by Douglas Ankney

The Court of Appeal of California, Second Appellate District, held that a trial court abused its discretion by denying Rene Avila’s motion to strike prior convictions pursuant to People v. Superior Court (Romero), 917 P.2d 628 (Cal. 1996), (“Romero Motion”). The Court further held that a sentence of 25 years to life plus 14 years for attempted robbery and attempted extortion violated the California Constitution’s proscription against cruel and unusual punishment.

On separate occasions, Avila approached two vendors selling fruit near a freeway off-ramp and told the men they had to pay him $100 to rent the space. Avila stomped several bags of their oranges and left. A jury convicted him of attempted second-degree robbery and attempted extortion.

Prior to sentencing, Avila filed a Romero Motion seeking to strike his prior convictions. Supporting his motion, he argued his only violent crimes were remote in time. In 1990, the then 18-year-old Avila was convicted of second-degree robbery and assault with a knife (the victim’s arm was cut when he put his hands up during the robbery). In 1992, Avila was convicted of another second-degree robbery.

While on parole, Avila was convicted of unlawful sexual intercourse with a minor. The girl’s mother consented to the relationship. He later married the girl, and the couple had a child together.

In 2005 and 2008, Avila was convicted of drug possession. But those offenses were now considered misdemeanors.

The trial judge recognized that the robbery and assault convictions were remote in time but stated he was “not quite sure how that coincides with this [case].” The trial court observed Avila had been to prison after those convictions based on sex with a minor and drug possession. The judge then found that Avila committed his current crimes in a “violent” and “brutal” way; that “[h]is acts really amounted to thuggery;” and speculated “who knows what would have happened” if police had not been called. The trial court denied the Romero Motion and sentenced Avila under California’s “Three Strikes” law. Avila argued on appeal that the trial court abused its discretion by denying his Romero Motion.

The Court of Appeal observed that the purpose of the Three Strikes law is to punish recidivists more harshly. People v. Davis, 938 P.2d 938 (Cal. 1997). But because not all recidivists fall within the spirit of that law, a trial judge may strike or dismiss prior convictions in the furtherance of justice. Romero. To make this determination, the court should consider the nature and circumstances of the defendant’s present felonies; the defendant’s prior serious or violent felony convictions; and the particulars of the defendant’s background, character, and prospects. People v. Williams, 948 P.2d 429 (Cal. 1998).

Remoteness of prior convictions is a mitigating factor. People v. Strong, 87 Cal. App. 4th 328 (2001). Cumulative circumstances, including that a defendant’s crimes were related to drug addiction and that the defendant’s criminal history does not include actual violence, may show that a defendant is outside the spirit of the law. People v. Garcia, 976 P.2d 831 (Cal. 1999). The length of a sentence is the “overarching consideration” because avoidance of an unjust sentence is the underlying purpose of striking a prior conviction. Id. Additionally, persons aged 25 and under are “youth offenders,” Penal Code § 3051(a)(1), who are constitutionally different from adults for sentencing purposes because of their diminished culpability and greater prospects for reform. In re Jenson, 24 Cal. App. 5th 266 (2018). Attempted robbery is a serious crime but not a violent one. Penal Code § 1192.7(c)(19) & (39). Attempted extortion is neither violent nor serious. Penal Code §§667.5(c) and 1192.7(c).

The Court of Appeal stated that in characterizing Avila’s crimes as violent, the trial court misapprehended their nature. Avila did not use a weapon or physical violence. He demanded money, stomped bags of oranges, and then left. In sentencing, a trial court is to focus on what actually occurred, not speculate on what might have happened. The trial court also failed to recognize that the remoteness of Avila’s only prior violent crimes was a mitigating factor. And his criminal history after those convictions included neither serious nor violent crimes. Further, the trial court failed to consider that the prior violent crimes were committed when Avila was under 21 because the court had erroneously believed that this fact was irrelevant. Finally, Avila was 47 years old when sentenced on the current offenses, so the three-strikes sentence meant he would most likely die in prison: such a sentence for attempted robbery and attempted extortion is unjust. As such, the Court explained he wasn’t a defendant whose continuous life of crime counteracted the extreme remoteness of his priors. People v. Humphrey, 58 Cal.App.4th 809 (1997). Thus, the Court concluded that the trial court abused its discretion when denying Avila’s Romero Motion.

The Court further determined that Avila’s sentence was cruel or unusual punishment under article I, section 17 of the California Constitution because it was “so disproportionate to the crime for which it [wa]s inflicted that it shock[ed] the conscience and offend[ed] fundamental notions of human dignity.” In re Lynch, 503 P.2d 921 (Cal. 1972).

In making this determination, courts are required to: (1) examine the nature of the offense and the offender with particular regard to the degree of danger presented to society, (2) compare the challenged penalty with punishments for more serious offenses in California, and (3) compare the challenged penalty with the punishments prescribed for the same offense in other states. Id. Disproportionality need not be established in all three areas. People v. Dillon, 668 P.2d 697 (Cal. 1983).

Regarding Lynch factor (1), courts examine the nature of the offense in the abstract as well as the facts of the crime in question. Id. However, the nature of the defendant is examined in the concrete and includes his age, prior criminality, personal characteristics, and state of mind. Id. Even when a defendant is a recidivist, the ultimate punishment cannot be disproportionate to the crime. People v. Mantanez, 98 Cal. App. 4th 354 (2002).
“[T]he current offense must bear the weight of the recidivist penalty imposed.” People v. Carmony, 127 Cal. App. 4th 1066 (2005). Degree of danger is measured by “rational gradations of culpability that can be made on the basis of the injury to the victim or to society in general.” In re Foss, 519 P.2d 1073 (Cal. 1974).

Crimes such as indecent exposure cause harm that is minimal at most and are not a “sufficiently grave danger to society to warrant the heavy punishment of a life-maximum sentence.” Lynch. Likewise, gradations of culpability regarding prior convictions must be accounted for when imposing a sentence. In re Grant, 553 P.2d 590 (Cal. 1976).

As to Lynch factors (2) and (3), the Court determined that there aren’t any laws in other states comparable to California’s Three Strikes law because “California’s law has been among the ‘most extreme.’” People v. Sullivan, 151 Cal. App. 4th 524 (2007). The Court noted the significant amendments to the law. At first, the law permitted a minimum sentence of 25 years to life for any third felony conviction if the defendant had at least two prior violent or serious felony convictions. People v. Johnson, 352 P.3d 366 (Cal. 2015). Voters repudiated that when passing Proposition 36, which amended the law to allow “life sentences for dangerous criminals like rapists, murderers, and child molesters.” The third felony must now be serious or violent.

In the instant case, the Court reasoned that while attempting to force vendors to pay rent for a public space was an affront to society, the harm Avila’s victims suffered was arguably less than that caused by indecent exposure. Neither of his current offenses was violent. Therefore, those offenses alone did not justify a life sentence.

As to the prior offenses, they also failed to justify the sentence, i.e., the only violent crimes were committed almost 30 years ago before Avila was 21 years old. In concluding that the sentences were unconstitutional, the Court, while recognizing that lengthy sentences like the one imposed upon Avila were once “common,” opined “[l]ife in prison for destroying fruit, even when done by someone with a criminal record in the course of an attempted robbery, robs recidivist sentencing of its moral foundation and renders the solemn exercise of judicial authority devoid of meaning. There comes a time when the people who populate the justice system must take a fresh look at old habits and the profound consequences they have in undermining our institutional credibility and public confidence.”

Accordingly, the Court vacated the sentence and remanded for resentencing with directions to the trial court to strike two of Avila’s prior strike convictions and to reconsider his sentence in light of the views expressed in the Court’s opinion. See: People v. Avila, 57 Cal. App. 5th 1134 (2020).

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