Filed 12/23/22 P. v. Stanford CA2/1

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

JOHNNY STANFORD,

Defendant and Appellant.

 B318464

 (Los Angeles County

 Super. Ct. No. PA096338)

Appeal from a judgment of the Superior Court of Los 

Angeles County, Hayden A. Zacky, Judge. Affirmed in part and 

remanded in part with directions.

Debbie Yen, under appointment by the Court of Appeal, for 

Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Steven D. Matthews and Gary A. Lieberman, 

Deputy Attorneys General, for Plaintiff and Respondent.
2

Following a jury trial, defendant Johnny Stanford was 

convicted of inflicting corporal injury on a cohabitant (Pen. Code,

§ 273.5, subd. (a); count 1),

1 making criminal threats (§ 422, 

subd. (a); count 2), and false imprisonment by violence (§ 236; 

count 3). At his sentencing, defendant admitted to two prior 

serious felony convictions under the Three Strikes law (§§ 667, 

subds. (b)-(i), 1170.12). The trial court sentenced defendant to 

state prison for a term of 25 years to life on the criminal threats 

charge and lesser concurrent sentences on the remaining two 

counts.

On appeal, defendant contends we should reverse his 

corporal injury and criminal threats convictions for the trial 

court’s failure to sua sponte give a unanimity instruction. 

Defendant separately challenges his sentence by arguing the trial 

court erred in denying his Romero2 motion and by refusing to 

stay his concurrent sentences, and that his sentence amounts to 

cruel or unusual punishment. We find no merit in any of these 

contentions.

We do agree with defendant that the trial court erred by

adding multiple five-year enhancements to his sentences on the 

corporal injury and false imprisonment counts. Accordingly, we 

modify defendant’s sentence by striking those enhancements, and 

affirm the judgment in all other respects.

1 Unless otherwise stated, all statutory references are to 

the Penal Code.

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

(Romero).
3

FACTUAL BACKGROUND

On the morning of April 2, 2021, Angela S. ran into a 

recycling yard in Sun Valley, California.3 Angela was barefoot 

and appeared to have urinated on herself. The supervisor at the 

recycling yard observed bruises on Angela’s neck and face. 

Angela, crying hysterically, informed the supervisor that her 

boyfriend was trying to kill her and asked the supervisor to call 

the police. Both Angela and the supervisor spoke to the 911 

dispatcher. The supervisor reported that Angela stated her 

boyfriend was going to kill her, and described Angela as “bruised 

up.” When asked by the dispatcher whether Angela was awake, 

the supervisor responded that she was “really hysterical right 

now. She’s crying. She’s yelling. She’s very scared that her 

boyfriend’s gonna come over and see her and try to beat her up.” 

Angela also spoke to the dispatcher, reporting that she had been 

trying to escape the recreational vehicle (RV) where she lived 

with defendant, but could not. She stated that she had climbed 

out a window when her boyfriend was momentarily at the back of 

the RV. She stated that her boyfriend wanted to kill her and

asked for an ambulance. Security camera footage played at the 

trial showed Angela climbing out a window of the RV and 

running across the street toward the recycling yard.

Los Angeles Police Department Officers Zaman and Foster 

answered the 911 call and met Angela at the recycling yard. At 

that time, Angela repeated much of what she had told the 911 

dispatcher: that her boyfriend would not let her leave the RV, 

and that she “threw [her]self out of that window” in order to 

3 We use the victim’s first name to protect her privacy (see 

Cal. Rules of Court, rule 8.90(b)(4)), and not out of any disrespect.
4

escape. She added that her boyfriend had choked her the night

before, and that he had threatened to “grab [Angela] from behind 

and rip [her] face off.” She had been unable to call for help 

because he would not allow her to have a phone. Angela told the 

officers that her neck hurt where her boyfriend had choked her, 

and her ankles hurt from climbing out of the RV when she made 

her escape. While Officers Zaman and Foster interviewed 

Angela, other officers approached the RV and demanded that 

defendant come out of the vehicle. After repeated requests, 

defendant exited the RV and was arrested. Paramedics 

transported Angela to a hospital.

At the hospital, Angela was interviewed again by Officers 

Zaman and Foster. She reported that on April 1, she had bought 

a birthday card and cookies as a gift for defendant, although it 

was not his birthday. At first defendant thanked her for the card 

and cookies, but then he questioned why she had given him a 

birthday card when it was not his birthday. He accused Angela 

of lying and of infidelity. Defendant struck Angela, lifted her by 

the neck and threw her on the bed, where he jumped on her and 

choked her. He threatened Angela, telling her “I’m gonna fuckin’ 

kill you.” Angela begged defendant to stop; he did, and started 

crying. Eventually defendant “calmed . . . down” and apologized 

to Angela, and defendant and Angela left the RV to take a walk.

They returned to the RV between 4:00 and 5:00 p.m.

After Angela and defendant returned to the RV, defendant 

asked her for her phone. While examining the contacts stored on 

the phone, defendant asked Angela “This person’s new. Who is 

he?” Angela responded that it was her doctor. Late that night, 

after Angela had gone to sleep, defendant awakened her to 

question her about a letter he had found. Angela had written it 
5

to her daughter’s father. Defendant accused Angela of planning 

to leave him and return to her daughter’s father. He “socked” 

Angela in the jaw and choked her while telling her “Bitch, I’m 

gonna fuckin’ kill you now. You’re dead.” He continued to 

threaten Angela, saying for example “Bitch, just fuckin’ tell me 

the truth because no matter what you say, I’m dead, you’re dead.” 

Angela was unable to call the police that night because defendant 

had taken her phone. Not until the morning, when defendant 

was alone in the bedroom at the rear of the RV, was Angela able 

to open the kitchen window and climb out.

While at the hospital, Angela was interviewed by medical 

staff. Her medical records, introduced into evidence, stated as 

follows: “Patient was reportedly assaulted by her boyfriend who 

reported [sic] choked, kicked, punched and scratched her earlier 

today. Patient with complaint of neck pain, chest pain, 

abdominal pain. She has multiple scratches on her face, neck 

and a bite mark on her right chest.” Another entry in her 

medical records read, “Patient stated her boyfriend was ‘beating 

her up and she jumped out of the window to get away.’ Patient 

appears scared, crying, but glad she was able to ‘escape.’ ”

Angela was reluctant to testify. After defendant’s arrest, 

she had gone to Utah to stay with her mother, and she did not 

immediately respond when Salt Lake City and Los Angeles

district attorneys’ investigators tried to reach her about 

returning to Los Angeles to testify at defendant’s trial. On the 

stand, Angela recanted all of her previous statements. She 

testified that she and defendant were in a loving relationship,

and that defendant had never struck her, choked her or 

threatened her. She testified that defendant did not cause her

injuries, and they resulted from an unknown woman who was in 
6

the RV with defendant, and who Angela fought in a jealous rage. 

She explained that her previous statements were lies that she 

told in an attempt to hurt defendant after finding him in the 

company of this unknown woman. According to her trial 

testimony, Angela climbed out the RV window not to escape, but 

because she wanted to confront the woman again and did not 

want defendant to know. She also testified that she had used 

drugs on the day in question, and that her memories of the day 

were confused at best.

Defense counsel rested without calling any witnesses. 

Defense counsel’s closing argument focused on the two different 

versions of events provided by Angela, and contended Angela’s 

prior statements did not prove beyond a reasonable doubt that 

defendant committed any crime. After a short period of 

deliberation, the jury reached guilty verdicts on all three counts.

Outside the presence of the jury, defendant admitted to two

prior strikes, one for shooting into an occupied dwelling or vehicle 

and one for armed robbery. Defendant was sentenced on 

February 3, 2022, but the trial court recalled the sentence to 

correct an error and resentenced defendant on February 8, 2022 

as follows: 25 years to life on the criminal threats count; three 

years in state prison, doubled to six years pursuant to sections 

667 and 1170.12, plus two five-year enhancements for 

defendant’s prior strikes, for a total of 16 years on the corporal 

injury count; and two years in state prison, doubled to four years 

and with two five-year enhancements for the prior strikes, for a 

total of 14 years, on the false imprisonment count. The court 

ordered the sentences on the corporal injury and false 

imprisonment counts served concurrently with the sentence on 

the criminal threats count.
7

Defendant filed a timely notice of appeal.

DISCUSSION

A. The Trial Court’s Failure to Give a Unanimity 

Instruction Was Not Reversible Error

Defendant first contends the trial court erred by failing to 

give a unanimity instruction on the corporal injury and criminal 

threats counts. Defense counsel did not request such a jury

instruction, but that failure does not waive a claim of error. 

(People v. Riel (2000) 22 Cal.4th 1153, 1199.) That is because

“[e]ven absent a request, the court should give the instruction 

‘where the circumstances of the case so dictate.’ ” (Ibid., quoting 

People v. Carrera (1989) 49 Cal.3d 291, 311, fn. 8.) We review de 

novo a claim that the trial court failed to properly instruct the 

jury. (People v. Canizalez (2011) 197 Cal.App.4th 832, 850.)

1. A Unanimity Instruction Was Not Required on the 

Corporal Injury Count

Defendant asserts a unanimity instruction was required on 

the corporal injury count because the prosecution introduced 

evidence of two separate assaults on Angela—one in the morning, 

in connection with the birthday card, and the other in the 

evening, in connection with the letter Angela wrote to her 

daughter’s father. Defendant argues that in the absence of a

unanimity instruction, some jurors might have based their guilty 

verdict on the morning incident and others on the later one, or 

jurors may have based their verdict on different injuries suffered 

during these events, without all 12 jurors agreeing on what acts 

and injuries constituted the crime at issue.

“[O]ur Constitution requires that each individual juror be 

convinced, beyond a reasonable doubt, that the defendant 
8

committed the specific offense he is charged with.” (People v. 

Hernandez (2013) 217 Cal.App.4th 559, 569.) “A unanimity 

instruction is given to thwart the possibility that jurors convict a 

defendant based on different instances of conduct.” (Ibid.) Such 

an instruction “ ‘ “eliminate[s] the danger that the defendant will 

be convicted even though there is no single offense which all the 

jurors agree the defendant committed” ’ ” and “ ‘ “prevent[s] the 

jury from amalgamating evidence of multiple offenses, no one of 

which has been proved beyond a reasonable doubt, in order to 

conclude beyond a reasonable doubt that a defendant must have 

done something sufficient to convict on one count.” ’ ” (Ibid., fn. 

omitted.)

Courts have recognized, however, that a unanimity 

instruction “is not required if ‘the defendant offered the same 

defense to both acts constituting the charged crime, so no juror 

could have believed defendant committed one act but disbelieved 

that he committed the other.” (People v. Covarrubias (2016) 1 

Cal.5th 838, 879, quoting People v. Davis (2005) 36 Cal.4th 510, 

562.) Some courts have described this as an exception to any 

need for a unanimity instruction. (Covarrubias, supra, at p. 879; 

Davis, supra, at p. 562). Other courts have suggested a harmless 

error analysis—that any error in failing to give a unanimity 

instruction is harmless “[w]here the record provides no rational 

basis, by way of argument or evidence, for the jury to distinguish 

between the various acts, and the jury must have believed beyond 

a reasonable doubt that [the] defendant committed all acts if he 

committed any . . . .” (People v. Thompson (1995) 36 Cal.App.4th

843, 853; accord, People v. Diedrich (1982) 31 Cal.3d 263, 283;

People v. Hernandez, supra, 217 Cal.App.4th at p. 577.)
9

Here, there was no need for a unanimity instruction given 

that defendant offered the same defense to the alleged incidents

and any failure to give the instruction was harmless. In People v. 

Thompson (1984) 160 Cal.App.3d 220, for example, the defendant 

was convicted of corporal injury in violation of section 273.5 after 

the jury heard “evidence of numerous sexual and physical 

assaults” committed against his wife. (Thompson, supra, at 

p. 223.) On appeal, the defendant contended the trial court had 

erred by failing to give a unanimity instruction, because the 

jurors did not necessarily all convict him for the same assault. 

The Court of Appeal rejected this argument, citing the unitary 

defense exception. “[T]he defendant here offered only one 

defense: that he did not hit [his wife]. The essence of the jury’s 

task was to decide who was telling the truth, the [defendant] or 

his wife. There was no possibility of some jurors believing one 

defense, and some another.” (Id. at p. 226.)

The unitary defense exception applies here for the same 

reasons. While defendant asserts he offered multiple defenses at 

trial, our review of the closing argument shows no such thing. 

Defendant did not dispute the injuries Angela suffered, but

claimed he did not cause them. He offered the same defense in 

connection with the injuries related to the birthday card and the

injuries related to the letter Angela wrote to her daughter’s 

father. That defense was that Angela’s description of what 

occurred inside the RV shortly after the event to third parties 

was not credible in light of her contradictory testimony under 

oath at the trial. Defense counsel argued that Angela was the 

only witness who knew what happened inside the RV, that 

Angela told two different versions of what had happened, and the 
10

version to which Angela testified at trial “is what happened that 

day. And as a result, you should return a verdict of not guilty.”

We see no possibility that any juror, given this defense and 

the jury’s binary choice between Angela’s two versions of what 

occurred, could conclude that defendant had (or had not) struck 

and choked Angela on the morning of April 1, 2021, while 

reaching the opposite conclusion as to the assault occurring later 

that night. We accordingly find the trial court did not err in

failing sua sponte to give a unanimity instruction. (See, e.g., 

People v. Covarrubias, supra, 1 Cal.5th at p. 880 [unanimity 

instruction was not required when defense’s main argument was 

that key witness had been untruthful about alleged crimes, and 

verdict implied jury did not believe that defense]; People v. 

Thompson, supra, 160 Cal.App.3d at p. 226 [any error in failing 

to give a unanimity instruction was harmless because juror had 

to decide between two competing factual recitations, so “[t]here 

was no possibility of some jurors believing one defense, and some 

another”].)4

4 A further exception provides that “no unanimity 

instruction is required if the case falls within the continuouscourse-of-conduct exception, which arises ‘when the acts are so 

closely connected in time as to form part of one transaction’

[citation], or ‘when . . . the statute contemplates a continuous 

course of conduct of a series of acts over a period of time’

[citation].” (People v. Jennings (2010) 50 Cal.4th 616, 679.) 

Because the unitary defense exception applies here, we do not 

address the parties’ arguments concerning whether the 

continuous-course-of-conduct exception is also applicable.
11

2. A Unanimity Instruction Was Not Required on the 

Criminal Threats Count

Defendant’s argument that a unanimity instruction was 

required on the criminal threats count is similarly unpersuasive. 

Defendant asserts the instruction was required because the 

prosecution presented two discrete instances of defendant 

threatening Angela—once in the morning when he threatened to 

kill her for lying about her reasons for giving him a birthday 

card, and an incident at night when he threatened to kill her over 

his belief that Angela was planning to leave defendant and move 

to Utah. But a unanimity instruction was not required (and 

alternatively, any failure to give it harmless) because defendant 

offered the same defense to both events—that Angela’s trial 

testimony showed there was no proof beyond a reasonable doubt 

he threatened her, and her statements to the contrary on April 2, 

2021, were not credible. As is the case with the corporal injury 

count, given this defense no juror could believe that defendant 

threatened (or did not threaten) Angela in the morning of April 1, 

while reaching a different conclusion as to whether he did so later 

that night. (See, e.g., People v. Covarrubias, supra, 1 Cal.5th at 

p. 880; People v. Thompson, supra, 160 Cal.App.3d 220 at p. 226.)

B. The Trial Court Did Not Impose Multiple Sentences 

for the Same Conduct in Violation of Section 654

Defendant argues the trial court improperly sentenced him 

to concurrent terms on the corporal injury and false 

imprisonment counts because those convictions resulted from a

single indivisible course of conduct. Section 654 provides that 

“[a]n act or omission that is punishable in different ways by 

different provisions of law may be punished under either of such 

provisions, but in no case shall the act or omission be punished 
12

under more than one provision. . . .” (Id., subd. (a).) Section 654 

therefore “precludes multiple punishments for a single act or 

indivisible course of conduct.” (People v. Hester (2000) 22 Cal.4th 

290, 294.)

“ ‘ “ ‘Whether a course of criminal conduct is divisible and 

therefore gives rise to more than one act within the meaning of 

section 654 depends on the intent and objective of the actor.’ ” ’ ” 

(People v. Jackson (2016) 1 Cal.5th 269, 354.) “If [the] defendant 

harbored ‘multiple criminal objectives,’ which were independent 

of and not merely incidental to each other, he may be punished 

for each statutory violation committed in pursuit of each 

objective, ‘even though the violations shared common acts or were 

parts of an otherwise indivisible course of conduct.’ [Citation.]” 

(People v. Harrison (1989) 48 Cal.3d 321, 335.)

Whether a defendant harbored multiple objectives is a 

question of fact for the trial court. (People v. Coleman (1989) 48 

Cal.3d 112, 162; see also People v. Hutchins (2001) 90

Cal.App.4th 1308, 1312 [“the law gives the trial court broad 

latitude” in determining “whether section 654 is factually 

applicable to a given series of offenses”].) “When a trial court 

sentences a defendant to separate terms without making an 

express finding the defendant entertained separate objectives, 

the trial court is deemed to have made an implied finding each 

offense had a separate objective.” (People v. Islas (2012) 210

Cal.App.4th 116, 129.) We review that implied finding for 

substantial evidence. (People v. Brents (2012) 53 Cal.4th 599, 

618.) “We review the trial court’s determination in the light most 

favorable to the respondent and presume the existence of every 

fact the trial court could reasonably deduce from the evidence.” 

(People v. Jones (2002) 103 Cal.App.4th 1139, 1143.)
13

We assume for purposes of argument that defendant’s 

violations shared common acts or were parts of an otherwise 

indivisible course of conduct. The question then is whether 

defendant harbored multiple criminal objectives. Defendant 

argues all of the charged crimes had a single objective, but fails 

to identify specifically what it was. He instead offers two

possibilities—that the objective was either to force Angela to tell 

the truth about the birthday card or to force her to tell him she 

was going to leave him. Reviewing the trial court’s determination 

in the light most favorable to respondent and presuming the 

existence of every fact the trial court could reasonably deduce 

from the evidence, we disagree there was a single objective. 

Substantial evidence supports a finding of multiple objectives, 

namely to injure Angela through a physical assault (corporal 

injury, count 1), to frighten her for alleged past infidelity as well 

as to keep her under his coercive control by threatening harm

(criminal threats, count 2), and to prevent Angela from leaving 

him by keeping her in the RV and taking her phone away so she 

could not call for help (false imprisonment, count 3). Accordingly, 

we find no error in the trial court’s decision to impose concurrent 

terms of imprisonment in this matter.

C. The Trial Court Did Not Abuse its Discretion by 

Denying Defendant’s Romero Motion

Defendant next contends the trial court abused its 

discretion when it refused to dismiss prior strikes based on his

1994 conviction for shooting at an occupied dwelling or vehicle 

and his 2006 conviction for armed robbery. The trial court has 

discretion to dismiss strikes based on prior offenses. (Romero, 

supra, 13 Cal.4th at pp. 529-530.) In ruling on a Romero motion, 

the sentencing court “must consider whether, in light of the 
14

nature and circumstances of his present felonies and prior 

serious and/or violent felony convictions, and the particulars of 

his 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 he had not previously been convicted 

of one or more serious and/or violent felonies.” (People v. 

Williams (1998) 17 Cal.4th 148, 161.) The defendant bears the 

burden to show that the decision not to strike was irrational or 

arbitrary. (People v. Superior Court (Du) (1992) 5 Cal.App.4th

822, 831.) As our Supreme Court observed in People v. Carmony

(2004) 33 Cal.4th 367, “a trial court does not abuse its discretion 

unless its decision is so irrational or arbitrary that no reasonable 

person could agree with it.” (Id. at p. 377.) “ ‘[I]t is not enough to 

show that reasonable people might disagree about whether to 

strike one or more’ prior conviction allegations.” (Id. at p. 378.)

In ruling on the Romero motion, the trial court 

acknowledged the factors it needed to consider under People v. 

Williams, supra, 17 Cal.4th at p. 161. The court summarized

defendant’s criminal history, which included the following

convictions prior to the second strike 2006 robbery conviction: a

1989 conviction for transportation or sale of a controlled 

substance, for which defendant received probation and 240 days 

in jail; a 1991 arrest for participation in a criminal street gang

that led to defendant’s probation being revoked and a sentence of 

three years in state prison; a 1991 conviction for felony evading of 

a peace officer, for which defendant was sentenced to two years in 

state prison; the 1994 first strike conviction for shooting at an 

inhabited dwelling or vehicle, for which defendant was sentenced 

to three year years in state prison; and a 1996 federal conviction 

for armed bank robbery for which he was sentenced to 115 
15

months in prison (and for which he later served an additional 

nine months when his federal supervised release was revoked). 

Defendant was on parole at the time he assaulted Angela.

Given these facts, the court found it could not “say that 

[defendant] is outside the spirit of the [T]hree [S]trikes law. He 

is a recidivist who kept repeating his criminal conduct. As I said 

before, even after serving lengthy prison sentences, he did reoffend. I think that if I were to strike a strike in this case, that 

would be an abuse of my discretion based on the state of the law. 

So I’m going to deny the Romero motion.”

A trial court abuses its discretion in refusing to dismiss a 

prior strike when it was not aware of its discretion to dismiss, 

where it considered impermissible factors in refusing to dismiss, 

or where the resulting sentence leads to an arbitrary, capricious 

or patently absurd result. (People v. Carmony, supra, 33 Cal.4th

at p. 375.) None of that occurred here, and we find no reversible 

error in the trial court’s ruling. The court was aware that it had 

the power to dismiss a strike, and considered only permissible 

factors when exercising its discretion. The factor that the court 

did emphasize—defendant’s lengthy criminal history—was 

entirely proper. (See, e.g., People v. Brugman (2021) 62 

Cal.App.5th 608, 640 [no abuse of discretion, citing the 

defendant’s “continuous history of criminal conduct”]; People v. 

Humphrey (1997) 58 Cal.App.4th 809, 813 [reversing dismissal of 

prior strike where the defendant “led a continuous life of crime 

after the prior”].) Nor is the sentence here an arbitrary or 

patently absurd result.

Defendant’s suggestion that his prior strikes were remote 

in time ignores the periods defendant was incarcerated for those 

offenses. The 1994 conviction resulted in a three-year prison 
16

sentence, and by 1996 defendant was serving approximately nine

years in federal prison for armed bank robbery. In 2006, soon 

after his release from federal prison, defendant reoffended, was 

convicted of armed robbery and was sentenced to 15 years in 

state prison. He was released in 2019, and shortly thereafter was 

returned to federal prison for nine months for violating his 

supervised release from his bank robbery conviction. After 

release from federal custody, he then committed his offenses 

against Angela in early 2021. Defendant’s record shows a 

recurrent pattern of serious and often violent crime, followed by a 

prison sentence, followed by a new offense soon after release. Nor 

do we agree with defendant that the trial court abused its 

discretion because this was defendant’s first domestic violence 

offense. A trial court does not abuse its discretion in denying a 

request to dismiss a prior strike because that strike was for a 

different violent crime than the one for which the defendant is 

now being sentenced.

Defendant finally claims the court abused its discretion by

failing to accord proper weight to his age and his history of drug 

use. A defendant’s age is not one of the mitigating factors listed 

in rule 4.423(b) of the California Rules of Court, and in any event 

“middle age, considered alone, cannot take a defendant outside 

the spirit of the [Three Strikes] law.” (People v. Strong (2001) 87 

Cal.App.4th 328, 332.) The court did consider that defendant was 

under the influence of drugs at the time he assaulted Angela, but 

did not identify that as a mitigating or aggravating factor in its 

decision. Particularly given defendant’s prior narcotics related 

convictions, as well as the other information before the court, it 

was within the court’s discretion to find the Romero motion was 

not justified by defendant’s drug use.
17

D. Defendant’s Sentence is Not Cruel or Unusual 

Punishment

Defendant contends that his 25 years to life sentence “is so 

grossly disproportionate to his offense that it violates the Eighth 

and Fourteenth Amendments of the United States Constitution 

as well as the California Constitution.” The People contend

defendant waived this argument by failing to raise it at the 

sentencing hearing. While a constitutional challenge to the 

length of sentence may be waived if not made at sentencing, we 

believe it prudent to address this claim given defendant’s related 

claim of ineffective assistance of counsel.

5 (See, e.g., People v. 

Martin (1995) 32 Cal.App.4th 656, 661, disapproved on another 

ground in People v. Deloza (1998) 18 Cal.4th 585, 600, fn. 10.)

“ ‘Whether a punishment is cruel and/or unusual is a 

question of law subject to our independent review . . . .’ ” (People 

v. Wilson (2020) 56 Cal.App.5th 128, 166-167.) We must give

appropriate deference to the Legislature’s power to determine 

what punishment is appropriate for crimes. (Solem v. Helm

(1983) 463 U.S. 277, 290 [100 S.Ct. 3001, 77 L.Ed.2d 637]

[“Reviewing courts . . . should grant substantial deference to the 

broad authority that legislatures necessarily possess in 

determining the types and limits of punishments for crimes, as 

5 Defendant asserts that should we find he waived his 

constitutional challenge to his sentence, the failure to make that 

argument means he received ineffective assistance of counsel. 

Our election to address defendant’s constitutional claim on the 

merits, and our conclusion that the claim is without merit, 

renders moot defendant’s ineffective assistance claim. (See 

People v. Bradley (2012) 208 Cal.App.4th 64, 90 [“Failure to raise 

a meritless objection is not ineffective assistance of counsel”].)
18

well as to the discretion that trial courts possess in sentencing 

convicted criminals”].) As our Supreme Court has observed, “the 

three strikes law not only establishes a sentencing norm, it 

carefully circumscribes the trial court’s power to depart from this 

norm . . . . In doing so, the law creates a strong presumption that 

any sentence that confirms to these sentencing norms is both 

rational and proper.” (People v. Carmony, supra, 33 Cal.4th at 

p. 378.) Thus, reducing a sentence “is a solemn power to be 

exercised sparingly only when, as a matter of law, the 

Constitution forbids what the sentencing law compels.” (People v. 

Mora (1995) 39 Cal.App.4th 607, 616.)

In deciding whether a sentence is cruel or unusual, we 

must determine whether the 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, fn. omitted.) Lynch established a threeprong test to determine constitutionality, but defendant expressly 

limits his challenge to the first of the three prongs: the nature of 

the offense and/or the offender with particular regard to the 

degree of danger both present to society.

Defendant argues that “[a] 25 [years] to life sentence is 

disproportionate when this was [his] first domestic violence 

offense. At trial, there [was] no evidence of any other domestic 

violence incidents against other victims. It is undisputed that 

drugs likely fueled the toxic events of that day. . . . All of these 

factors constitute the ‘totality of the circumstances’ that is 

relevant to a disproportionality analysis.”

The sentence here is undoubtedly severe, but it is 

authorized by California law and not unconstitutionally cruel or 

unusual. Our Legislature has classified “criminal threats, in 
19

violation of [s]ection 422” as a “ ‘serious felony’ ” (§ 1192.7, subd. 

(c)(38)). The seriousness of that felony is demonstrated by 

defendant’s protracted physical assault and terrorizing of Angela 

that resulted in multiple injuries and filled her with such fear 

that she urinated on herself before fleeing for her life. Defendant 

is a habitual offender with a lengthy criminal career involving 

repeated crimes of violence. While this may be his first 

conviction for domestic violence, his prior crimes include bank 

robbery and armed robbery, both of which are “serious felonies” 

under section 1192.7, subdivision (d), as well as “violent felonies” 

under section 667.5, subdivision (c)(9). As the trial court 

observed, prior to his offenses in this case, “since 1988, 

[defendant] has been sentenced to a total of 36 years in state [and 

federal] prison. . . . He is a recidivist who kept repeating his 

criminal conduct. As I said before, even after serving lengthy 

prison sentences, he did re-offend.”

Under the Three Strikes law, defendant’s sentence is based 

not only on his current offense but also his prior offenses. Given 

the totality of defendant’s criminal history up to and including 

the current offenses as recited earlier in this opinion, we see no 

merit to his claim that his sentence was so disproportionate to his 

crimes as to be unconstitutional. (Compare People v. Avila (2020) 

57 Cal.App.5th 1134 [life sentence unconstitutional where the

defendant was convicted of attempting to collect “rent” from 

roadside fruit vendors, did not commit violence or threatened it, 

the crime caused $20 worth of damage, and prior convictions 

remote in time].)
20

E. The Serious Felony Enhancements Were Incorrect 

and Should be Stricken

The trial court sentenced defendant to 16 years on the 

corporal injury charge (count 1) and 14 years on the false 

imprisonment charge (count 3), with both terms to be served 

concurrently to his sentence on the criminal threats charge 

(count 2). Both the sentences on counts 1 and 3 included two 

five-year serious felony enhancements imposed pursuant to 

section 667, subdivision (a). That statute provides that the 

enhancements are to be imposed on “[a] person convicted of a 

serious felony who previously has been convicted of a serious 

felony.” (Ibid.) Defendant argues, the People agree, and we 

concur that neither count 1 nor count 3 involved a “serious 

felony,” as defined in section 1192.7, subdivision (c). Accordingly, 

we direct the trial court to modify defendant’s sentence by 

striking the two five-year enhancements added to his sentences 

on both counts 1 and 3, which will reduce the sentences on those 

counts to six years and four years, respectively.
21

DISPOSITION

The matter is remanded with directions to strike the two 

enhancements imposed under section 667, subdivision (a) on 

count 1, as well as the two similar enhancements imposed on 

count 3. In all other respects, the judgment is affirmed. The trial 

court is directed to prepare an amended abstract of judgment 

reflecting the stricken enhancements and to forward a certified 

copy to the Department of Corrections and Rehabilitation.

NOT TO BE PUBLISHED

WEINGART, J.

We concur:

ROTHSCHILD, P. J.

BENDIX, J.