P. v. Rioz

Filed 7/30/07 P. v. Rioz CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County,
John A. Torribio, Judge. Affirmed.

Juliana Drous, appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec and Alene M. Games, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________

Defendant and appellant Jessie Rioz appeals from the judgment entered following a jury trial that resulted in his conviction for making criminal threats. Pursuant to the Three Strikes law, Rioz was sentenced to a prison term of 30 years to life.

Rioz contends the trial court abused its discretion by denying his self-representation request and his Romero motion, and his sentence constitutes cruel and unusual punishment. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. Facts.

Around noon on May 4, 2004, Maria Bravo was driving home after dropping her son off at school. As she turned into her driveway, her van collided with appellant Riozs vehicle. Hearing the collision, Marias husband Salvador Bravo^[1] came outside. Salvador approached Riozs van. As he did so, Rioz stated, That son of a bitch, that whore, that stupid one. She was the guilty party. Salvador assured Rioz that he had insurance coverage, and stated, We are going [to] do this peacefully because the insurance companies can take care of everything. Salvador stated that they would call the police and say an unknown person had collided with the Bravos car so Rioz did not have to get involved. Rioz stated that if Salvador called police, he would kill you. Im going to kill you wife. Im going to kill your children. Im going to burn your house down and also Im going to call my homeboys so that they can kill you and your children. Rioz repeated his threats as Maria parked the car, and angrily shook his fists at Maria. Maria began to cry and stated that there was no need to bring the children into the situation because the insurance company would take care of everything. Salvador began to call the police on his cellular telephone, but Rioz grabbed his hand and said again, You are not going to call the police. If you do Im going to kill you, kill your wife, kill your children, burn the house down and call my friends over. Salvador put his telephone away. Both Maria and Salvador were frightened. Thirty minutes after the incident, a sheriff happened to drive down the street and intervened when he noticed the Bravos and Rioz arguing in the street. After the officer was informed of the incident, Rioz was arrested.

2. Procedure.

Trial was by jury. Rioz was convicted of making criminal threats against Maria (Pen. Code, 422),^[2] but was acquitted of making criminal threats to Salvador. Rioz admitted suffering prior convictions for assault with a firearm ( 245, subd. (a)(2)) and attempted robbery ( 664, 211), serious or violent felonies ( 667, subds. (a)(1), (b) - (i), 1170.12, subds. (a) (d)), and serving prior prison terms within the meaning of section 667.5, subdivision (b). The trial court denied Riozs Romero motion^[3] to strike a prior conviction allegation. It sentenced Rioz to a term of 30 years to life in prison. It imposed a restitution fine, a suspended parole revocation fine, and a court security assessment. Rioz appeals.

DISCUSSION

1. Faretta motion.

a. Additional facts.

Rioz was arraigned on June 3, 2004, and was represented by the Public Defenders office. The case was called for trial on July 27, 2004, and was continued to August 13, 2004.

On August 13, 2004, defense counsel informed the court that the parties were trying to reach a resolution of the matter, but Rioz wished to proceed to trial. After counsel and Rioz conferred off the record, the trial court inquired, Mr. Rioz, why do you want to go pro per? Rioz replied, Because my counsel is not defending me right. The trial court replied that defense counsel had filed a Pitchess motion^[4] and had challenged the charges against Rioz via a section 995 motion. The trial court cautioned Rioz that he was facing significant prison time if found guilty, and suggested he should consider the Peoples plea offer. The trial court further cautioned Rioz that, If you go pro per, I want you to understand its not a cake walk. If you sit in this courtroom, you sit in that chair. You dont get up and walk around. It elicited that Rioz did not know how to conduct voir dire or cross-examine witnesses. Rioz stated he understood he faced a life sentence. The trial court then queried, Okay. All right. So whats your pleasure this morning? Rioz replied, I dont like the way shes representing me. I want a new one. The trial court pointed out that defense counsel had been diligent in conducting the defense, including filing motions to dismiss the case, for discovery of peace officer records, and to strike a prior conviction allegation. It asked what else Rioz expected defense counsel to do. Rioz replied, Make her fight for me. The trial court proposed that the case be put over so we can evaluate what to do. Rioz agreed.

On September 9, 2004, Rioz and his counsel appeared in court. The parties discussed Riozs Romero motion and Riozs desire to proceed to trial. Rioz did not request self-representation.

On September 17, 2004, Rioz and his counsel appeared. The defense requested that the matter be continued because of a witness. Rioz did not request self-representation.

On October 14, 2004, Rioz and defense counsel appeared in court. Defense counsel requested another continuance due to a scheduling conflict. Rioz did not request self-representation.

On November 5, 2004, the matter was continued so defense counsel could discuss the possibility of a negotiated disposition with Rioz. Rioz did not request self-representation.

On December 1, 2004, the parties appeared and discussed a possible negotiated disposition. The trial court informed Rioz of the courts indicated sentence should he decide to enter into a plea bargain. The trial court queried whether Rioz wished to proceed to trial. The following discussion transpired:

[Rioz]: Im not ready to go to trial.

The Court: Well, the People are ready for the trial. Its a pretty old case. So, youre going to go to trial. You will go to trial tomorrow. Weve been fooling around with this for a long time, putting it over, putting it over, and letting you think about it. So, this matter will go to trial tomorrow.

[Rioz]: Can I say something?

The Court: Sure.

[Rioz]: But can I go pro per?

The Court: What, are you going to go pro per with a 50-year-to-life exposure?

[Rioz]: Yes, so I can study my case.

The Court: The whole purpose of you wanting to go pro per is to continue the trial, and Im not going to let that happen. If youre ready for trial tomorrow, you can represent yourself tomorrow. Ill let you go pro per.

[Rioz]: But Im not ready. Im not ready to go to trial. But

The Court: No, listen to me carefully. Ill let you go pro per in the event that you are ready to go to trial tomorrow. Thats the only way Ill let you act as your own counsel. The information in this case [was] filed in June of this year. Weve put this over a number of times. We had a 995 that was heard on this matter. The court ordered a preplea report for your benefit . . . . Weve continued it, continued it, continued it. . . . [] . . . [] . . . Weve got witnesses on call. So, in answer to what you requested, I will permit you to act as your own attorney if youre ready to go to trial tomorrow. If youre not going to go to trial tomorrow as your own attorney, [defense counsel] will represent you tomorrow for trial.

[Rioz]: Yeah, but Im going to need some time to do my own homework.

The Court: Mr., Rioz, you said youre not ready for trial. You did not want to go to trial tomorrow. You will go to trial tomorrow. You can either act as your own attorney tomorrow or you can have [defense counsel] represent you tomorrow. I will not grant you a continuance of this trial.

[Rioz]: But but, if youre going to grant me to go pro per, but Im going to need some time to study my case.

The Court: You know this case as well as anybody. Youre the person involved in this particular scenario, and youve been on this case and weve been on this case since June. Thats six months. Theres not much more there we need to know about it. [Defense counsel] has got witnesses on call and available. . . .

[Rioz]: Yeah, but I want to go pro per. But I want some time.

The Court: I understand what youre telling me, but what Im telling you is Im not going to let that happen. I will permit you to go pro per. You will, however, have to be ready for trial tomorrow. If you tell me Im not going to be ready to go pro per tomorrow, then [defense counsel] will represent you tomorrow. You didnt ever make this request before to go pro per, and we keep putting this over, putting this over, making offers to you, and you rejected them, indicating youre ready for trial. So, today, again, is 9 of 10, and were going to go to trial tomorrow.

Rioz responded, So, youre saying that I dont have if I go pro per, I dont have no right to waive time on the fact that I need to study my case? The court responded, Im not going to let you do that. In dealing with you on all these six months that I had you in my court, youve never before requested to go pro per, until I told you youre going to go to trial tomorrow, if this case is not disposed of. The trial court reiterated that the matter had been continued several times, and that Rioz could represent himself but no continuance would be granted. The court stated, Youve known many times this case is ready for trial and is going to go to trial. I think weve had you out once or twice earlier this week, indicating this is not disposed of. When I said youre going to go to trial, this is the first time now you say you want to go pro per. Rioz asked what would happen if he represented himself but was unready for trial the next day. The court responded, Well, thats one of the problems that youre facing going pro per at the very last moment, and its my belief that the purpose of you seeking to go pro per is merely to delay the trial, not for purposes of representing yourself.

b. Discussion.

A criminal defendant has a Sixth Amendment right to represent himself at trial. (Faretta v. California (1975) 422 U.S. 806, 819-821; People v. Jenkins (2000) 22 Cal.4th 900, 959; People v. Marshall (1997) 15 Cal.4th 1, 20.) The erroneous denial of a timely, unequivocal Faretta motion made by a competent defendant is constitutional error and requires reversal per se. (People v. Nicholson (1994) 24 Cal.App.4th 584, 594; People v. White (1992) 9 Cal.App.4th 1062, 1076.) A  trial court must grant a defendants request for self-representation if three conditions are met. First, the defendant must be mentally competent, and must make his request knowingly and intelligently, having been apprised of the dangers of self-representation. [Citations.] Second, he must make his request unequivocally. [Citations.] Third, he must make his request within a reasonable time before trial. [Citations.] (People v. Stanley (2006) 39 Cal.4th 913, 931-932.) A defendant has the burden of justifying an untimely motion, which is addressed to the sound discretion of the trial court. (People v. Marshall (1996) 13 Cal.4th 799, 827; e.g., People v. Windham (1977) 19 Cal.3d 121, 127-128; People v. Horton (1995) 11 Cal.4th 1068, 1110; People v. Jenkins, supra, at p. 959.) The timeliness requirement serves to prevent a defendant from misusing the motion to delay unjustifiably the trial or to obstruct the orderly administration of justice. (People v. Horton, supra, at p. 1110.) A trial court may deny a motion for self-representation if the court finds it is a delaying tactic. (People v. Marshall, supra, 15 Cal.4th at p. 22; People v. Rudd (1998) 63 Cal.App.4th 620, 626; People v. Howze (2001) 85 Cal.App.4th 1380, 1397-1398.)

In exercising its discretion when ruling upon an untimely motion, a trial court should consider such factors as the quality of counsels representation of the defendant, the defendants prior proclivity to substitute counsel, the reasons for the request, the length and stage of the proceedings, and the disruption or delay that might reasonably be expected to follow the granting of such a motion. [Citation.] (People v. Marshall, supra, 13 Cal.4th at p. 827; People v. Windham, supra, 19 Cal.3d at p. 128.) On review of the trial courts denial of a Faretta motion, we give considerable weight to the courts exercise of discretion and must examine the total circumstances confronting the court when the decision [was] made. [Citation.] (People v. Howze, supra, 85 Cal.App.4th at pp. 1397-1398.)

Riozs motion was untimely and the trial court did not abuse its discretion by denying it. It is settled that a self-representation request made on the eve of trial is untimely. (People v. Burton (1989) 48 Cal.3d 843, 853-854 [Faretta motion made day before jury selection began was untimely where defendant needed additional time for preparation]; People v. Windham, supra, 19 Cal.3d at p. 128, fn. 5; People v. Scott (2001) 91 Cal.App.4th 1197, 1205; People v. Horton, supra, 11 Cal.4th at p. 1110 [no abuse of discretion where trial court ruled Faretta request made day of trial, after numerous continuances, was untimely despite defendants assertion he was ready to proceed]; People v. Douglas (1995) 36 Cal.App.4th 1681, 1688-1689 [noting that motions made on the day preceding or the day of trial have been considered untimely]; People v. Howze, supra, 85 Cal.App.4th at p. 1397 [trial court did not abuse its discretion by finding a Faretta motion made two days before trial date, unaccompanied by request for continuance, to be untimely, where motion was manipulative and defendant created risk of disrupting proceedings].)

Here, review of the Windham factors supports the courts denial of the untimely motion. The courts comments made clear it believed defense counsel was representing Rioz adequately. The request was made on the very eve of trial, after witnesses were on call, when a continuance would have necessarily disrupted the proceedings. The timing of the request suggests delay was Riozs main motivation in requesting self-representation. (Cf. People v. Lawley (2002) 27 Cal.4th 102, 150-151.) Rioz offered no reason for his late request except to state he wished to study his case. The trial court concluded Riozs request was not genuine but was made for the purpose of delay, a finding supported by the record. Rioz had appeared in court on numerous occasions, but did not request self-representation until he was informed the case would finally go to trial. His Faretta request was accompanied by demands for a continuance. Indeed, the trial court repeatedly told Rioz he could represent himself, if he was ready to proceed the following day. Under these circumstances, the trial court did not abuse its discretion in concluding the motion was made as a delaying tactic. (See People v. Douglas, supra, 36 Cal.App.4th at p. 1689; cf. People v. Jenkins, supra, 22 Cal.4th at p. 1038.)

Rioz, however, urges that he requested self-representation well before trial, at the August 13, 2004 hearing. Not so. Riozs request at that hearing was equivocal at best. Rioz stated he wished to represent himself because his attorney was not defending him adequately; stated he wished to make counsel fight for him; and asked for a new attorney because he did not like counsels representation. These comments did not constitute an unequivocal Faretta request. (See People v. Stanley, supra, 39 Cal.4th at p. 932 [ [T]he right of self-representation is waived unless defendants articulately and unmistakably demand to proceed pro se and a court should draw every inference against waiver of the right to counsel]; People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1002 [Equivocation of the right of self-representation may occur where the defendant tries to manipulate the proceedings by switching between requests for counsel and for self-representation . . . .].) Furthermore, at the August 13 hearing, after being informed of the dangers of self-representation, Rioz acquiesced in the trial courts suggestion that the matter be continued so he could mull over the best course of action. Because defendant failed to articulately and unmistakably demand to proceed pro se, we conclude he never invoked his Faretta right at the August 13, 2004 hearing. (People v. Valdez (2004) 32 Cal.4th 73, 99.) Rioz never mentioned self representation again until the day before trial was scheduled to commence. (See People v. Stanley, supra, at p. 929 [defendant who accepted counsel and never renewed Faretta request deemed to have waived or abandoned his asserted right of self-representation].) In sum, the trial court did not err by denying Riozs Faretta motion.

2. The trial court did not abuse its discretion by denying Riozs motion to strike a prior conviction allegation.

a. Additional facts.

The information alleged Rioz had suffered prior convictions in 1997 for attempted robbery ( 664, 211) and assault with a firearm ( 245, subd. (a)(2)), serious or violent felonies within the meaning of the Three Strikes law. Rioz moved for dismissal of one or more prior conviction allegations pursuant to People v. Superior Court (Romero), supra, 13 Cal.4th 497. According to information gleaned by the prosecutor from the preliminary hearing transcript, police report, and probation report regarding the prior crimes, both prior convictions arose from a single incident in which Rioz attempted to rob three men at gunpoint. Rioz had approached victim Kirk Ramirez and his friends, who were playing cards either in a house or a garage. Rioz demanded a beer. Ramirez and his group refused. Rioz stated he could rob them. He then pulled out a loaded .22-caliber handgun and pointed it at the three men, and again demanded a beer. One of the men heard a click, and believed Rioz had attempted to discharge the gun. Ramirez and another man rushed Rioz, tackled him to the ground, and took the gun from him. Rioz apparently served five years in prison on the convictions.

The trial court opined that it was an extremely close case. The court indicated it always trie[d] to exercise its judicial discretion to the benefit of the defendant in the close cases, but nonetheless felt itself unable to do so here. The court indicated it had really struggled with this, because I think emotionally I dont think its a three-strike case, but intellectually I think it is . . . . The court opined that Riozs conduct was extremely egregious. Rioz not only lost his temper after a minor accident, but acted in a fashion that I think legitimately would strike fear into anyones heart. Hes in an area where gangs are plentiful, to say the least. And he flashes his gangs insignia and talks about his gang coming to get [Mrs. Bravo]. Now that to me is almost like waving a dangerous or deadly weapon. Accordingly, the trial court declined to exercise its discretion to strike a prior conviction allegation.

b. Discussion.

Rioz contends the trial court abused its discretion to strike a prior conviction allegation because the two prior strikes arose from a single act, and because his criminal history does not otherwise warrant a sentence of 30 years to life. We disagree.

The three strikes law mandates sentencing parameters which must be applied in every qualifying case unless in light of the 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 schemes 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. Carmony (2004) 33 Cal.4th 367, 377; People v. Williams (1998) 17 Cal.4th 148, 161.)

We review a trial courts decision not to dismiss a prior conviction for abuse of discretion. (People v. Carmony, supra, 33 Cal.4th at p. 375.) A trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it, and the burden is on the party attacking the sentence to make such a showing. (Id. at pp. 376-377; People v. Romero (2002) 99 Cal.App.4th 1418, 1434; People v. Myers (1999) 69 Cal.App.4th 305, 309-310.) A trial court abuses its discretion only in limited circumstances, for example where it is unaware of its discretion to dismiss or where it considers impermissible factors in declining to dismiss. (People v. Carmony, supra, at p. 378; People v. Philpot (2004) 122 Cal.App.4th 893, 905.) In the absence of such a showing, we presume the trial court acted to achieve legitimate sentencing objectives. (People v. Carmony, supra, at pp. 376-377; People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.)    An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial

judge,   and the trial courts decision will not be reversed merely because reasonable people might disagree.   (People v. Carmony, supra, at p. 377.)

Rioz relies primarily upon two cases, People v. Benson (1998) 18 Cal.4th 24, and People v. Burgos (2004) 117 Cal.App.4th 1209, in support of his argument that the trial court abused its discretion. In Benson, the California Supreme Court held that a conviction stayed pursuant to section 654 may nevertheless constitute a strike for purposes of the Three Strikes law. (People v. Benson, supra, 18 Cal.4th at pp. 26, 29-33; see also People v. Ortega (2000) 84 Cal.App.4th 659, 664.) In Benson, the defendant had suffered two prior felony convictions, one for residential burglary and one for assault with intent to commit murder. Both convictions were based on a single incident in which Benson had entered the victims apartment on a pretext, grabbed her, and stabbed her approximately 20 times. (People v. Benson, supra, at p. 27.) Sentence on the assault conviction was stayed pursuant to section 654. (Id. at p. 26.) Each conviction individually would have qualified as a strike. The question before the Benson court was whether defendant has one strike or two. (Ibid.) Benson contended the Three Strikes law could not properly be interpreted to permit separate strikes to be imposed for offenses that, in a prior proceeding, were determined to have been committed as part of an indivisible transaction, against a single victim, and as to which it was concluded that imposition of separate punishment would run afoul of section 654. (Id. at p. 28.)

Benson held, the plain language, legislative history, and legislative purpose of the Three Strikes law compel the conclusion that when a court has stayed sentence on an otherwise qualifying conviction under section 654, the stayed conviction may be treated as a strike. (People v. Benson, supra, 18 Cal.4th at p. 26.) Accordingly, the defendant had two strikes, not one. (Id. at p. 27.) Benson noted that the trial court retains discretion to strike prior conviction allegations pursuant to section 1385. (Id. at p. 36.) The court left open the question of whether there are some circumstances in which two prior felony convictions are so closely connected for example, when multiple convictions arise out of a single act by the defendant as distinguished from multiple acts committed in an indivisible course of conduct that a trial court would abuse its discretion under section 1385 if it failed to strike one of the priors. (Id. at p. 36, fn. 8; see also People v. Sanchez (2001) 24 Cal.4th 983, 993.)

Subsequently, People v. Burgos, supra, 117 Cal.App.4th 1209, found a trial court abused its discretion by refusing to strike one of two prior convictions where the prior strike convictions arose from the same act. (Id. at p. 1211.) Burgoss two prior strikes were for attempted robbery and attempted carjacking, arising from a single act. Burgos concluded the priors were so closely connected that failure to strike one of them was an abuse of discretion. (Id. at p. 1216.) In particular, unlike perhaps any other two crimes, section 215 expressly prohibited imposing punishment for both carjacking and robbery for the same act. ( 215; People v. Burgos, supra, at p. 1216.) Further, the defendants prior history did not warrant treating him as a third strike defendant. (Id. at p. 1216.)

Although the record before us is unclear, we will assume that sentence on one of the prior convictions was in fact stayed pursuant to section 654. We will also assume arguendo that the two crimes involved only a single act. However, unlike in Burgos, here the prior crimes involved more than one victim. Despite the fact that there was apparently only one attempted robbery and one assault charged, and apparently only one named victim, in fact the prior crime involved three victims, as the trial court observed. When multiple victims are targeted by a single episode of violent criminal conduct, section 654 does not apply. (People v. Davey (2005) 133 Cal.App.4th 384, 390; People v. Centers (1999) 73 Cal.App.4th 84, 99-101; People v. Hall (2000) 83 Cal.App.4th 1084, 1088-1090; People v. Solis (2001) 90 Cal.App.4th 1002, 1023.) Thus, Burgos is distinguishable.

Rioz further argues that the trial court abused its discretion because he falls outside the spirit of the Three Strikes law. He points out that, while his current offense was not petty, it was not the worst of crimes, (citing People v. Burgos, supra, 117 Cal.App.4th at p. 1216). His criminal history was not long and continuous, consisting of only the aforementioned convictions for attempted robbery and assault with a firearm, a misdemeanor conviction for driving under the influence, a felony conviction for disturbing the peace, and a misdemeanor violation of a city ordinance.

We discern no abuse of discretion. When exercising discretion to strike a prior conviction allegation, a trial court must consider both the defendants constitutional rights and societys interests. (People v. Romero, supra, 99 Cal.App.4th at p. 1433.) [I]n ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law . . . or in reviewing such a ruling, the court . . . must consider whether, in light of the 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 [Three Strikes] schemes 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, supra, 17 Cal.4th at p. 161; People v. Burgos, supra, 117 Cal.App.4th at p. 1215.) The Three Strikes law creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper. (People v. Carmony, supra, 33 Cal.4th at p. 378.)

Here, the trial courts comments clearly demonstrate it was not only well aware of its discretion to strike a prior conviction allegation under section 1385, but expended considerable effort and time weighing the relevant factors. Both the current offense and the prior robbery and assault were serious crimes with the potential for violence. In the current offense, Riozs reaction to a minor traffic accident demonstrated highly antisocial behavior and violent tendencies. Mr. Bravo repeatedly told Rioz the Bravos insurance would cover the repairs. Riozs extreme, disproportional reaction included calling Mrs. Bravo names, threatening to kill the Bravos and their children, and threatening to burn down their residence, all backed by his threat to call [his] homeboys. When Mr. Bravo attempted to call police, Rioz grabbed him. Riozs conduct so upset Mrs. Bravo that she had to be taken to the hospital.

In the prior offenses, Rioz showed himself capable of violence when he attempted to rob three persons at gunpoint for nothing more significant than a beer. Additionally, according to the prosecutors description of the prior crime, Rioz invoked his gang membership during the crime in an attempt to instill fear into the victims. Defense counsel observed that Rioz has an alcohol problem that causes his temper to rise. Riozs criminal record additionally includes a misdemeanor conviction for driving under the influence and a felony conviction for disturbing the peace. When paroled from his five-year prison term for the prior convictions, Rioz had four parole violations over the period of two years. He was on parole at the time of the instant offense. Rioz failed to benefit from the experience of his prior prison term, but instead reoffended. (See generally People v. Williams, supra, 17 Cal.4th at p. 163.) The probation report states that Riozs prognosis appears very poor or hopeless. In short, nothing about Riozs record, prospects, or character suggested this was an extraordinary case where the trial courts failure to strike a conviction allegation could be considered an abuse of discretion. (See id. at pp. 161-164 .)

3. Riozs sentence does not constitute cruel or unusual punishment.

Rioz next urges his sentence of 30 years to life in prison constitutes cruel and unusual punishment under both the federal and California Constitutions. (Cal. Const., art. I, 17; U.S. Const., 8th Amend.) We disagree.^[5]

Whether a punishment is cruel or unusual is a question of law, but we review the underlying facts in the light most favorable to the judgment. (People v. Mantanez (2002) 98 Cal.App.4th 354, 358.) A punishment violates the California Constitution if, although not cruel or unusual in its method, 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, fn. omitted.) In making this determination, we (1) examine the nature of the offense and the offender; (2) compare the punishment with that meted out for more serious crimes in California; and (3) compare the punishment with that given for the same offense in other jurisdictions. (People v. Cooper (1996) 43 Cal.App.4th 815, 825; In re Lynch, supra, at pp. 425-427; People v. Martinez (1999) 71 Cal.App.4th 1502, 1510.)

As we have already discussed in regard to Riozs second argument, nothing about the offense or the offender suggests his sentence is cruel or unusual under the California Constitution. He has a significant criminal record, and making terrorist threats is a serious offense. His sentence was imposed as a result of his recidivism, and is a permissible means of punishing him and protecting society. (People v. Martinez, supra, 71 Cal.App.4th at p. 1512; People v. Cline (1998) 60 Cal.App.4th 1327, 1337-1338; People v. Mantanez, supra, 98 Cal.App.4th at p. 359.)

As to the second prong of the Lynch analysis, Rioz complains that his sentence, when compared to sentences imposed for more serious crimes, is excessive. For example, Rioz argues that his 30-years-to-life term exceeds the sentences routinely imposed for second degree murder, manslaughter, and rape. Rioz, however, is being punished not only for his current offense, but also for his recidivism. It has been recognized on both the state and federal levels that a state may punish recidivists more harshly than non-recidivists without violating the prohibition on cruel and unusual punishment. (E.g., Ewing v. California (2003) 538 U.S. 11, 25 (plur. opn. of OConnor, J.) [ [T]he constitutionality of the practice of inflicting severer criminal penalties upon habitual offenders is no longer open to serious challenge ]; People v. Cartwright (1995) 39 Cal.App.4th 1123, 1136-1137; People v. Gray (1998) 66 Cal.App.4th 973, 993.) Moreover, this step is inapposite to three strikes sentencing because it is a defendants recidivism in combination with current crimes that places him under the three strikes law. Because the Legislature may constitutionally enact statutes imposing more severe punishment for habitual criminals, it is illogical to compare [defendants] punishment for his offense, which includes his recidivist behavior, to the punishment of others who have committed more serious crimes, but have not qualified as repeat felons. [Citation.] [Citation.] (People v. Romero, supra, 99 Cal.App.4th at p. 1433.)

In regard to the third Lynch prong, Rioz argues that Californias Three Strikes law is the most stringent in the nation. Even assuming Rioz is correct that Californias recidivist sentencing structure is among the harshest in the nation, this circumstance does not make the punishment cruel or unusual. (See, e.g., People v. Martinez, supra, 71 Cal.App.4th at p. 1516 [This state constitutional consideration does not require California to march in lockstep with other states in fashioning a penal code].)

Riozs claim that his sentence violates the federal constitution fares no better. A punishment for a term of years violates the Eighth Amendment to the United States Constitution if it is an extreme sentence[] that is  grossly disproportionate to the crime. [Citation.] (Ewing v. California, supra, 538 U.S. at p. 23 (plur. opn. of OConnor, J.); Lockyer v. Andrade (2003) 538 U.S. 63, 72; Harmelin v. Michigan (1991) 501 U.S. 957, 1001.) In a noncapital case, successful challenges to the proportionality of particular sentences have been exceedingly rare. [Citation.] (Ewing v. California, supra, at p. 21; Lockyer v. Andrade, supra, at p. 73.)

When faced with a recidivist defendant, the United States Supreme Court has found application of the Three Strikes law is not cruel and unusual punishment. (Ewing v. California, supra, 538 U.S. at p. 30 (plur. opn. of OConnor, J.).) In Ewing, the defendant was sentenced to a term of 25 years to life pursuant to the Three Strikes law for shoplifting golf clubs worth approximately $1,200. He had suffered several prior theft-related convictions, as well as convictions for robbery, battery, burglary, possession of drug paraphernalia, unlawful possession of a firearm, and trespassing. In rejecting Ewings cruel and unusual punishment claim, the Courtexplained that the Eighth Amendment contains a  narrow proportionality principle  applicable to noncapital sentences. (Id. at p. 20.) However, the Eighth Amendment does not require strict proportionality between crime and sentence, but only forbids extreme sentences that are grossly disproportionate to the crime. (Id. at p. 23.) Ewing recognized that the Three Strikes scheme represents the Legislatures judgment that protecting the public safety requires incapacitating criminals who have already been convicted of at least one serious or violent crime. Nothing in the Eighth Amendment prohibits California from making that choice. (Id. at p. 25.) In Andrade, the defendants two consecutive 25-years-to-life sentences, imposed for shoplifting videotapes valued at approximately $150, were upheld against an Eighth Amendment challenge. (Lockyer v. Andrade, supra, 530 U.S. at p. 77.)

Riozs is not the  rare case in which a threshold comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality.  (Ewing v. California, supra, 538 U.S. at p. 30.) His current offense, involving violent threats, was more serious than those at issue in either Ewing or Lockyer. In sum, Riozs claim his sentence amounts to cruel or unusual punishment fails.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ALDRICH, J.

We concur:

CROSKEY, Acting P. J.

KITCHING, J.

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^[1] For ease of reference, we hereinafter sometimes refer to Mr. and Mrs. Bravo by their first names.

^[2] All further undesignated statutory references are to the Penal Code.

^[3]People v. Superior Court (Romero) (1996) 13 Cal.4th 497.

^[4]Pitchess v. Superior Court (1974) 11 Cal.3d 531.

^[5] The People argue that Rioz has waived this claim by failing to raise it below. (People v. Norman (2003) 109 Cal.App.4th 221, 229; People v. Kelley (1997) 52 Cal.App.4th 568, 583; People v. DeJesus (1995) 38 Cal.App.4th 1, 27.) In light of our conclusion that Riozs sentence is not unconstitutionally cruel or unusual, we find it unnecessary to address the Peoples waiver argument.