California Court of Appeal Apr 5, 2016 No. D069069Unpublished
Filed 4/5/16 P. v. Zanetti CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D069069
Plaintiff and Respondent,
v. (Super. Ct. No. FWV1200202)
ADRIAN ENRIQUE ZANETTI,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Bernardino County, Jon
D. Ferguson, Judge. Affirmed in part, reversed in part, and remanded with directions.
Nancy Olsen, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler and Julie L. Garland,
Assistant Attorneys General, Peter Quon, Jr., Randall D. Einhorn and Anthony Da Silva,
Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Adrian Enrique Zanetti of six counts of second degree robbery
(Pen. Code,1 § 211). It found true as to all counts that Zanetti personally used a firearm
(§ 12022.53, subd. (b)). In separate proceedings, Zanetti admitted he suffered four prior
strike convictions (§§ 1170.12, subds. (a)-(d), 667, subd. (b)) and two prior serious felony
The trial court sentenced Zanetti under the "Three Strikes" law to a 225-years-to-
life prison term as follows: 20 years plus 25 years to life for each count, with count 3 to
be served concurrently with count 6. As to each count, the court ordered Zanetti to pay,
among other fines and fees, a $30 court security fee under section 1465.8, and a $30
criminal conviction fee under Government Code section 70373.
On appeal, Zanetti contends: (1) his count 3 sentence must be stricken as he
cannot be convicted of robbing the same victim twice in the same incident; alternatively,
his count 3 sentence must be stayed under section 654; (2) insufficient evidence supports
his count 2 conviction; (3) his sentence is cruel and unusual under the state and federal
Constitutions; and (4) the abstract of judgment should be amended to reflect the oral
pronouncement of judgment on count 4; as well as to correctly reflect the sentence
imposed for his prior serious felony convictions.
Finding merit in Zanetti's first and fourth contentions, we will strike the count 3
conviction and otherwise affirm the judgment. We remand the matter to the trial court
with directions to amend the abstract of judgment as set forth below.
1 Statutory references are to the Penal Code unless otherwise stated. 2
FACTUAL BACKGROUND2
The Electronics Store Robbery (Count 2)
On January 20, 2012, Jonathan Aguiar was working as a cashier at an electronics
store while his manager, Malik Ahmed, filed paperwork in a back room. Zanetti entered
the store wearing a black and gray sweatshirt with the hood pulled over his head. Aguiar
briefly saw Zanetti's face. Zanetti told him not to look at him, and demanded money.
Zanetti flashed a black, holstered handgun underneath his sweatshirt, and Aguiar put his
hands up out of fear. Aguiar glanced at the lower half of Zanetti's face but Zanetti again
told Aguiar not to look at him.
Aguiar opened the register and placed the money on the counter. After Zanetti
took the money, he asked for electronic devices and directed Aguiar to the back room.
Aguiar saw Zanetti pull the hood of his sweatshirt off his head. Zanetti asked Ahmed for
money and electronic devices, but Ahmed informed him that all the money was in the
cash register. Zanetti pushed Aguiar, ordered the men to stay in the back room, and left.
Later that day, Ahmed described the suspect to an Ontario Police officer based on
his memory of the suspect's chin. Ahmed also relied on information Aguiar had relayed
to him. Ahmed later identified Zanetti in a photographic lineup.
2 Zanetti robbed three separate businesses in Ontario, California. On January 19, 2012, he robbed a pharmacy using a semiautomatic handgun. Zanetti does not appeal his conviction on this count. 3
Aguiar, who felt nervous and scared soon after the incident, told police he was
unable to identify the suspect because he did not get a good look at him. Aguiar
identified Zanetti in a photographic lineup a couple of weeks later.
The Fast Food Restaurant Robberies (Counts 3 through 6)
On January 24, 2012, at approximately 8:20 p.m., Madeline Ramos was mopping
the dining room area of a fast food restaurant while Diana Velez, another employee, was
otherwise occupied. After seeing Zanetti open the door wearing a gray-hooded sweater,
baseball-style gloves, and a clear plastic mask with red lips and black eyebrows, both
employees screamed and ran to a back room. Zanetti followed them and said, "Stupid
girls, why are you screaming? All I want is a sandwich." The restaurant manager,
Harshil Lad, who had been in the freezer, offered to assist Zanetti at the front of the
restaurant. Zanetti patted the right side of his waist. Zanetti unzipped his sweatshirt,
displayed a black gun, and said, "I have a gun. All I want is money. I don't want to hurt
anybody." Zanetti took Lad to join the female employees in the back room and told Lad
to open a safe, but Lad replied the safe was broken. Zanetti asked Lad to turn off the
surveillance system, but Lad said he could not do it. Zanetti reminded the employees he
was armed and "didn't want to hurt" them. He took Lad's cell phone, saying, "I'm just
taking it so you guys don't call the cops."
When Lad told him all the money was in the front register, Zanetti directed the
employees there. Lad gave Zanetti a bag of money taken from the register, and Zanetti
took the women's cell phones from the counter. Zanetti lead the employees to the back
4
room, ordering them to say there for five minutes. After a few minutes, Lad returned to
the front of the store, verified that Zanetti had left, and called 911.
Zanetti's Arrest
Ontario Police Department officers arrived at the restaurant and took separate
statements from the employees. Lad said he had installed a telephone application that
could track his phone's location. Later that evening, officers tracked Lad's phone to
Zanetti's residence and set up a perimeter around the residence. A police helicopter
observed Zanetti smashing a cell phone, throwing the phone away, and returning to his
residence. Officers detained Zanetti and found the women's cell phones and Lad's phone
case. Officers recovered from Zanetti's residence a wallet containing $190, a black-gray
reversible sweater, baseball-style gloves, and a mask. Ramos, Velez, and Lad separately
identified Zanetti in in-field identifications. Ramos identified the mask that Zanetti had
worn.
DISCUSSION
I.
Count 3 Must Be Stricken Because Zanetti Only Committed a Single Robbery of Lad
Count 3 arises from the robbery of Lad's phone, and count 6 from the robbery of
Lad as an "employee of [the restaurant]," as alleged in the information. Zanetti contends
insufficient evidence supports his count 3 conviction as he did not commit counts 3 and 6
"with a separate intent and plan"; instead, he committed only one robbery in a
"continuous course of conduct with a single objective."
5
A. Background
On April 17, 2014, defense counsel moved under section 995 to set aside either the
count 3 or count 6 charge.3 The court stated, "It might be a sentencing issue down the
road, but it's not a [section] 995 issue," and denied the motion: "I think what saves [both
counts] is the gap in time."
Zanetti later moved for a judgment of acquittal under section 1118.1 on all the
charges and enhancements. The trial court denied the motion.
At sentencing, defense counsel argued section 654 should apply because the six
counts were actually "three separate instances." The court declined to impose
consecutive sentences on both counts: "[I]t was still a continuous course of conduct. It
was indivisible in time, the taking, that was the same application—sustained application
of fear that made the crime of robbery that the victim was still undergoing at the time the
second taking occurred, so in the Court's view, it would be inappropriate to run those
counts consecutive." The court did not stay the count 3 sentence under section 654.
B. Legal Principles
Well settled standards apply to Zanetti's substantial evidence challenge. " 'In
reviewing a challenge to the sufficiency of the evidence, we do not determine the facts
ourselves. Rather, we "examine the whole record in the light most favorable to the
judgment to determine whether it discloses substantial evidence—evidence that is
reasonable, credible and of solid value—such that a reasonable trier of fact could find the
3 The first amended information listed the robberies of Lad as counts 4 and 10. 6
defendant guilty beyond a reasonable doubt." [Citations.] We presume in support of the
judgment the existence of every fact the trier could reasonably deduce from the evidence.
[Citation.] [¶] The same standard of review applies to cases in which the prosecution
relies primarily on circumstantial evidence and to special circumstance allegations.
[Citation.] "[I]f the circumstances reasonably justify the jury's findings, the judgment
may not be reversed simply because the circumstances might also reasonably be
reconciled with a contrary finding." [Citation.] We do not reweigh evidence or
reevaluate a witness's credibility.' [Citations.] 'Resolution of conflicts and
inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.]
Moreover, unless the testimony is physically impossible or inherently improbable,
testimony of a single witness is sufficient to support a conviction.' " (People v. Brown
(2014) 59 Cal.4th 86, 105-106.)
A person may be convicted of more than one crime arising out of the same act or
course of conduct. (§ 954; People v. Reed (2006) 38 Cal.4th 1224, 1226.) However, "[a]
single crime cannot be fragmented into more than one offense." (People v. Rouser
(1997) 59 Cal.App.4th 1065, 1073.)
"Robbery is the felonious taking of personal property in the possession of another,
from his person or immediate presence, and against his will, accomplished by means of
force or fear." (§ 211.) "[T]he crime of robbery consists of larceny plus two aggravating
circumstances: (1) the property is taken from the person or presence of another; and (2)
the taking is accomplished by the use of force or by putting the victim in fear of injury."
(People v. Gomez (2008) 43 Cal.4th 249, 254, fn. 2.) "[W]hen a defendant steals by force
7
or fear more than one item during the course of an indivisible transaction involving a
single victim, he commits only one robbery notwithstanding the number of items he
steals." (People v. Marquez (2000) 78 Cal.App.4th 1302, 1304.) A defendant commits
only one robbery no matter how many items he steals from a single victim pursuant to a
single plan or intent. (People v. Ortega (1998) 19 Cal.4th 686, 699 (Ortega), overruled
on other grounds in People v. Reed, supra, 38 Cal.4th at pp. 1228-1232; see also People
v. Packard (1982) 131 Cal.App.3d 622, 626 [multiple robbery convictions based on the
taking of multiple items may be sustained only "if each taking is the result of a separate
independent impulse or intent"].)
In Ortega, supra, 19 Cal.4th at p. 690, four defendants exited their car, surrounded
a parked van, approached the driver and the passenger, and assaulted the driver. As the
driver complied with one defendant's demand for his wallet, the defendant saw his pager.
(Id. at pp. 690-691.) One defendant threw the wallet back to the driver but kept the
driver's pager. (Id. at p. 691.) Meanwhile, another defendant beat the passenger and
pulled off the passenger's sweater after the passenger exited the van. (Ibid.) The
defendants responsible for the beatings entered the van and drove away, closely followed
by the other defendants. (Ibid.) The defendants were convicted of two counts of
carjacking based on taking the van from the possession of the driver and passenger; two
counts of robbery, based on the forcible theft of the driver's wallet and pager and the
passenger's sweater; and one count of grand theft of a vehicle. (Ortega, supra, 19 Cal.4th
at pp. 690-691.) Count 3 had alleged the defendants robbed the driver's personal
8
property, and count 5 had alleged the defendants committed grand theft of the driver's
van. (Id. at p. 699.)
The California Supreme Court held the defendants were improperly convicted of
robbery of the vehicle and grand theft of the vehicle: "[T]he property taken in the
robbery of [the driver], charged in count 3, included the van. 'When a defendant steals
multiple items during the course of an indivisible transaction involving a single victim, he
commits only one robbery or theft notwithstanding the number of items he steals.' "
(Ortega, supra, 19 Cal.4th at p. 699, citing People v. Brito (1991) 232 Cal.App.3d 316,
326, fn. 8; see also People v. Irvin (1991) 230 Cal.App.3d 180, 185 [a robber cannot be
charged with and convicted of a separate robbery or an additional theft offense because
"he or she took more than one item from a solitary victim during a single course of
conduct"].)
In People v. Marquez, supra, 78 Cal.App.4th 1302, the defendant was convicted of
two separate robberies arising from an incident in a restaurant. (Id. at pp. 1304-1305.)
The appellate court characterized the defendant's actions as an "indivisible transaction."
(Id. at pp. 1304, 1307.) "In one seamless ill-conceived effort, defendant walked up to the
counter at Lyon's restaurant, threatened [the waitress] with a handgun, thereby
convincing her to hand over her tips lying on the counter and Lyon's operating money
from the cash drawer. This was an indivisible transaction involving a single victim who
was forced to relinquish possession of two separately owned amounts of money at the
same place and at the same time." (Id. at p. 1307.)
9
The Marquez court held that substantial evidence did not support the defendant's
two separate robbery convictions because the defendant committed only one robbery
"notwithstanding the number and ownership of the items he steals." (People v. Marquez,
supra, 78 Cal.App.4th at p. 1304.) "Since the central element of robbery is force or fear,
a defendant may be convicted of a separate robbery for each victim of such force or fear,
even if the victims are in joint possession of the property taken. [Citations.] Here, in
contrast, the defendant committed only one larceny against a single victim involving one
threatened application of force and occurring at the same place and time. In these
circumstances the single larceny can only support a single count of robbery." (Marquez,
at p. 1308, fn. omitted.)
C. Analysis
The law set forth in Ortega, supra, 19 Cal.4th 686 and Marquez, supra, 78
Cal.App.4th 1302, applies here. Zanetti took Lad's phone in the back room of the
restaurant, and soon afterwards ordered the employees to the front of the restaurant and
took the money Lad collected from the register. As the trial court concluded in
sentencing Zanetti concurrently on counts 3 and 6, these acts were committed in one
indivisible transaction. In fact, Zanetti's stated purpose in taking Lad's phone was to
prevent Lad from calling the police before Zanetti could complete the robbery.
Therefore, Zanetti committed only one robbery against Lad, starting with Lad's phone
and continuing with the register money. The robbery did not end until Zanetti had left
the restaurant with the property. (People v. Hodges (2013) 213 Cal.App.4th 531, 540;
People v. Brito, supra, 232 Cal.App.3d at p. 326, fn. 8.) That the phone belonged to Lad
10
and the money belonged to the restaurant did not make this two robberies. As in
Marquez, where the robber took the employee's tips and the restaurant's earnings, this
was one indivisible robbery of the same victim.
In light of the above, we shall strike Zanetti's conviction on count 3, as well as the
criminal assessment fee and the court security fee, and direct the trial court to amend the
abstract to reflect that modification. Our resolution of this issue renders Zanetti's
Zanetti contends insufficient evidence supports his count 2 conviction because
Aguiar's eyewitness identification was inconsistent and unreliable, and Ahmed based his
description in part on information that Aguiar had relayed to him.
A. Background
Aguiar testified that during the robbery he briefly glanced at Zanetti's face and saw
Zanetti remove his hood in the back room. Aguiar described the robber as "five-seven,
Hispanic, kind of medium-build" male with facial hair and a receding hairline. Aguiar
told police on the night of the robbery that he could not identify the robber and did not
tell the police he saw Zanetti without his hood; however, he testified that he was nervous
and scared when he talked to the police. Aguiar nonetheless identified Zanetti in a
photographic lineup. He also identified a nylon holster found in Zanetti's residence. At
trial, Aguiar reviewed photographs of the gun found in Zanetti's home and concluded it
11
was the gun used in the robbery. Aguiar identified Zanetti at the preliminary hearing and
at trial. During Aguiar's testimony, the jury saw surveillance footage of the robbery.
Ahmed testified that during the robbery he had difficulty seeing Zanetti's face
apart from his chin, but described Zanetti to the police as a "Hispanic male, between 30
and 35 years with a medium build and a mustache" based on his memory of Zanetti's chin
and information Aguiar gave him. Although Ahmed told a police detective he only saw
Zanetti briefly and partially, Ahmed identified Zanetti during the photographic lineup
based on Zanetti's "pointy" chin that lacked a dimple. Ahmed was not "100 percent
confident" because he selected Zanetti's photograph by process of elimination; however,
he testified that Zanetti's photograph most resembled the suspect. Ahmed was
"absolutely positive" Zanetti did not remove his hood, and he could not identify Zanetti at
trial.
Defense expert research psychologist Kathy Pezdek testified about the accuracy of
eyewitness memory and identification, identifying various factors affecting eyewitness
identification: the length of time the eyewitness looked at the suspect's face, the tendency
for an eyewitness to focus his or her attention on the suspect's weapon, the eyewitness's
stress level, and the suspect's use of a disguise.
B. Legal Principles
As we have explained, when sufficiency of the evidence is challenged on appeal,
our role in reviewing the evidence is limited. We do not reweigh the evidence and
substitute our judgment for that of the jury. (People v. Escobar (1996) 45 Cal.App.4th
477, 481.) Instead, we determine whether any rational trier of fact could find the
12
defendant guilty beyond a reasonable doubt. (People v. Jones (1990) 51 Cal.3d 294,
314.) This court's authority begins and ends with a determination of whether any
substantial evidence, disputed or not, supports the verdict; thus, when the record discloses
substantial evidence—that is reasonable, credible and of solid value—we accord due
deference to the trier of fact. (Id. at p. 314.) " '[T]he relevant question is whether, after
viewing the evidence in the light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime beyond a reasonable doubt.'
[Citations.] '[I]t is the jury, not the appellate court[,] which must be convinced of the
defendant's guilt beyond a reasonable doubt.' " (People v. Lewis (2009) 46 Cal.4th 1255,
1289-1290, fn. omitted.)
A single eyewitness's identification of a suspect as the perpetrator of a crime is
sufficient to sustain a conviction. (People v. Boyer (2006) 38 Cal.4th 412, 480.)
"Moreover, a testifying witness's out-of-court identification is probative for that purpose
and can, by itself, be sufficient evidence of the defendant's guilt even if the witness does
not confirm it in court." (Ibid.) "The strength or weakness of the identification . . . and
the qualification of identity and lack of positiveness in testimony are matters which go to
the weight of the evidence and the credibility of the witnesses, and are for the observation
and consideration, and directed solely to the attention of the jury in the first instance[.]"
(People v. Lindsay (1964) 227 Cal.App.2d 482, 494.)
In discussing an out-of-court identification, the California Supreme Court in
People v. Boyer, supra, 38 Cal.4th at p. 481, noted that the defendant's counsel had a full
opportunity to cross-examine the witness about the certainty of her photo identification
13
and about all aspects of the identification process, which included occasions in which she
identified others as the perpetrator. The court concluded that under these circumstances,
it was for the jury to evaluate the credibility of the witness's identification and the weight
her testimony deserved. (Ibid.)
In People v. Mohamed (2011) 201 Cal.App.4th 515, the prosecution introduced
the testimony and curbside identifications of a robbery victim and an eyewitness to a
restaurant robbery. (Id. at pp. 517-518.) The victim said that the defendant wore a mask
in a way that left the bottom of his face visible, allowing her to see the shape of his
jawline, nose, and mouth. (Id. at pp. 517-518.) During her curbside identification of the
suspect, the victim told the police she was "80 percent sure" the defendant was the robber
based on his clothing, facial features, and build. (Id. at p. 519.) She also identified the
defendant at the preliminary hearing and at trial. (Id. at pp. 519, 521.) The witness at the
restaurant based his curbside identification on the defendant's clothes, and despite some
doubt, he was confident about his identification. (Id. at p. 519.) Both the victim and the
witness missed details about the defendant's outfit and possessions, but their description
of the defendant's physical appearance closely matched. (Id. at pp. 518-519, 522.) At
trial, defense counsel introduced expert testimony on variables affecting eyewitness
identification. (Id. at p. 520.) This court held sufficient evidence supported the
defendant's conviction despite the victim's uncertainty or the fact that neither the victim
nor the witness saw the defendant's entire face. (Id. at p. 522.) Additionally, the
discrepancies between the witnesses' observations and their omission of certain
information from their initial descriptions of the defendant "did not necessitate the jury's
14
rejection of their identifications." (Ibid.) Finally, the jury was not obligated to accept the
expert witness's testimony or find it applicable to the case. (Ibid.)
Defense counsel cross-examined Aguiar about his statement to the police, whether
Zanetti removed the hood of his sweatshirt, and Aguiar's identification of Zanetti at the
photographic lineup. The jury was entitled to believe Aguiar's testimony that he saw
Zanetti's facial hair and receding hairline when he glanced at Zanetti or saw Zanetti
remove the hood of his sweatshirt. (See People v. Boyer, supra, 38 Cal.4th at p. 481.)
Because Ahmed based part of his description of the suspect on what Aguiar told him, the
jury in evaluating Ahmed's testimony could reasonably conclude Aguiar's testimony was
credible.
Even if the jury concluded Aguiar mistakenly believed Zanetti removed his hood
and neither employee clearly saw Zanetti's face, substantial evidence supports the
conviction. (People v. Mohamed, supra, 201 Cal.App.4th at p. 522 [the fact that
witnesses did not see the suspect's face "does not preclude the existence of sufficient
support for the jury's verdict"].) Ahmed testified on his observation of Zanetti's "pointy"
chin as a basis for identifying Zanetti at the photographic lineup. The fact Ahmed was
not "100 percent" certain of his identification alone does not preclude a conclusion that
sufficient evidence supported the conviction. (People v. Mohamed, supra, 201
Cal.App.4th at p. 522.) Moreover, the surveillance footage corroborated Aguiar's
recollection of the robbery and description of the suspect. The handgun and holster were
recovered from Zanetti's home. Both employees identified Zanetti in photographic
lineups, and Aguiar identified Zanetti at the preliminary hearing and at trial.
15
The jury was entitled to reject Dr. Pezdek's testimony based on its instruction with
CALCRIM No. 332: "Witnesses were allowed to testify as experts and to give opinions.
You must consider the opinions, but you are not required to accept them as true or
correct. The meaning and importance of any opinion are for you to decide." Under all
the circumstances, we conclude substantial evidence supports Zanetti's count 2
conviction.
III.
Zanetti's Sentence Is Not Cruel and Unusual
Zanetti contends his 225 years-to-life sentence is functionally equivalent to life in
prison without parole because he will be unable to serve his sentence within his natural
life expectancy; therefore, it is cruel and unusual punishment under the state and federal
Constitutions. He argues the 2012 robberies did not involve homicide or physical injury
but were motivated by his drug addiction.
A. Background
Zanetti admitted that in June 1990, he suffered strike convictions for second
degree robbery, assault with a firearm (§ 245, subd. (a)(2)), and firing at an inhabited
dwelling (§ 246). Zanetti also admitted that in 2004, he suffered a strike or serious felony
conviction for first degree residential burglary. (§ 459.) The trial court denied Zanetti's
motion to strike certain strike priors under People v. Superior Court (Romero) (1996) 13
Cal.4th 497. At sentencing, the People stated Zanetti violated parole in 2007 by selling
narcotics. Zanetti was also deported from the United States three times, and defense
16
counsel asserted Zanetti re-entered the country each time to address his drug addiction
and provide for his family. Zanetti was 45 years old when he was sentenced in this case.
B. Legal Principles
The People argue Zanetti forfeited this contention by failing to raise it at the
sentencing hearing. (People v. Russell (2010) 187 Cal.App.4th 981, 993.) We address
the merits. (People v. Norman (2003) 109 Cal.App.4th 221, 230 ["Nonetheless, we shall
reach the merits under the relevant constitutional standards, in the interest of judicial
economy to prevent the inevitable ineffectiveness-of-counsel claim"]; see also People v.
Martinez (1999) 76 Cal.App.4th 489, 496.) We review de novo whether punishment is
cruel and unusual, viewing the underlying facts in the light most favorable to the
judgment. (People v. Mantanez (2002) 98 Cal.App.4th 354, 358.)
The Eighth Amendment's ban on cruel and unusual punishment prohibits
imposition of a sentence that is grossly disproportionate to the severity of the crime.
(Ewing v. California (2003) 538 U.S. 11, 20-21 (Ewing).) In Graham v. Florida (2010)
560 U.S. 48, the United States Supreme Court recognized that punishment prohibited as
unconstitutionally disproportionate to the offense generally fall into two classifications:
those which are categorically prohibited, and those which are prohibited based on the
facts of a particular case. (Id. at p. 59.)
To determine whether a particular sentence is so grossly disproportionate that it
violates the federal Constitution, the court considers all the circumstances of the case,
including the gravity of the offense and the severity of the penalty as well as whether
more serious crimes are subject to the same penalty in other jurisdictions. (Solem v.
17
Helm (1983) 463 U.S. 277, 292.) No single criterion is dispositive. (Id. at p. 291, fn. 17.)
" '[[O]utside] the context of capital punishment, successful challenges to the
proportionality of particular sentences [will be] exceedingly rare.' " (Id. at p. 290,
quoting Rummel v. Estelle (1980) 445 U.S. 263, 272.) Still, although deference is given
to the Legislature's prescribed sentence for a particular crime (Solem v. Helm, at p. 290),
no penalty is per se constitutional. (Ibid.)
When punishment is imposed under the Three Strikes scheme, the defendant is not
being punished merely for the most recent offense, but also for recidivism. (People v.
Mantanez, supra, 98 Cal.App.4th at p. 366.) Thus, extended punishment under the Three
Strikes law can justifiably be imposed on defendants who repeatedly commit felonies
without running afoul of the constitutional proscription against cruel and unusual
punishment. (Ewing, supra, 538 U.S. at pp. 29-30; see Lockyer v. Andrade (2003) 538
U.S. 63, 70-77.) However, a defendant may prevail on a cruel and unusual punishment
challenge if the "current offense bears little indication [the defendant] has recidivist
tendencies to commit offenses that pose a risk of harm to the public." (People v.
Carmony (2005) 127 Cal.App.4th 1066, 1080; see In re Coley (2012) 55 Cal.4th 524,
562.)
Similarly, under state law Zanetti must overcome a "considerable burden" in
challenging his penalty as cruel or unusual. (People v. Wingo (1975) 14 Cal.3d 169,
174.) He must demonstrate the punishment is so disproportionate to the crime for which
it was imposed it "shocks the conscience and offends fundamental notions of human
dignity." (In re Lynch (1972) 8 Cal.3d 410, 424 (Lynch); accord, People v. Dillon (1983)
18
34 Cal.3d 441, 478, disapproved on other grounds in People v. Chun (2009) 45 Cal.4th
1172, 1185-1186.) The Lynch court identified three factors for the reviewing court to
consider in assessing this constitutional claim: (1) the nature of the offense and the
offender; (2) how the punishment compares with punishments for more serious crimes in
the jurisdiction; and (3) how the punishment compares with the punishment for the same
offense in other jurisdictions. (Lynch, supra, 8 Cal.3d at pp. 425-427.)
To evaluate whether a particular punishment is cruel or unusual, courts examine
the nature of the offense and of the offender, " 'with particular regard to the degree of
danger both present to society.' " (People v. Dillon, supra, 34 Cal.3d at p. 479.) In
assessing the nature of the offense, a court should consider the circumstance of the
particular offense such as the defendant's motive, the way the crime was committed, the
extent of his involvement, and the consequences of his acts. (Ibid.) In analyzing the
nature of the offender, a court should consider his "age, prior criminality, personal
characteristics, and state of mind." (Ibid.) "[A] punishment which is not disproportionate
in the abstract is nevertheless constitutionally impermissible if it is disproportionate to the
defendant's individual culpability." (Id. at p. 480.) In addition to the nature of the current
offense, "recidivism is a legitimate factor to consider when imposing a greater sentence
than for a first time offense." (People v. Cuevas (2001) 89 Cal.App.4th 689, 704.)
"Recidivism in the commission of multiple felonies poses a danger to society justifying
the imposition of longer sentences for subsequent offenses." (People v. Cooper (1996)
43 Cal.App.4th 815, 823-824.)
19
In Ewing, supra, 538 U.S. at pages 18, 20, the United States Supreme Court
affirmed the defendant's to 25-years-to-life sentence under California's Three Strikes law
for stealing three golf clubs, as a grand theft with a prior theft conviction. His criminal
history included theft-based convictions, battery, burglary, possessing drug paraphernalia,
appropriating lost property, possessing a firearm, and trespassing. (Id. at p. 18.) In
rejecting the defendant's cruel and unusual punishment challenge, Justice O'Connor,
writing for a plurality, found the sentence was "not grossly disproportionate" (id. at p.
30), stating: "In weighing the gravity of Ewing's offense, we must place on the scales not
only his current felony, but also his long history of felony recidivism. Any other
approach would fail to accord proper deference to the policy judgments that find
expression in the legislature's choice of sanctions. . . . To give full effect to the State's
choice of this legitimate penological goal, our proportionality review of Ewing's sentence
must take that goal into account." (Id. at p. 29.)
In Lockyear v. Andrade (2003) 538 U.S. 63, 66, the defendant stole five
videotapes worth $84.70 from a store and, two weeks later, stole four videotapes worth
$68.84 from another store. He was convicted of two counts of petty theft with a prior
conviction, and sentenced under the Three Strikes law to two consecutive 25-year-to-life
terms. (Id. at pp. 67-68.) His criminal history consisted primarily of theft, burglary and
drug convictions. (Id. at pp. 66-67.) After a California appellate court held the sentence
did not violate the Eighth Amendment, the United States Supreme Court held the
defendant was not entitled to federal habeas relief because the California court's
application of the "gross disproportionality principle" was not unreasonable. (Lockyear,
20
supra, at p. 77.) The court stated that the gross disproportionality rule "reserves a
constitutional violation for only the extraordinary case." (Ibid.)
C. Analysis
Zanetti's sentence is not cruel and unusual under the federal Constitution because
it was properly based on his recidivist conduct. The Three Strikes law was "devised for
the 'revolving door' career criminal, and was expressly intended 'to ensure longer prison
sentences' " for individuals who commit qualifying second and third strikes. (People v.
Strong (2001) 87 Cal.App.4th 328, 331-332, fn. omitted; People v. Gaston (1999) 74
Cal.App.4th 310, 320.) When Zanetti was convicted of first degree residential burglary
in 2004, he had already suffered prior strike convictions, including a second degree
robbery conviction, but he avoided sentencing under the Three Strikes law. Nevertheless,
Zanetti continued his criminal behavior by violating parole three years later. His present
conviction for six counts of second degree robbery is the second case in which he has
been convicted of that offense. Similarly, his prior serious conviction for assault with a
firearm did not prevent him from using a firearm in the 2012 robberies. We therefore
conclude application of the Three Strikes law is proper here. (See, e.g., People v.
Romero (2002) 99 Cal.App.4th 1418, 1433 [" ' "Because the Legislature may
constitutionally enact statutes imposing more severe punishment for habitual criminals, it
is illogical to compare [defendant's] 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." ' "].)
21
Zanetti's sentence is not grossly disproportionate in relation to the nature and
gravity of the offenses. In a six-day crime spree, Zanetti robbed three businesses and
multiple victims, each time threatening the victims with a firearm. Zanetti wore different
clothes and concealed his face, indicating planning and sophistication. That Zanetti did
not physically injure the victims is not dispositive because robbery is an inherently
violent and serious felony. (§§ 667, subd. (d)(1), 667.5, subd. (c)(9); see also People v.
Brito, supra, 232 Cal.App.3d at p. 321; People v. Terrill (1979) 98 Cal.App.3d 291, 305
[armed robbery is an inherently dangerous felony for the purposes of the felony murder
rule].)
Zanetti's history of drug addiction does not make his sentence grossly
disproportionate. "[D]rug addiction is not necessarily regarded as a mitigating factor
when a criminal defendant has a long-term problem and seems unwilling to pursue
treatment." (People v. Martinez (1999) 71 Cal.App.4th 1502, 1511.) "As a policy
matter, when a defendant has a drug addiction or substance abuse problem, where the
defendant has failed to deal with the problem despite repeated opportunities, where the
defendant shows little or no motivation to change his life style, and where the substance
abuse problem is a substantial factor in the commission of crimes, the need to protect the
public from further crimes by that individual suggests that a longer sentence should be
imposed, not a shorter sentence." (People v. Reyes (1987) 195 Cal.App.3d 957, 963.)
Here, in light of Zanetti's continued drug use and criminal acts spanning many years
when he was not in prison, the trial court was entitled to regard as self-serving Zanetti's
22
claims that he reentered the United States to seek treatment and took his drug treatment
seriously.
We reach the same conclusion under the California Constitution. (Cal. Const., art.
I, § 17.) Although some courts have interpreted the state and federal Constitutions'
provisions slightly differently, the analysis is materially similar. (See People v.
Mantanez, supra, 98 Cal.App.4th at p. 358, fn. 7; see also People v. Cunningham (2015)
61 Cal.4th 609, 670-671; People v. Cole (2004) 33 Cal.4th 1158, 1235.) Both
Constitutions bar punishment that is "grossly disproportionate" to the crime or the
individual culpability of the defendant. (Solem v. Helm, supra, 463 U.S. at p. 288;
People v. Dillon, supra, 34 Cal.3d at p. 450, 478, fn. 25.) Under both constitutional
prohibitions, the court considers the nature of the offense and the defendant, the
punishment for more serious offenses within the jurisdiction, and the punishment for
similar offenses in other jurisdictions. (Solem v. Helm, supra, 463 U.S. at pp. 290-291;
Lynch, supra, 8 Cal.3d at pp. 425, 431, 436.) For the reasons discussed above, Zanetti
has failed to meet his burden of establishing that his punishment was cruel and/or
unusual. (People v. King (1993) 16 Cal.App.4th 567, 572.) We conclude that, under
either the state or federal Constitutions, Zanetti's 225-years-to-life sentence was not "so
disproportionate to the crime for which it is inflicted that it shocks the conscience and
offends fundamental notions of human dignity." (Lynch, supra, 8 Cal.3d at p. 424.)
23
IV.
The Abstract of Judgment Must Be Amended
The trial court sentenced Zanetti on count 4 to a consecutive term of 20 years plus
25 years to life, but the sentencing minute order and the abstract of judgment reflect a
sentence of 20 years and two months plus 25 years to life. The 20-year determinate
sentences on each count consisted of a 10-year term for the firearm use enhancement
under section 12022.53, subdivision (b), and two five-year consecutive terms for Zanetti's
two prior serious felony convictions under section 667, subdivision (a). However, the
sentencing minute order and abstract of judgment do not reflect the correct breakdown of
the sentence regarding the prior serious felony convictions.
Zanetti contends the sentencing minute order and abstract of judgment should be
amended to reflect the oral pronouncement of judgment. The People concede the point,
and we agree. The abstract of judgment is not itself the judgment of conviction, and
cannot prevail over the court's oral pronouncement of judgment to the extent the two
conflict. (See People v. Mitchell (2001) 26 Cal.4th 181, 185.)
24
DISPOSITION
We strike Adrian Enrique Zanetti's conviction on count 3 and the fees imposed on
that count. In all other respects we affirm the judgment. We direct the trial court to
amend the abstract of judgment to reflect those changes and the fact that the sentence
imposed on count 4 is 20 years plus 25 years to life, and that two five-year consecutive
sentences for two prior serious felony convictions under Penal Code section 667,
subdivision (a) are to be served on each count. The trial court shall forward a certified
copy of the amended abstract of judgment to the Department of Corrections and
Rehabilitation.
O'ROURKE, J.
WE CONCUR:
BENKE, Acting P. J.
McDONALD, J.
25
AI Brief
AI-generated · verify before citing
Holding. The court held that the defendant could not be convicted of two separate robberies for taking multiple items from a single victim during an indivisible transaction, requiring the reversal of one robbery count. The court otherwise affirmed the judgment, finding sufficient evidence for the remaining convictions and rejecting the defendant's cruel and unusual punishment claim.
Issues
Whether a defendant can be convicted of two separate robberies for taking a phone and cash from the same victim during a single continuous course of conduct.
Whether sufficient evidence supports the defendant's robbery conviction based on eyewitness identification.
Whether a 225-years-to-life sentence under the Three Strikes law constitutes cruel and unusual punishment.
Disposition. Affirmed in part, reversed in part, and remanded.
Quotations verified verbatim against the opinion
“In these circumstances the single larceny can only support a single count of robbery.”
“Finding merit in Zanetti's first and fourth contentions, we will strike the count 3 conviction and otherwise affirm the judgment.”