Filed 4/14/15 P. v. Regalado CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

THE PEOPLE,
Plaintiff and Respondent,

v.
DENNIS BALISCAN REGALADO,
Defendant and Appellant. B255074
(Los Angeles County Super. Ct. No. MA058648)

APPEAL from a judgment of the Su perior Court of Los Angeles County. Kathleen Blanchard, Judge. Reversed and remanded for resentencing.

William Hassler, under appointment by th e Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Ge rald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Blythe J. Leszkay and Ryan M. Smith, Deputy A ttorneys General, for Plaintiff and Respondent.

_____________ __________2 Following his conviction of various ch arges arising out of assault and making criminal threats, defendant and appellant De nnis Baliscan Regalado was sentenced to a prison term of 113 years to life. He challenges that senten ce on appeal, and we agree. Considering appellant’s crim inal history and by examin ing other cases in which
defendants have been sentenced for similar crimes, we conclude that appellant’s sentence violates California’s prohibition against cruel or unusual punishment. (Cal. Const., art. I, § 17.) Accordingly, we reverse the matt er and remand it to the trial court for resentencing.
PROCEDURAL BACKGROUND In an information filed by the Los Angeles District Attorney, appellant was charged with two counts of assault with a fi rearm (Pen. Code, § 187, subd. (a), counts 1 & 3), 1 two counts of criminal threats (§ 42 2, subd. (a), counts 2 & 4), dissuading a witness from reporting a crime (§ 136.1, subd. (b)(1), count 5), two counts of possession of a firearm by a felon with two priors (§ 29800, subd. (a)(1), counts 6 & 7), possession of ammunition (§ 30305, subd . (a)(1), count 8), and dissuading a witness from testifying (§ 136.1, subd. (a)(1), count 9). As to all c ounts, two prior serious a nd/or violent felonies (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) were also alleged. In addition, as to counts 1 through 4, it was alleged that a ppellant personally used a firearm in the commission of the offenses (§ 12022, subd. (a )). Finally, as to counts one through three, two prior serious felonies (§ 6 67, subd. (a)(1)) were alleged. Appellant pleaded not guilty and denied the allegations. Trial was by jury. The jury found appellant guilty on counts 2 throug h 9, and found true the special allegation that appellant personally used a firearm with respect to counts 2, 3, and 4. Appellant was acquitted on count 1. In a bifurcated procee ding, appellant admitted having suffered two prior convictions under the Three Strikes law. Appellant’s motion pursuant to People v. Superior Court ( Romero ) (1996) 13 Cal.4th 497 ( Romero ) was heard and denied.

1 All further statutory references are to the Penal Code unless otherwise indicated.3 Appellant was sentenced to a term of 113 ye ars to life in state prison, computed as follows: 25 years to life, plus two consecutiv e five-year terms (§ 667, subd. (a)(1)), plus the mid-term of two years, doubled to four ye ars for a total of 39 years on counts 2 and 3, to run consecutively; plus 25 years to life, pl us two consecutive five-year terms (§ 667, subd. (a)(1)), for a total of 35 years on count 9. 2 He was awarde d 1,481 days of presentence custody credits. Various fines a nd fees were imposed and one was stayed. Appellant timely filed a notice of appeal.
FACTUAL BACKGROUND
I. Prosecution Evidence
A. Facts in this Case On May 29, 2012, Elsie Regalado (Elsie ) was at her home with her husband, appellant, in Lancaster. Sometime before 9:00 a.m., appellant began arguing with Elsie. Elsie was upset with appellant because of his drinking. He got violent when he drank. During the argument, Elsie told him to stop drinking and to go to work. Appellant threatened to kill Elsie. Appellant went to the bedroom a nd grabbed a shotgun out of the
closet. When appellant returned, he loaded two bullets into th e shotgun. Appellant, who was standing within reaching distance of El sie, pointed the shotgun at her head. She pushed the gun away. He threatened to bury her alive. He grabbed her by the throat and instructed her to open her mout h. Elsie was scared that a ppellant was going to kill her. She ran to the garage, but appellant followed he r. Elsie got into her car and drove to the police station. After filing a police report, Elsie went to a friend’s house because she feared that appellant might hurt her. Appellant contacte d Elsie, apologized, and said that it would never happen again. The next day, Elsi e returned to her hom e with appellant. On June 10, 2012, at approximately 6:30 p.m., Elsie was home with appellant. The couple began to argue. Appellant had be en drinking and wanted to have sex with

2 He was sentenced on counts 4, 5, 6, 7, and 8, but those sentences were stayed.4 Elsie. When she told him “no,” he became a ngry. He followed her around the house and yelled at her. He grabbed his shotgun. He stood behind Elis e and pointed the shotgun at her back. Appellant thr eatened to kill her.
Elsie was scared and went into another room. Appellant followed her, while still pointing the shotgun at her. Elsie then went into the kitchen and pi cked up the telephone to try to call the police. Elsie dialed 911 an d told the operator that appellant was trying to kill her. However, she was unable to finish the call; appellant grabbed the telephone from her and pulled the cord fro m the wall, “[s]o [the police could not] call back.” Appellant hid his shotgun in a storage room in the backyard. He told Elsie that he did not want to go to jail. Elsie he ard the police coming, so she we nt to the garage. Appellant followed her to the garage. Despite this troubled history, Elsie and appellant remained in frequent contact while he was in the county jail from the date of his arrest on June 10, 2012, through trial. During that time, she accepted 159 collect calls from appellant, visited him three times, and sent him money on 10 to 15 occasions. She also sent the district attorney a notarized letter in September 2012, asking the prosecuto r to drop the charge s against appellant because she had “‘overreacted and got back at [appellant] out of anger.’” Ruth Silverio, a native Tagalog speaker, listened to 30 hours of phone calls between Elsie and appellant. The prosecutor instructed Ms. Silv erio to summarize any portions of the calls that were “about the cas e [or] about guns, or [] where [appellant] would ask [Elsie] to lie.” Ms. Silverio testifie d that in several of the calls, appellant told
Elsie that she should lie if necessary, not talk to anyone about the case except him, and not show up in court, because “then there [would be] no case.” B. Facts Relating to Appellant’s Two Prior Convictions Appellant’s two prior felony convictions also arose out of incidents in which appellant threatened to shoot someone. In 2006, appellant argued with a neighbor, retrieved a gun, and fired a shot in the air; in 2010, he again argued with neighbors and
threatened to shoot them while ma king a gesture like firing a gun.5 II. Defense Evidence Appellant did not offer any evidence.
DISCUSSION
I. Forfeiture As anticipated in appellant’s opening brief, the People argue appellant has forfeited his challenge to his sentence on a ppeal by failing to raise the argument below. Defense counsel did not specifically objec t that appellant’s sentence was cruel and/or unusual, and generally speaking, the fa ilure to object would amount to a forfeiture of the claim on appeal. ( People v. Kelley (1997) 52 Cal.App.4th 5 68, 583.) But, “[n]ot all claims of error are prohibite d in the absence of a timely objection in the trial court. A defendant is not precluded from raising for th e first time on appeal a claim asserting the deprivation of certain fundamen tal, constitutional rights.” ( People v. Vera (1997) 15 Cal.4th 269, 276.) Moreover, in an effort to “‘forestall a subsequent claim of ineffectiveness of counsel’ [citation] , we will consider the issue.” ( People v. DeJesus (1995) 38 Cal.App.4th 1, 27.)
II. Appellant’s sentence amounts to cruel or unusual punishment A. Legal Principles
A sentence is cruel or unusua l under California law if “‘it is so disproportionate to
the crime for which it is inflicted that it s hocks the conscience a nd offends fundamental notions of human dignity.’ [Citation.]” ( People v. Norman (2003) 109 Ca l.App.4th 221, 230.) In making that determination, cour ts consider the nature of the offense and offender, and compare the sent ence with sentences imposed fo r more serious crimes in California and for the same crime in other jurisdictions. 3 ( Ibid .; see In re Lynch (1972) 8 Cal.3d 410, 424–427.)

3 Since we are deciding this matter unde r the California Constitu tion, we need not discuss the United States Constitution. We no te, however, that a sentence is cruel and unusual under the Eighth Amen dment to the United States Constitution if it is “grossly disproportionate to the se verity of the crime.” ( Rummel v. Estelle (1980) 445 U.S. 263, 271; Ewing v. California (2003) 538 U.S. 11, 21.)6 B. Appellant’s Sentence is Unconstitutional Applying these factors, we conclude that appellant’s sentence is unconstitutional.
We first consider the nature of the offe nse and the offender, including his criminal history. ( People v. Dillon (1983) 34 Cal.3d 441, 479, ab rogated on other grounds as
stated in People v. Chun (2009) 45 Cal.4th 1172, 1186.) We recognize that appellant’s crimes here were dangerous. But we cannot ignore “the totality of the circumstances surrounding the commission of the offe nse in the case at bar.” ( People v. Dillon, supra, at p. 479.) Appellant was intoxicated wh en he committed the charged crimes. As pointed out in his opening brief on appeal, he “is a drunk, a fool and a bully.” But, he is not “an assassin, a violent rapist or a political terrorist,” and he should not have been
sentenced as such. Our conclusion is bolstered by examining other cases in which defendants have
been sentenced for simila r crimes. (See, e.g., People v. Toledo (2001) 26 Cal.4th 221, 226 [defendant convicted of attempted criminal threats and assault w ith a deadly weapon against his girlfriend; prior conviction for assa ult with a firearm; sentenced to 11 years]; People v. Solis (2001) 90 Cal.App.4th 1002, 1 008–1010 [defendant, a known gang member, convicted of two counts of making te rrorist threats and one count of arson after threatening to kill his ex-girl friend and another and setting fire to their residence; prior conviction for stabbing another victim in the stomach; sentenced to 24 years eight months]; People v. Franz (2001) 88 Cal.App.4th 1426, 1432, 1437–1438 [defendant, a gang member, convicted of two counts of crim inal threats, one count of spousal battery, two counts of dissuading a witness from repor ting a crime, one count of battery, and one count of assault and battery; prior conviction for counterfeiting; sentenced to four years eight months]; People v. Butler (2000) 85 Cal.App.4th 745, 748 [defendant, a gang member, convicted of making terrorist threats, assault with a dead ly weapon, burglary, and battery, after threatening and assaulting a fa mily and ordering them to move out or be killed; prior felony conviction for attemp ted robbery; sentenced to 13 years].)7 We agree with the People that appellant’s conduct “warranted a significant period of incarceration.” But, while his conduct was reprehensible, it does not support a sentence amounting to the “legal equivalent” of life without the possibility of parole. ( People v. Caballero (2012) 55 Cal.4th 262, 271 (c onc. opn. of Werdegar, J.).)
DISPOSITION The judgment is reversed and remanded for resentencing.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_____________ ________________, J. ASHMANN-GERST

We concur:

________________ ______________, P. J. BOREN

___________________ ___________, J. HOFFSTADT