P. v. Ramirez

Filed 8/21/07 P. v. Ramirez CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

Following an appeal and a remand by this court, the trial court sentenced appellant to a state prison term of 27 years to life for one count of attempted felony false imprisonment. (Pen. Code,    664, 236-237.) Appellant contends that the trial court erred in denying his request to have a new probation report prepared and that his sentence constituted cruel and unusual punishment. We affirm.

Background

The Trial

One afternoon in June 2000, 16-year-old April was walking from a bus stop in Mountain View to her continuation high school to drop off some homework. April has blond hair and blue eyes and was wearing overalls and a blue sweatshirt. She was listening to music on headphones as she walked. She noticed appellant driving slowly up and down the street in his Mustang, watching her. April testified that appellant "[d]rove up and down the street more than once." April "[r]olled [her] eyes" and "threw up [her] hands like [she] was saying, 'What?' " April kept walking, looked directly at appellant, and "flipped him off as he was driving away."

About a half hour later, after turning in her homework and meeting with her teacher, April returned to the bus stop. After several minutes of sitting there, April noticed that the Mustang was parked in a red zone behind the bus stop. Appellant approached her and said hello. He asked her what music she was listening to and they discussed their musical tastes and concert plans.

Appellant asked April what bus he could take to get to the San Antonio Shopping Center. He told her had received an estimate for work on his car earlier that day from C&C Auto Body, located directly across the street from the bus stop, and "he would be needing to know how to get to the shopping center." April testified she answered appellant's questions about the bus routes but was "acting rude" to try to get appellant to leave her alone.

Appellant talked to April for approximately 20 minutes and she "did not feel threatened" at any point. Appellant asked April where she was going. April testified, "I'm not one to tell strangers where I am going after school when I am going home." Instead, she said she was going to Target. Target is in the San Antonio Shopping Center. Appellant offered April a ride there and she declined.

Appellant continued talking to April and continued asking her if she wanted a ride. When she again demurred he said, "But I am really a nice guy," and showed her his drivers license. Once again she refused his offer and he said, "It's not like I pick up old ladies or anything." He told her that she had nice eyes. Seven times appellant asked April to "take a ride" with him.

Examining appellant's car, April and appellant moved toward the passenger side door. April testified, "He took his hand and put it on my arm and opened the passenger side door and asked me if I wanted a ride again."[1]

Mark Fernandez, a mechanic at C&C Auto Body, had been watching April and appellant from across the street. He testified he became concerned when he "noticed that [appellant] had grabbed her by the upper part of the arm and was like walking her towards his car." Fernandez called to April, "If I was you, I would not climb into that car." Appellant told April, "Never mind him. He is just a friend." Appellant said, "He is just jealous." When Fernandez approached them, appellant told him, "Well, she is my friend." Fernandez said, "Well, if she is your friend, she knows about this flyer." Fernandez showed April the sex offender flyer that Mountain View police had distributed in the area a few days earlier. The flyer described appellant as a "rapist" and had his picture and license number. Before approaching April and appellant, Fernandez had confirmed that the license plate number on appellant's car matched that listed on the flyer.

April looked shocked. She started screaming and swearing at appellant. Appellant got into his car and drove off "extremely fast" with his tires "screeching."

The prosecution introduced evidence of four prior acts of sexual misconduct by appellant, three of which occurred near the location of appellant's contact with April.[2]

In July 2003, a jury found appellant guilty of one count of attempted felony false imprisonment and one misdemeanor count of annoying or molesting a child. The jury also found appellant guilty of a second count of felony false imprisonment as a lesser included offense of attempted kidnapping and one count of misdemeanor assault as a lesser included offense of attempted rape. Appellant admitted having previously been convicted of multiple strike offenses and two prison prior convictions. (Pen. Code,  667, subd. (b), 1170.12, 667.5, subd. (b).) After denying appellant's motions to reduce his offense to a misdemeanor, and to dismiss his prior strike convictions, the trial court sentenced appellant to a state prison term of 27 years to life.

The First Appeal

In this court, appellant challenged the sufficiency of the evidence for these convictions, argued that the trial court had committed instructional error, and claimed that Penal Code section 654 barred his conviction for two counts of attempted false imprisonment.[3] In March 2005, this court held that there was insufficient evidence to support the conviction for one count of attempted felony false imprisonment, that there was sufficient evidence to support the annoying or molesting a child conviction but that prejudicial instructional error had occurred, that there was insufficient evidence for the assault conviction, and that conviction for a second count of attempted false imprisonment based on the same act was barred. We remanded with directions to the trial court to strike the assault conviction and the second attempted felony false imprisonment conviction.

Proceedings on Remand

In June 2006, appellant filed a "request for new probation report and resentence after appeal."[4] The same day, appellant filed a motion asking the trial court to dismiss appellant's strike prior convictions and a "statement in mitigation [and] reply to statement in aggravation." In his motion to dismiss his prior strike convictions, appellant posed the question, "Should Frank Ramirez spend the rest of his life in state prison for talking with a young woman at a bus stop, regardless of his intent?" He argued, "If virtually anyone on the planet other than Frank Ramirez had engaged in the behavior ascribed to him, they would not even be charged with a crime." He asserted, "a sentence of 25 years to life for engaging in a 20 minute conversation with a young woman, telling a few collateral falsehoods, and, perhaps, touching her on the arm has to be disproportionate to any concept of fair and appropriate sentencing." Appellant's strike prior convictions were one conviction for forcible rape and four convictions for assault with intent to commit rape. Appellant distinguished these from the instant case by observing, "All apparently occurred at night, in or near a bar or restaurant, and involved adult females, to whom Mr. Ramirez made misrepresentations, got to more secluded locations, then sexually assaulted." In his statement in mitigation and reply to statement in aggravation, appellant challenged the prosecutor's assertion that the victim of the current offense was particularly vulnerable, asserting "indeed, if anything, she was a pretty tough cookie." Appellant argued, as mitigation, "The alleged victim was a willing participant in the entire incident (up until the time she was shown the Megan's Law flyer, at which point the conversation ended)."

On June 29, 2006, defense counsel asked if the court was "inclined to order the new probation report." The court said, "I've reviewed the old probation report. It's two and a half years old. I don't think there is any need to do a new probation report." Counsel responded, "frankly this might be an abuse of discretion not to order a new report under the circumstances, given both the length of time as well as the presumption in favor of a new report dealing with Mr. Ramirez' time in custody. . . . I still think that you should order the new report." The court said, "I simply don't see the reason for that. . . . I'm going to deny the request for a new probation report. I don't think there is any need for that."

On August 3, 2006, defense counsel prefaced his remarks on his motion to dismiss the strike prior convictions by saying, that to the extent "it is solely predominant upon Mr. Ramirez' prior criminal record we'll lose, to the extent that one considers and places weight upon the nature of the present offense we should win." Counsel suggested that if the court were to consider sentencing appellant as a two strike offender rather than a three strike offender that appellant would consider waiving credit for the time he had already served. Counsel argued that a life term would be cruel and unusual punishment, and that appellant was getting a "double whammy" because he would not have been convicted of this offense had not evidence of the same prior convictions which were now being used to impose a life term been introduced at trial. The prosecutor argued that the "underlying nature of the offense by itself is what it is" but that appellant had a "25 year history of striking up conversation with women, lying to them, getting them to a secluded location, attacking them, sexually assaulting them and then lying about it afterwards in what he was doing." Appellant told the trial court "I'm not a time bomb."

The trial court noted that appellant had been sent to prison for 16 years, eight months for one count of rape and three counts of assault with intent to commit rape, was released, was sent to prison for 10 years for assault with intent to commit rape, and was on parole at the time of the instant offense. The court said that appellant's performance on both probation and parole had been poor. Noting appellant's "11 felony and five misdemeanor priors," the court said that appellant had "what the Court calculates [as] an unbroken prison record since 1981." The court said that it considered appellant "dangerous" and to come "squarely" within the intent of the three strikes law. The court sentenced appellant to a state prison term of 27 years to life.

Discussion

New Probation Report

Appellant contends, "the trial court erred when it denied appellant's request to have a new probation report prepared." Penal Code section 1203 mandates the preparation of a probation report for a defendant convicted of a felony but eligible for probation. However, subdivision (g) of section 1203 provides in relevant part, "If a person is not eligible for probation, the judge shall refer the matter to the probation officer for an investigation of the facts relevant to determination of the amount of a restitution fine pursuant to subdivision (b) of Section 1202.4 in all cases where the determination is applicable. The judge, in his or her discretion, may direct the probation officer to investigate all facts relevant to the sentencing of the person." California Rules of Court, rule 4.411(b) provides, "Even if the defendant is not eligible for probation, the court should refer the matter to the probation officer for a presentence investigation and report." Rule 4.411(c) states, "The court must order a supplemental probation officer's report in preparation for sentencing proceedings that occur a significant period of time after the original report was prepared."

Appellant cites cases holding that defendants are entitled to supplemental probation reports where sentencing occurs a significant period of time after preparation of the original probation report. (People v. Rojas (1962) 57 Cal.2d 676, 682; People v. Mercant (1989) 216 Cal.App.3d 1192, 1196.) Appellant cites cases holding or stating that a defendant who is resentenced and who is not eligible for probation has a right to have a supplemental probation report prepared, such as People v. Brady (1984) 162 Cal.App.3d 1, 6-7, and People v. Mercant, supra, 216 Cal.App.3d at page 1195. In Brady, the court held that "upon remand for resentencing, even when the defendant is ineligible for probation, if the resentencing court has discretion to alter the length of the defendant's imprisonment, it must obtain a new, updated probation report, including information regarding the defendant's behavior while incarcerated during the pendency of any appeal, before proceeding with the resentencing." (Id. at p. 7.) Appellant recognizes that "more recent Court of Appeal cases have held that the preparation of a supplemental probation report in such a situation is discretionary." Indeed, as respondent points out, in People v. Bullock (1994) 26 Cal.App.4th 985, the Fifth District Court of Appeal revisited its decision in Brady and concluded that the reasoning of Brady and the subsequent decisions of the Fifth District that followed Brady was flawed because those cases did not address the language in Penal Code section 1203, subdivision (g). (Bullock, supra, 26 Cal.App.4th at p. 989.) The court explained that the Legislature's failure to make a referral for a probation report mandatory when the defendant is not eligible for probation reflects a legislative decision that a report is not required in every instance. However, Bullock said that the trial court should have a sound reason for not obtaining a current report. "The defendant's postconviction behavior and other possible developments remain relevant to the trial court's consideration upon resentencing. Still, in many cases[,] obtaining a new report will be a meaningless exercise. The trial court is in the best position to evaluate the need for an updated report, with the input of counsel." (Id. at p. 990.)

Respondent also cites People v. Llamas (1998) 67 Cal.App.4th 35, 39 and People v. Tatlis (1991) 230 Cal.App.3d 1266, 1272-1273. In Llamas, a resentencing hearing was held pursuant to a motion to dismiss a strike prior conviction. On appeal, the defendant complained that the trial court had erred by failing to order a new probation report. The defendant was statutorily ineligible for probation because of the strike prior conviction. The court considered rule 4.411's (then rule 411) directive mandating a supplemental report when the sentencing occurs a significant period of time after the original report was prepared. The court said, "Its only reasonable interpretation, reading it in light of rule 411(a) and (b), is that a supplemental report is required only if the defendant is eligible for probation." (Llamas, supra, 67 Cal.App.4th at pp. 39-40.)

In People v. Tatlis, supra, 230 Cal.App.3d 1266, the defendant was being resentenced several years after his probation report had been prepared. The Tatlis court held that the trial court's error in failing to exercise its discretion in considering defendant's request for a current probation report was prejudicial, deprived defendant of due process, and required vacation of his sentence and remand for another resentencing. The court said that although a referral for a new probation report is not mandatory, there should be a sound reason for departing from the preferred practice of making the referral. (Id. at p. 1273.) The court said, "[W]hen a defendant has requested a current probation report and the court originally had ordered and considered a probation report, a good countervailing reason will be required for denying the request. Most assuredly, the court must have some substantial basis for the denial; there must be far more than a subjective desire to avoid information which might require consideration of something other than a maximum sentence. Anything less deprives a defendant of his or her due process right to have the court exercise informed sentencing discretion." (Id. at pp. 1273-1274, citing United States v. Tucker (1972) 404 U.S. 443.)

In Tatlis, the trial judge said that she would not change her mind about the sentence, it was unclear whether the trial court understood that she could order a new report, and the defendant had presented evidence through his writ petition of mitigating circumstances that should be weighed against aggravating circumstances in determining his sentence.

Here, because of his five prior strike convictions, appellant was ineligible for probation. (Pen. Code  667, subd. (c)(2), 1170.12, subd. (a)(2).) Thus, when the court that had presided over appellant's jury trial ordered the probation report, that order was discretionary. That court considered the probation report and appellant's motion to dismiss his prior strike convictions before sentencing. Following remand from this court, some two-and-a-half years after the probation report had been prepared, the case was assigned to a different trial court for sentencing. The sentencing court, in denying appellant's request for an updated probation report, did not recite any reason for departing from the preferred practice of ordering a new report. The court simply said that it did not see any reason to order such a report. Because appellant had been in custody since the preparation of the first report, the trial court may have believed, without stating as a good countervailing reason, that there would be little new information relevant to the informed exercise of sentencing discretion and that any such information would be presented at the motion to dismiss appellant's prior strike convictions.[5]

In any event, even if we were to consider it an abuse of discretion not to order an updated probation report, any error was harmless. Appellant argues that the failure to obtain a current probation report requires a remand for resentencing without consideration of whether the error was harmless. Appellant acknowledges that "there is case law holding that a trial court's erroneous failure to order a new probation report is harmless unless there is a reasonable probability of a result more favorable to the defendant if not for the error. (People v. Dobbins (2005) 127 Cal.App.4th 176, 182.)" We have found no case that applies a reversible per se standard of error to the court's failure to obtain a current probation report. In Mercant, supra,the court reversed and remanded the case for resentencing because the court was unable to determine whether a current probation report would have disclosed information that could have benefited defendant. Here, appellant argues that "the case was in a significantly different posture at the resentencing hearing" because three of the four counts of which appellant was convicted had been reversed by this court on the first appeal. Appellant argues, "There was nothing barring the trial court from dismissing all or all but one of the strikes or of deciding not to impose sentence on the two 'prison-term' priors." However, the court did not need a probation report to understand that it had the discretion to make these choices. It is fair to assume that any information which would have persuaded the court to do so would have been presented at the motion to dismiss the strike prior convictions. For that reason, we disagree with appellant's assertion that "we do not and cannot know what [the] supplemental probation report would have said or what the effect of that report would have been on the trial court." Thus, any information that would have assisted the court in making these determinations was before the court at the time it denied the motion to dismiss the strike prior convictions and sentence appellant. The court clearly stated why it was denying the motion and sentencing appellant to the three strikes term, and appellant suggests no information that could have been contained in a current probation report that would have impacted this decision. Likewise, although it may be true that a recommendation for a more lenient sentence contained in a "report prepared by a neutral agency such as the probation department" would carry more weight with the court than the argument of counsel, appellant does not suggest what might have caused a change in the evaluation of this case by the probation department since the original report was prepared. Consequently, appellant has not shown that, but for the error in failing to obtain a current report, his sentence would have been more favorable or that he has been denied due process.

Cruel and/or Unusual Punishment

Appellant contends that his sentence is cruel and unusual punishment "within the meaning of the Eight Amendment to the United Stated Constitution" and "within the meaning of Article I,  17 of the California Constitution." A punishment is excessive under the Eighth Amendment if it involves the "unnecessary and wanton infliction of pain" or if it is "grossly out of proportion to the severity of the crime." (Gregg v. Georgia (1976) 428 U.S. 153, 173 [96 S.Ct. 2909].) A punishment may violate article I, section 17 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.) On appeal, we evaluate the question of cruel and/or unusual punishment by resolving factual disputes in favor of the judgment, and exercising our independent judgment on the issue of constitutionality. (People v. Meeks (2004) 123 Cal.App.4th 695, 706-707.) A "defendant must overcome a 'considerable burden' in convincing us his sentence was disproportionate to his level of culpability." (People v. Weddle (1991) 1 Cal.App.4th 1190, 1197.) Successful challenges to proportionality are an "exquisite rarity." (Id. at p. 1196.)

In Lockyer v. Andrade (2003) 538 U.S. 63 (123 S.Ct. 1166), the defendant stole $153.84 worth of videotapes from two stores on separate occasions. A jury convicted him of two counts of petty theft with a prior and found that he had at least two prior strike convictions. The court sentenced him under the three strikes law to two consecutive life terms. The record revealed the following: in 1982, the defendant suffered a state misdemeanor theft conviction and a few felony burglary convictions; in 1988, the defendant suffered a federal conviction for transporting marijuana; in 1990, the defendant suffered a state misdemeanor petty theft conviction and a second federal conviction for transporting drugs; in 1991, the defendant was arrested for a state parole violation-escape from federal prison; in 1993, the defendant was released on parole; and, in 1995, the defendant committed the two current offenses. Given these circumstances, the court did not find the defendant's two life terms to be unconstitutional.

In Ewing v. California (2003) 538 U.S. 11 (123 S.Ct. 1179), the defendant was convicted of grand theft for stealing three golf clubs worth $399 each. Under the three strikes law, the trial court imposed a life term. The record revealed that the defendant's criminal history spanned from 1984 to 1999 and included misdemeanor and felony convictions for petty theft, auto theft, battery, burglary, robbery, possession of drugs, trespass, and unlawful possession of a firearm. There too, the court did not find the defendant's sentence to be unconstitutional.

Appellant relies on five cases in which a three strikes sentence was held to constitute cruel and unusual punishment. Appellant argues that post-Ewing cases note that "although the defendant's prior convictions must be taken into account, the focus must be on the charged offense, and by holding that if too much weight is given to the prior convictions, the defendant ends up unlawfully being punished a second time for his prior convictions."

Appellant cites People v. Carmony (2005) 127 Cal.App.4th 1066, in which a divided panel held that it was cruel and unusual punishment to impose a life sentence based upon a registered sex offender's failure to " 'update' " his listed address, which had not changed, within five days after a birthday. The court framed the issue as "whether there is an offense so minor that it cannot trigger the imposition of a recidivist penalty without violating the cruel and/or unusual punishment prohibitions of the United States and California Constitutions." (Id. at p. 1071.) It concluded that under the circumstances shown there, "a 25-year recidivist sentence imposed solely for failure to provide duplicate registration information is grossly disproportionate to the offense, shocks the conscience of the court and offends notions of human dignity, it constitutes cruel and unusual punishment under both the state and federal Constitutions." (Id. at p. 1073.) The decision rested, however, upon extremely narrow grounds: The majority concluded that the punishment was "grossly disproportionate to the gravity of the offense," which "was an entirely passive, harmless, and technical violation of the registration law." (Id. at p. 1077.)

In Reyes v. Brown (9th Cir. 2005) 399 F.3d 964, the defendant was convicted of perjury for making misrepresentations on a California Department of Motor Vehicles application after he filled out a driver's license application for his cousin. Reyes had suffered prior convictions for a nonviolent residential burglary and an armed robbery. The perjury conviction constituted his third strike, and resulted in a 26 years to life sentence. A federal district court denied Reyes's habeas petition. The Ninth Circuit concluded the facts necessary to evaluate the petition had not been sufficiently developed before the district court, and remanded for further proceedings. (Id. at pp. 964-965.) The court said that neither the perjury offense of falsifying a driver's license application nor the other prior conviction as a juvenile for an apparently nonviolent residential burglary threatened grave harm to society for purposes of justifying the extreme sentence, and remanded for a determination of whether petitioner's prior armed robbery offense was a crime against a person or involved violence, and thus justified his extreme sentence for perjury.

In Ramirez v. Castro (9th Cir. 2005) 365 F.3d 755, the Ninth Circuit held a third strike term of 25 years to life for "a nonviolent, three-time shoplifter" violated the Eighth Amendment. (Id. at pp. 769-770, 773.) Ramirez had been caught shoplifting a VCR valued at approximately $200, and immediately surrendered to authorities; the incident was nonviolent. He had suffered two prior convictions related to shoplifting incidents, which had been charged as robberies. The Ramirez court concluded that the sentence was unconstitutional where (1) the current offense was a "wobbler," i.e., a nonviolent petty theft; (2) Ramirez's two prior robberies were, in fact, shoplifting offenses, charged as robberies only because Ramirez pushed a security guard with his open hand in one incident, and an accomplice ran over a security guard's foot, causing minor injuries, while fleeing in the other; (3) Ramirez had served only six months in jail for the prior convictions; and (4) he had never served a prison term for any other conviction. (Id. at pp. 768-769.)

In Banyard v. Duncan (C.D.Cal. 2004) 342 F. Supp.2d 865, the defendant was arrested for possessing a fraction of a gram of rock cocaine, which he had just purchased and which was enough only for a single use. The defendant had two prior strike convictions, for robbery and assault with a deadly weapon. The court found a 25-year-to-life sentence to be grossly disproportionate to the predicate offense. (Id. at pp. 867-868, 878.) Additionally, the Banyard court reviewed the record and determined that both of the crimes that had been deemed prior strikes were not serious or violent felonies. (Id. at pp. 875-876, 877-878.)

In Duran v. Castro (E.D.Cal. 2002) 227 F.Supp.2d 1121, the defendant was charged with petty theft with a prior theft, based on shoplifting $27 worth of clothing, and possession of heroin for personal use. Pursuant to a plea bargain, the petty theft charge was dismissed. Duran was then sentenced under the three strikes law to 25 years to life for the heroin possession conviction, based upon two prior "strikes" for kidnapping convictions. (Id. at p. 1124.) In finding the three strikes sentence to violate the Eight Amendment, the district court cautioned against allowing the recidivism rationale to impermissibly function as a "wild card that renders any penalty constitutional, however severe its terms and however minor the principle offense." (Id. at p. 1130.) In stressing the minor nature of possession of a small amount of heroin, the Duran court pointed out that such possession carries no more threat of violence than does addiction to heroin, for which imprisonment is proscribed by the Eighth Amendment. (Id. at p. 1128, citing Robinson v. California (1962) 370 U.S.660, 667 [82 S.Ct. 1417].) Precisely because the nature of Duran's offense was so minor, his recidivism could not account for the extreme length of his sentence without breaching the boundaries imposed by the Double Jeopardy Clause. (Id. at p. 1131.)

Reviewing the details of appellant's prior strike convictions, appellant argues, "Although the prior offenses constitute five strikes, instead of the minimal two needed for a three strikes sentence, and although the strike offenses are serious and involve force and a culpable state of mind, appellant submits that they do not justify the 27 year to life sentence for the minor current offense. As the above cases make clear, when the current offense is minor, the severe three strikes sentence is improperly being imposed primarily to punish the defendant a second time for his serious prior offenses." Appellant also argues that his criminal history has become less serious over time. He argues that his "current offense is minor, involved no force or danger to the victim and society and was punishable with the shortest punishment available for a felony."

Unlike the defendant in Carmony, appellant's offense was not an entirely passive, harmless, and technical violation of a registration law. Although in the abstract attempted false imprisonment is punishable with the shortest punishment available for a felony, a consideration of the particulars of this case, especially that appellant's efforts to get April into his car were halted only through the intervention of a third party, the offense can not be seen as either passive or harmless. Unlike the defendant in Reyes, appellant's prior offenses are crimes against a person and involved violence. Unlike the defendant in Ramirez, appellant had served two prison terms for his prior convictions, none of which, based on the information about them presented at trial, could be said to have been overcharged. Significantly, unlike the defendant in Banyard, appellant's prior strikes are serious and violent felonies and the offense for which appellant was sentenced represents a "continuation of a specific pattern of criminal behavior for which the offender had been previously punished at least two times before." (Banyard v. Duncan,supra, 342 F.Supp.2d at p. 874.) As for appellant's reliance on Duran, we note that the Duran court said, "A stiffened penalty is warranted 'only if the defendant's current offense involves a repetition of a particular offense characteristic, indicating that the defendant remains prone to that specific kind of antisocial activity.' " (Duran v. Castro, supra, 227 F.Supp.2d at p. 1130, quoting Brown v. Mayle (9th Cir.2002) 283 F.3d 1019, 1036.) Here, April's description of appellant's behavior during the current offense is strikingly similar to the victims' descriptions of his behavior leading up to the commission of the offenses for which he had been previously convicted. Undoubtedly, there may be a case in which the offense for which a defendant is being sentenced is so minimal as to make a three strikes sentence cruel and unusual punishment regardless of the nature of one's prior convictions. However, this is not that case. Appellant has failed to show that he falls into the exceedingly rare or extreme category of cases such that his sentence of 27 years to life constitutes cruel and unusual punishment under either the state or federal standard.

Disposition

The judgment is affirmed.

_____________________________

ELIA, J.

WE CONCUR:

_____________________________

RUSHING, P. J.

_____________________________

PREMO, J.

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[1] When April first reported this incident to the investigating officer, and at the preliminary examination, she said appellant did not touch her arm.

[2] The jury was read a transcript of the testimony given by Linda R. in an earlier criminal case. Her testimony established that in 1982, she was waiting outside the Saint James Infirmary at closing time while her boyfriend drove someone else home. Appellant came up to her and they talked for several minutes. They walked toward a gas station that was next door to the bar. Appellant put his hand on her shoulder and then put it around her mouth and throat. She could not talk or call out. He told her that he would kill her, but that if she were quiet he would not hurt her. Appellant kissed her and removed her pants. He tried unsuccessfully to have intercourse with her. He moved her to another area and raped her, repeating his threats to kill her. Linda heard her boyfriend's car and managed to yell for him. Appellant ran off.

Other witnesses testified to three other acts of sexual misconduct by appellant. In January 1983, Jody and her friend met appellant at closing time at the Saint James Infirmary. Appellant offered to give them directions to a party and rode with them to an apartment complex. After an unsuccessful attempt to find the party, Jody and Carol decided to leave, and Carol went to get her car while Jody stayed with appellant. Appellant grabbed Jody, hit her on the side of her face and head, and started dragging her through a parking lot. Carol drove up, and appellant grabbed Jody by the arm and swung her onto the hood of Carol's car. He told Carol not to listen to Jody because she was drunk. Carol drove away with Jody.

Six days later, Ann and Sherry went to the Saint James Infirmary. Appellant told Ann that her friend was getting sick outside the bar and was calling for her. Ann followed appellant to where he said Sherry was, but, as they walked through an apartment complex, Ann said she did not believe appellant and started walking back. Appellant came up behind Ann, threw her down, put his hands around her neck and began choking her with both hands. He covered her mouth when she tried to scream. Someone came to help her and appellant ran off.

In 1992, Patricia and Tisha went to the Black Angus restaurant in Sunnyvale. Appellant told Patricia that Tisha was outside and was pretty drunk. Patricia accompanied appellant to the parking lot to look for her. When they came to a dark secluded spot, appellant pushed Patricia down on some ivy, got on top of her, started choking and gagging her, and put his hand under her skirt. Some other people in the parking lot heard the commotion and approached. Appellant ran off.

[3] This court has taken judicial notice of the records in People v. Ramirez, H026832.

[4] The prosecutor elected not to re-try the misdemeanor violation of annoying or molesting a child.

[5] Although courts have found new reports should have been ordered after interims of three years (People v. Mercant, supra, 216 Cal.App.3d at p. 1195) and two and a half years (People v. Causey (1964) 230 Cal.App.2d 576, 579) since the preparation of the original probation reports, the defendants in those cases were out of custody during those time periods.