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

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

JO HNNY 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. Matt hews and Gary A. Lieberman, Deputy Attorney s 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;

c ount 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 cour t 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

c ounts. On appeal, defendant contends we should reverse his corporal injury and criminal threats convic tions 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 Romero 2 motion and by refusing to stay his concurrent sentences, and that his sen tence amounts to cruel or unusual punishment. We find no merit in any of these
contentions. We do agree with de fendant that the trial court erred by
add ing multiple five

- year enhancements to his sentences on the corporal injury and false imprisonment counts. A ccordingly, we modify defendant’s sentence by striking th ose 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 FACT UAL 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 a nd 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 wh ether 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, re porting 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 w anted 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

answe red 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

, r ule 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 t he 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 birth day 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 n o t 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

cry ing. 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 ph one. 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 lette r he had found. Angela had written it5

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. ’ ”
An gela was reluctant to testify. After defendant’s arrest,

s he had gone to Utah to stay with her mother, and she did not immediately respond when Salt L ake City and Los Angeles district attorneys’ investigators tried to reach her about returning to Los Ange les 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 t hat defendant did not cause her injuries, and they resulted from a n unknown woman who was in6

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

. Defen se 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 crim e

. After a short period of deliberation, the jury re ach ed 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 f or 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

. T he court
ordered t he sentences on the corporal injury and false imprisonment counts served concurrently with the sent ence 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

. Defen se counsel did not request such a jury
instruction , bu t that failure does not waive a claim of error

. ( People v. Riel (2000) 22 Cal.4th 1153, 119 9 .) That is because “[e]ven absent a request, the court should give the instruction ‘where the circumstances of the case so dictate.’ ” ( I bi d

., 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 W as N ot Required on the Corporal I

njury Count

D efendant 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

ev ening , in connection with the letter Angela wrote to her daughter’s father. Defendant argues that i n 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 m ay have based their verdict on different injuries suffered during these events, without all 12 jurors agreeing on what acts and injuries constituted the crim e at issue

. “[O]ur Constitution requires that each individual juror be convinced, beyond a reasonable doubt, that the defendant8

committed the specific offense he is charged with.” ( People v.
Hernandez (2013) 217 Cal.App.4th 559, 569 .) “ A unanimity instruction is giv en to thwart the possibility that jurors convict a
defendant based on different instances of conduct. ” ( I bi d .) Such an instruction “ ‘ “ eliminate [s] the danger that the defendant will be convicted even though there is no single offense which all the juro rs 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 so mething sufficient to convict on one count. ” ’ ” ( I bi d

., 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 c ourts 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 ration al 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 ( 19 95 ) 36 Ca l.App. 4th
843
, 853 ; accord

, People v. Diedrich (19 82) 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

wa s convicted of corporal injury in violati o n of section 273.5 after the jury heard “evidence of numerous sexual and physical
assaults” committed against hi s wife. ( Thompson

, supra , at

p. 223.) On appeal, the defendant contended the trial court had
erred b y failing to give a unanimity instruction, because the jurors did not necessarily all convict him for the same assault.
The C ourt of A ppeal 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.
D e fendant did not dispute the injuries A ngela 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 injur ies 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 the10

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 whe n 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 jur or had
to decide between two competing factual recitation s , 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 continuous

course

- of

- conduct exception, which arises ‘when the acts are so closely connected in time as to form part of one transactio n’ [citation] , or ‘when

. . . the statute contemplates a continuous course of conduct o f 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

a ddress 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

D efendant’s argument that a unanimity instruction was required on the criminal threats count is similarly unpersuasive.
Defendant assert s the instruction was required because the prosecution prese nted 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 w as 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 c ould 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 D id N ot 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 convictio ns 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 o mission be punished12

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.5 th 26 9 , 354.) “If [the] defendant
harbored ‘ multipl e 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 Peo ple v. Hutchins (200 1 ) 90 Cal.App.4th 1 308, 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 with out 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) 21 0 Cal.App.4th 116, 129.) We review that implied findi ng for
substantial evidence

. ( People v. Brents (2012) 53 Cal.4 th 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 a ssum e 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 ei ther 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 r espondent and presum ing the existence of every fact the trial court could reasonably deduce
from the evidence , we disagree there was a single objective

. S ubstantial evidence supports a finding of multiple objectives, namely to injure Angela through a physical assault ( corporal injury , count 1 ), to frighten her for a lleged 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 D id N ot Abuse its Discretion by Denying Defendant’s Romero Motion
Defendant next conten ds the trial court abused its
discretion when it refused to dismiss prior strike s 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.4 th at pp. 529

- 530.) In ruling on a Romero motion,
the sentencing court “ must consider whether, in light of the14

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 an d/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.4 th 822, 831.) As our Supreme Court observed in People v. Carmony (2004) 33 Cal.4 th 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 enoug h 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 , t he 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 con viction : 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

t hree 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 ; a nd a 1996 federal conviction for armed bank robbery for which he was sentenced to 11515

months in pri son ( 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, t h e 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 re

offend. I think that if I were to strike a strike in this case, that would be an abuse of my discretion base d 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 i t s discretion to dismiss, where it considered impermissible factors in refusing to dism iss, or where the resulting sentence leads to an arbitrary, capricious or patently absurd result. ( People v. Carmony, supra , 33 Cal.4 th at p. 375. ) None of that occurred here , and we find no reversible error in the trial court’s ruling . The court was aw are 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 (20 21 ) 62 Cal.App.5 th 608, 640 [ no abuse of discretion, citing the defendant’s “continuous history of criminal conduct” ] ; People v. Humphrey (1997) 58 Cal.App.4 th 809, 813 [ reversing dismissal of prior strike where the defendant “led a continuous life of crime
af ter the prior” ] .) Nor is the sentence h ere 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 199 4 conviction resulted in a three

- year prison16

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 off enses 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 i ts 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 defenda nt is now being sentenced.
Defendant finally claims the court abused its discretion by
fail in g 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 r ule 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.4 th 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 g iven 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 N ot Cruel or Unusual
Punishment
Defendant contends that his 25 years to life sentence “is so grossly disproportionate to h is offense that it violates the Eighth
and Fourteenth Amendments of the United States Constitution
as well as the California Constitution.” T he People conten d
defendant waived this argument by failing to raise it at the sentencing hearing. While a consti tutional challenge to the length of sentence may be waived if not made at sentenc ing , 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.4 th 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 (20 20) 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

. . . shou ld grant substantial deference to the broad authority that legislatures necessarily possess in determining the types and limits of punishments for crimes, as

5 D efendant asserts that should we find he waived his constitutional challenge to his sentence, th e 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 cla im is without merit, renders moot defendant’s ineffective assistance claim. (See People v. Bradley (2012) 208 Cal.App.4 th 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 spari ngly 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 disproporti onate 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 three

prong test to determine constitutionality, but de fendant 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 disprop ortionate 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
f actors 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

. O ur L egislature has classified “criminal threats, in19

violation of [ s ] ection 422” as a “ ‘ serious felony ’ ” ( § 1192.7, subd. (c)( 38 )). Th e seriousness of that felony is demonstrated by
defendant’s protracted physical assault and terrorizing of Angela
that resul ted in multiple injuries and filled her with such fear that she urinated on herself before fleeing for her life. D efendant
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, subd ivision ( d ), as well as “violent felonies” under section 667.5, subd ivision (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
federa l ] 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. ”
U nder 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 rec ited 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 convi cted of attempting to collect “rent” from
roadside fruit vendors , did not commit violence or threatened it,
the crime cause d $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

s ection 667, subd ivision (a). That statute provide s 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, subd ivision (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 thos e
counts to six years and four years, respectively.21 DISPOSITIO N

The matter is remanded with directions to strik e the two enhancements imposed under section 667, subd ivision (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 Departme nt of Corrections and Rehabilitation

. NOT TO BE PUBLISHED

WEINGART, J.

We concur:

ROTHSCHILD, P. J.

BENDIX , J.