, as here, 

the defendant’s criminal history on close examination cannot 

bear its share of such a sentence. 

Life in prison for destroying fruit, even when done by 

someone with a criminal record in the course of an attempted 

robbery, robs recidivist sentencing of its moral foundation and 

renders the solemn exercise of judicial authority devoid of 

meaning. There comes a time when the people who populate the 

justice system must take a fresh look at old habits and the 

profound consequences they have in undermining our 
29

institutional credibility and public confidence. In Avila’s case, 

the time is now.18 

DISPOSITION

The sentence is vacated, and the matter is remanded for 

resentencing with the direction to the trial court to strike two of 

Rene Avila’s prior strike convictions and to reconsider his 

sentence in light of the views expressed in this opinion. In all 

other respects, the judgment is affirmed.

CERTIFIED FOR PARTIAL PUBLICATION.

DHANIDINA, J.

We concur:

EDMON, P. J.

EGERTON, J.

18 Because we remand for resentencing, we need not 

address Avila’s contention that fines and assessments the trial 

court imposed must be stricken under People v. Dueñas (2019) 30

Cal.App.5th 1157. Further, on remand Avila may raise Senate 

Bill No. 1393, which allows a court to exercise its discretion to 

strike or to dismiss a serious felony prior for sentencing purposes. 

(Stats. 2018, ch. 1013, §§ 1, 2.)