People v. JohnsonPeople v. Johnson
- Reporters:
- , ,
- Before:
- Richli, Ramirez, McKinster
Michael B. McPartland, under appointment by the Court of Appeal, for Defendant and Appellant.
One SUV rear-ended another SUV that had stopped at a red light. All five occupants of the vehicle that was hit were injured, to varying degrees; one was crippled.
When the police arrived, they found defendant Lionel Fredrick Johnson, Jr. at the scene, blatantly drunk. He admitted that he had been driving and that he hit the other vehicle.
As no eyewitness could identify defendant as the driver, however, defense counsel argued that there was reasonable doubt as to whether defendant was driving. He also argued that defendant‘s admissions were not credible because “drunk people say crazy things all the time.”
After the trial, defendant filed a motion for disclosure of the jurors’ identifying information. In support, his parents testified that several jurors had stated that they had concluded only reluctantly that defendant had been driving, partly because he did not take the stand and testify. The trial court denied the motion. In the published portion of this opinion, we will hold that this was error. We will reject the People‘s arguments that (1) the jurors’ statements were inadmissible hearsay, (2) the jurors’ statements were inadmissible under
Accordingly, the matter must be remanded with directions to reconsider defendant‘s motion. However, if (1) the motion is once again denied, (2) the motion is granted but defendant fails to file a motion for new trial, or (3) defendant files a motion for new trial but the motion for new trial is denied, the trial court must resentence defendant.
I
FACTUAL BACKGROUND
On August 17, 2009, around 2:10 or 2:20 a.m., a 4Runner was stopped at a red light when a Suburban rear-ended it. There was no sound of braking or skidding before the crash. No skid marks were left on the road.
Five people — all members of the same family — were in the vehicle that was hit. Petra Farias, who was in the back seat, had the most severe injuries. Her left leg was jammed under the front passenger seat. Her pelvis was broken. Her leg was broken “in several pieces.” Her knee was “shattered.” At the time of trial, she could not move her left foot. She could walk only with a walker. She could no longer work. She was “always in intense . . . pain.”
Petra‘s aunt, Delia Montez, who was also in the back seat, suffered a broken vertebra.
Petra‘s husband, Salvador Farias, was in the front passenger seat. He suffered a “whiplash type injury.”
Petra‘s daughter, Susana Farias, who was driving, escaped with only “big bruises” and neck and back pain. She still had back pain at the time of trial.
Witness Yorilia Beltran happened to drive onto the scene of the crash moments after it occurred. An African-American man was inside the Suburban. She asked him if there was anyone else in the Suburban, and he said no. Later, she saw a police officer approach him.
Highway Patrol officers arrived at the scene around 2:45 a.m. Defendant was there, and Officer Gabriel Lizaola interviewed him. Defendant admitted driving the Suburban. He said he was going 60 or 65 miles an hour when he suddenly “felt a boom to the front of his vehicle.” The speed limit was 55 miles an hour.
Officer Lizaola noticed that defendant‘s breath smelled of alcohol, his speech was slurred, and his eyes were red and watery. He asked defendant if he had “consumed an alcoholic beverage.” Defendant replied, “I haven‘t had shit.” Officer Lizaola pointed out that “[he] could smell the odor of an alcoholic beverage emitting from [defendant‘s] person.” Defendant said, “Okay. I had two beers at 6:00.”
A blood test, using blood drawn at 5:03 a.m., gave a blood alcohol reading of 0.20.
In the opinion of an expert toxicologist, defendant‘s actual blood alcohol level at the time of the crash was 0.24.
II
PROCEDURAL BACKGROUND
Defendant was found guilty of driving under the influence and causing injury (
Two “strike” priors (
Defendant was sentenced to a total of 41 years to life in prison, along with the usual fines and fees.
DISCLOSURE OF JURORS’ IDENTIFYING INFORMATION
Defendant contends that the trial court erred by denying his posttrial motion for disclosure of jurors’ identifying information.
A. Additional Factual and Procedural Background.
On March 15, 2011, the jury returned its verdicts. At that point, defendant had not waived a jury trial on the priors, so the jurors were ordered to return on March 16. On March 16, however, defendant decided to waive a jury trial, and the trial court excused the jurors.
The court trial on the priors, originally set for May 13, 2011, was repeatedly continued until it was eventually held on November 18, 2011. Sentencing, originally set for January 27, 2012, was likewise repeatedly continued.
On April 26, 2012, defendant filed a motion for release of jurors’ personal identifying information. The motion was set for hearing on the date then set for sentencing, May 25, 2012.
On April 26, 2012, defendant filed a motion for release of jurors’ identifying information. Defendant‘s mother and stepfather, Joy and Delvin Livingston, submitted declarations in support of the motion.
According to defendant‘s mother, the conversation took place outside the courtroom. The crying juror said, “[W]hy didn‘t he take the witness stand and defend himself[?] Why didn‘t he say something, we need to hear it from him. Did he have any prior DUIs . . . ? Is that the reason why he didn‘t take the witness stand?” The mother and stepfather then took the crying juror to defense counsel, introduced her, and told him what she had said. Defense counsel gave the crying juror his card and asked her to call him.
According to defendant‘s stepfather, the conversation took place inside the courtroom. Two jurors said “that i[t] was hard for us to vote guilty” because of the possibility that defendant “was covering for someone else.” The crying juror said, “[M]ost of [us] were thinking . . . if [defendant] was not the driver, why didn‘t he take the stand to defend himself . . . [?]” She added that this was one of the “things the jurors had a hard time with.” She continued, “[T]he jury wrestled with . . . why isn‘t [defendant] taking the stand[?] [Defendant] needed to say something.” “The three jurors indicated that they were at least half of the jurors who raised the question if he is innocent why he
On May 25, 2012, at the hearing on defendant‘s motion, the prosecutor conceded, “[A]ssuming the facts as stated in the motion are correct, I believe there is good cause to disclose the juror information.” However, he objected to defendant‘s parents testifying by declaration rather than in person. He also argued that the passage of time called into question the credibility of the declarations: “[A] year and three months ago, both parents are here, the jurors are telling them that they disobeyed the Court‘s rules . . . . [T]hey disclose this to [defense counsel], who, for a year and three months, did nothing. [¶] . . . I believe that if a situation like this would have occurred, [defense counsel] would have acted with a little more haste rather than letting his client wallow in county jail for a year and three months.”
Defense counsel responded that the motion was properly brought based on declarations, but in any event, “The [parents] are here. . . . [T]hey are available.”
He also explained: “I do recall that there were jurors that did . . . speak to me. I was . . . speaking with the parents. Some jurors did stay. How the issue came up, is that the parents w[ere] speaking to someone else . . . who[‘s] a lawyer, and then that particular attorney told the parents that they need to disclose that information to me, so they did so. Then I did . . . file the motion.”
The trial court ruled: “I‘ve read the declarations, and I disagree with both of you. If [sic] the declaration of [defendant‘s stepfather], first, one of the jurors says she was
“And going through ― just going through the declaration [it] said [defendant] . . . may not have been the driver. It was possible that he was covering for someone else. That is just talking about the procedure that they went through, getting to the fact — getting to the point where they voted guilty.
“I just don‘t see any reason to grant this motion. I‘m going to deny it.”
Meanwhile, the trial court also further continued the sentencing hearing to July 13, 2012.
B. Analysis.
1. Legal background.
Under
If none of the jurors object, the trial court must grant disclosure. However, if a juror is unwilling to be contacted, the trial court must deny disclosure. (
We review an order on a motion for disclosure of jurors’ identifying information under the deferential abuse of discretion standard. (People v. Carrasco (2008) 163 Cal.App.4th 978, 991.)
2. Hearsay in the declarations.
The prosecution‘s objection below to proceeding on declarations was unfounded. Under
In this respect, a motion for the disclosure of jurors’ identifying information is analogous to a Pitchess motion for disclosure of a police officer‘s confidential personnel records. A Pitchess motion can be based on a declaration made on information and belief — i.e., hearsay. (City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 86-89.) As the Supreme Court has explained: “‘“‘Whenever the statute, either in express terms or by
A juror‘s out-of-court statement that misconduct occurred, when offered in support of a motion for disclosure, is not offered for the truth of the matter asserted; thus it is not hearsay. It is simply used to show good cause to contact the juror. Once the juror is contacted, if the juror confirms the misconduct, the juror‘s testimony can be used to support a motion for new trial. On the other hand, if the juror denies the misconduct, the out-of-court statement becomes admissible as a prior inconsistent statement. (
3. Evidence Code section 1150.
The People also argue that the jurors’ statements were inadmissible under
“‘This statute distinguishes “between proof of overt acts, objectively ascertainable, and proof of the subjective reasoning processes of the individual juror, which can be neither corroborated nor disproved . . . .” [Citation.] “This limitation prevents one juror from upsetting a verdict of the whole jury by impugning his own or his fellow jurors’ mental processes or reasons for assent or dissent. The only improper influences that may be proved under [Evidence Code] section 1150 to impeach a verdict, therefore, are those open to sight, hearing, and the other senses and thus subject to corroboration.” [Citations.]’ [Citation.]” (People v. Gonzales (2012) 54 Cal.4th 1234, 1281.)
”
Here, defendant‘s mother‘s declaration was entirely irrelevant under
Portions of defendant‘s stepfather‘s declaration were likewise irrelevant under
One statement in the stepfather‘s declaration, however, was relevant and admissible — the statement that “at least half of the jurors . . . raised the question if he is innocent why he didn‘t take the stand to defend himself.” The jury had been instructed: “A defendant has an absolute constitutional right not to testify. . . . Do not consider, for any reason at all, the fact that the defendant did not testify.” (CALCRIM No. 355.) “[B]y violating the trial court‘s instruction not to discuss defendant‘s failure to testify, the jury committed misconduct. [Citations.]” (People v. Leonard (2007) 40 Cal.4th 1370, 1425.)
4. The trial court‘s exercise of discretion.
The trial court does not seem to have realized that the declarations showed that the jurors had improperly considered defendant‘s failure to testify. According to the trial court‘s summary of the evidence, a juror said she was “sorry,” a juror said it “was hard for us to vote guilty,” and a juror said defendant may have been “covering for someone else.” In addition, however, as already discussed, there was admissible evidence that the jurors considered defendant‘s failure to testify, which constituted misconduct. By disregarding that evidence, the trial court abused its discretion.
The People argue that we should nevertheless sustain the denial of defendant‘s motion, because defendant failed to show that he had made diligent efforts to contact the jurors by other means. To understand the law on this issue, it is necessary to examine the history of
In 1989, in People v. Rhodes (1989) 212 Cal.App.3d 541, the appellate court outlined a nonstatutory procedure for obtaining jurors’ identifying information after a criminal trial. After balancing the countervailing interests in confidentiality and in disclosure (id. at pp. 548-551), it held that “upon timely motion, counsel for a convicted defendant is entitled to the list of jurors who served in the case, including addresses and telephone numbers, if the defendant sets forth a sufficient showing to support a
In 1992, the Legislature enacted
In 1995, the Legislature amended
For a time, courts had been split with respect to whether the 1992 statutory procedure superseded Rhodes‘s nonstatutory requirement of a showing of good cause. (Compare People v. Granish (1996) 41 Cal.App.4th 1117, 1127-1129 [Fourth Dist., Div. Two] [showing of good cause required] with People v. Simms (1994) 24 Cal.App.4th 462, 467-468 [showing of good cause not required].) The 1995 amendments, however, were
In support of their claim that defendant had to show diligent efforts to contact the jurors through other means, the People cite People v. Jones (1998) 17 Cal.4th 279. Jones, however, did not involve a motion under
At oral argument, the People argued for the first time that the trial court should have denied the motion as untimely. It is important to note that this is significantly different from the argument, which they did raise in their brief, that defendant failed to show diligent efforts to contact the jurors by other means. Their reframed argument is that, even if a defendant does not have to try to contact the jurors by other means, he or she still must bring a motion for disclosure promptly after learning that grounds for such a motion exist.
Rhodes required that a motion for juror‘s identifying information be “timely.” (People v. Rhodes, supra, 212 Cal.App.3d at p. 551.) By contrast,
On appeal, the court noted that
Here, the sentencing hearing was set for May 25, 2012. Defendant filed his motion for disclosure on April 26 and set it for hearing on May 25. Meanwhile, however, he also filed a motion for a continuance of the sentencing hearing, on the ground that a “key witness” was unavailable. As already discussed, the trial court denied the motion for disclosure, but it granted the motion for a continuance; it continued the sentencing hearing to July 13. This would have given defendant time to contact the jurors and to file a motion for new trial, set for hearing on July 13. Thus, defendant did not have to show any additional good cause for a continuance. In particular, under Duran, he did not have to show due diligence in bringing the motion for disclosure. Even assuming he did not act with due diligence, he was still seeking the information for a “lawful purpose.”
Finally, we also consider whether the trial court should have denied defendant‘s motion because, as the prosecutor argued below, the declarations were not credible. Certainly there was room for skepticism. The mother and stepfather contradicted each other on several points. If one chooses to credit the mother‘s account over the stepfather‘s, then there is no admissible evidence of juror misconduct at all. Moreover, it is hard to believe that the jurors told defendant‘s parents that they wanted to talk to the judge but did not say this to defense counsel. Indeed, according to the mother, she told defense counsel what the juror had said. Even assuming this information was not
Nevertheless, “‘[t]he power to judge the credibility of witnesses and to resolve conflicts in the testimony is vested in the trial court” (People v. Hamlin (2009) 170 Cal.App.4th 1412, 1463), even when the witnesses testify via declarations. (Id. at pp. 1463-1464.) Here, the trial court denied the motion, but not because the declarations were incredible. We cannot say that the declarations were incredible as a matter of law. Thus, we cannot affirm the denial on this ground. However, it will be open to the trial court to make such a determination on remand.
5. Conclusion.
In sum, we conclude that the trial court erred. Assuming that defendant’s stepfather’s declaration was credible, defendant was entitled to disclosure of the jurors’ identifying information. However, because of our doubts regarding the credibility of both declarations, we cannot say that the motion should have been granted. Rather, the appropriate appellate remedy is to remand with directions to reconsider the motion.
On remand, if the trial court grants the motion, it shall allow defense counsel a reasonable time to try to contact the jurors, to determine whether a motion for new trial is warranted, and if so, to file a motion for new trial. However, unless a motion for new trial is not only timely filed but actually granted, the trial court shall resentence defendant.
DUAL USE OF THE INFLICTION OF GREAT BODILY INJURY
Defendant contends that the trial court could not impose both a great bodily injury enhancement and a prior serious felony enhancement.
It is self-evident that a great bodily injury enhancement under
Defendant argues, however, that a prior serious felony conviction enhancement under
Rodriguez involved
In Rodriguez, the defendant was convicted of assault with a firearm (
The Supreme Court held that the trial court erred by imposing both the personal firearm use enhancement and the gang/violent felony enhancement. (People v. Rodriguez, supra, 47 Cal.4th at p. 509.) It explained: “The standard additional punishment for committing a felony to benefit a criminal street gang is two, three, or four years’ imprisonment. [Citation.] But when the crime is a ‘violent felony . . . ,’
Gonzalez was similar, except that — like this case — it involved
In Gonzalez, the defendant was convicted of aggravated assault (
The appellate court held that the trial court erred by imposing both the great bodily injury enhancement and the gang/violent felony enhancement. It stated: “We find the Supreme Court’s reasoning in Rodriguez persuasive and squarely applicable to the present case. . . . Here, appellant’s infliction of great bodily injury on a single victim subjected him to a three-year enhancement under
The People argue that Rodriguez and Gonzalez are distinguishable because they involved a gang/violent felony enhancement, which is a conduct enhancement, whereas this case involves a prior serious felony enhancement, which is a status enhancement. This is a distinction without a difference. Nothing in the reasoning of either Rodriguez or Gonzalez turned on whether they involved conduct enhancements or status enhancements. Rather, it turned on whether both enhancements were triggered by personal firearm use (in Rodriguez) or infliction of great bodily injury (in Gonzalez). Here, defendant would not have been subject to a prior serious felony enhancement if he had not inflicted great bodily injury in the current offense. Indeed, under these circumstances, one could view the prior serious felony enhancement as a hybrid status/conduct enhancement — it applies due to the confluence of both a certain status (a prior serious felony conviction) and certain conduct (infliction of great bodily injury).4
The appropriate appellate remedy is not to strike the lesser punishment, but rather to remand for resentencing. (People v. Rodriguez, supra, 47 Cal.4th at p. 505.)
V
ROMERO MOTION
Defendant contends that the trial court erred by denying his Romero motion.
A. Additional Factual Background.
At the time of sentencing, defendant was 35 years old. Between the ages of 11 and 18, he had been a member of the North Side Gangsta Crips. He started abusing alcohol and various drugs in his teen years. However, he claimed to have been sober since being sent to prison in 2002, “except for two relapses.”
Defendant admitted drinking on the day of the accident and being drunk when it occurred. He claimed, however, that “a friend he did not wish to name” was driving. He
Defendant admitted having been on juvenile probation, though the probation officer was unable to find any record of this.
He had the following adult convictions (the two strike priors are indicated by bolding):
September 1996: Second degree robbery. (
December 1997: Driving with a blood alcohol level of 0.08 percent or more. (
May 2000: Second degree burglary (
June 2002: Driving with a blood alcohol level of 0.08 percent or more, driving with an open alcohol container (
August 2002: Possession of a controlled substance. (
November 2002: Two counts of second degree burglary and battery (
April 2003: Second degree robbery. According to defendant, he shoplifted from a Kmart; in the parking lot, a loss prevention employee confronted him, and defendant threatened the employee with a screwdriver. Defendant was sentenced to three years in prison. In September 2005, he was released on parole, but he was arrested in December
Defendant claimed that, since his release from prison in 2005, he had become “a productive and beneficial member of society.” However, he had been unemployed for nearly two years when the accident occurred. He also claimed that, up until his arrest, he was in a medical assistant vocational training program, in which he had a 3.5 GPA. His transcript, however, showed that he had withdrawn from the program before the accident.
B. Additional Procedural Background.
Defendant filed a written Romero motion. He argued that the strike priors were remote and the underlying facts were not egregious; the current offense did not involve intentional violence; he was “beyond remorseful”; and he had good prospects for the future. The motion included letters of support from his friends and family members. His mother and stepfather spoke in his support at the hearing.
The trial court denied the motion. It explained, “[H]e doesn’t accept responsibility for anything that he’s done.” It also noted that defendant had not “led a clean life” since the last strike; he had violated his parole. It concluded: “The Three Strikes law was written for cases like this where somebody gets a strike, they get another strike, and they don’t stay clean.”
C. Analysis.
In Romero, the Supreme Court held that a trial court has discretion to dismiss a three-strikes prior felony conviction allegation under
“Because the circumstances must be ‘extraordinary . . . by which a career criminal can be deemed to fall outside the spirit of the very scheme within which he squarely falls once he commits a strike as part of a long and continuous criminal record, the continuation of which the law was meant to attack’ [citation], the circumstances where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme must be even more extraordinary.” (People v. Carmony, supra, 33 Cal.4th at p. 378.)
“[A] trial court’s refusal or failure to dismiss or strike a prior conviction allegation under
We are at a loss to perceive any extraordinary circumstances in this case. Defendant is precisely the kind of revolving-door recidivist that the three strikes law was designed for. Substance abuse was clearly a major factor in causing him to commit both violent theft crimes (i.e., strikes) and drunk driving crimes, including the current offense.
Defendant also argues that his conduct in connection with the strikes was “not as serious as many robbery offenses . . . .” Actually, his first strike — the gang-related armed robbery of a minimart — was quite serious; while defendant was only the getaway driver, his conviction means that he intended to facilitate and did facilitate the robbery. His second strike, while less serious, did not stand alone. Defendant was inferably stealing repeatedly to support his drug habit. He had previously committed an almost identical crime that could have been charged as a robbery, but was charged as a burglary-plus-battery instead. This recidivist behavior places defendant squarely within the spirit of the three strikes law.
Defendant claims that, after his first strike, he moved out of the area “to get away from bad influences.” There is no evidence of this. Defendant told the probation officer that he was forced to move (“kicked out of the county”), possibly because he was viewed as a snitch. In any event, those “bad influences” were evidently not to blame for defendant’s criminal conduct, as he continued it on his own.
Defendant argues that he had no convictions since his parole in September 2005. He did have an unspecified parole violation, however, which caused him to be rearrested in December 2007. He was released from prison again in June 2008, and he committed the current offenses in August 2009. This is hardly a significant crime-free period.
We therefore conclude that the trial court did not abuse its discretion by denying defendant’s Romero motion. Indeed, we believe that it would have been an abuse of discretion to grant the motion.
VI
CRUEL AND UNUSUAL PUNISHMENT
Defendant contends that his sentence of 41 years to life5 constitutes cruel and unusual punishment.
Defendant forfeited this contention by failing to raise it below. (People v. Kelley (1997) 52 Cal.App.4th 568, 583; People v. DeJesus (1995) 38 Cal.App.4th 1, 27; People v. Ross (1994) 28 Cal.App.4th 1151, 1157, fn. 8.) He does not assert ineffective
A. Analysis Under the Federal Constitution.
In Ewing v. California (2003) 538 U.S. 11 [123 S.Ct. 1179, 155 L.Ed.2d 108], the plurality opinion, signed by three justices, upheld a three-strikes sentence of 25 years to life for grand theft. It explained: “When the California Legislature enacted the three strikes law, it made a 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 [plur. opn. of O’Connor, J.].) With respect to the particular defendant, it noted: “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.” (Id. at p. 29.) It concluded: “Ewing’s sentence is justified by the State’s public-safety interest in incapacitating and deterring recidivist felons, and amply supported by his own long, serious criminal record.” (Id. at pp. 29-30, fn. omitted.)
Justices Scalia and Thomas, concurring in the judgment, believed that the cruel and unusual punishment clause simply does not guarantee proportionality. (Ewing v. California, supra, 538 U.S. at pp. 31 [conc. opn. of Scalia, J.], 32 [conc. opn. of Thomas, J.].) Thus, a clear majority of the United States Supreme Court would uphold a three-strikes sentence in all but an “‘exceedingly rare’” case. (Id. at p. 21; see also Lockyer v. Andrade (2003) 538 U.S. 63, 73-76 [123 S.Ct. 1166, 155 L.Ed.2d 144].)
Defendant argues again (see part V.C, ante) that his current offense did not involve intentional violence. Nevertheless, unlike the grand theft in Ewing, it was a new serious and violent felony. Thus, defendant deserves a potential life sentence even more than Mr. Ewing did.
Recently, in In re Coley (2012) 55 Cal.4th 524, the California Supreme Court held that a third-strike sentence of 25 years to life in prison for the nonserious, nonviolent offense of failing to update one’s sex offender registration did not violate the federal cruel and unusual punishment clause. (Id. at p. 562.) It noted that “petitioner deliberately failed to register as a sex offender even though he knew he had an obligation to do so . . . .” (Id. at p. 561.) This “demonstrated that, notwithstanding the significant punishment that he had incurred as a result of his prior serious and violent felony convictions, petitioner was still intentionally unwilling to comply with important legal requirements prescribed by the state’s criminal laws.” (Id. at pp. 561-562.)
Here, again, defendant’s triggering offense is, in itself, a serious and violent felony. Moreover, defendant deliberately drove while drunk, even though he knew that he had an obligation not to do so. Thus, much as in Coley, his current offense demonstrated that, despite incurring significant punishment for his prior serious and violent felonies, defendant was still intentionally unwilling to comply with important legal requirements prescribed by the state’s criminal laws.
Defendant also argues that his prior robberies were relatively nonserious, as robberies go. As already noted (see part V.C, ante), we disagree. In any event, because robberies of any kind are serious and violent felonies, it does not violate the federal constitution — in the absence of some exceedingly rare mitigating circumstances, and there are none here — to subject defendant to punishment as a recidivist.
B. Analysis Under the State Constitution.
Under the state constitutional standard, “‘[t]o determine whether a sentence is cruel or unusual as applied to a particular defendant, a reviewing court must examine the circumstances of the offense, including its motive, the extent of the defendant’s involvement in the crime, the manner in which the crime was committed, and the consequences of the defendant’s acts. The court must also consider the personal
In re Lynch (1972) 8 Cal.3d 410 indicated that a court may also “compare the challenged penalty with the punishments prescribed in the same jurisdiction for different offenses which, by the same test, must be deemed more serious” (id. at p. 426), and “compar[e] . . . the challenged penalty with the punishments prescribed for the same offense in other jurisdictions having an identical or similar constitutional provision” (id. at p. 427). Subsequently, however, our high court held that, as long as punishment is proportionate to the defendant’s individual culpability (“intracase proportionality”), there is no requirement that it be proportionate to the punishments imposed in other similar cases (“intercase proportionality”). (E.g., People v. McDowell (2012) 54 Cal.4th 395, 444.) Accordingly, the determination of whether punishment is cruel and unusual may be based solely on the offense and the offender. (People v. Ayon (1996) 46 Cal.App.4th 385, 399, disapproved on other grounds in People v. Deloza (1998) 18 Cal.4th 585, 600, fn. 10, and cases cited.)
Here, the outstanding characteristic of both the offense and the offender is the recidivist commission of serious and violent felonies. Defendant has manifested a
VII
DISPOSITION
The judgment with respect to the conviction is affirmed, and the judgment with respect to the sentence is reversed, subject to the following conditions. On remand, the trial court must reconsider defendant’s motion for disclosure of jurors’ identifying information, and it must grant that motion, unless it finds that the evidence that otherwise supports the motion is not credible. If the trial court grants the motion, it must allow defendant a reasonable time to file a motion for new trial. If (1) the trial court denies the motion for disclosure of jurors’ identifying information, (2) the trial court grants the motion for disclosure of jurors’ identifying information, but defendant fails to file a timely motion for new trial, or (3) defendant files a timely motion for new trial, but the trial court denies the motion for new trial, the trial court must resentence defendant. If, however, a motion for new trial is filed and granted, the matter shall proceed accordingly.
CERTIFIED FOR PARTIAL PUBLICATION
RICHLI
J.
We concur:
RAMIREZ
P. J.
McKINSTER
J.
Notes
In this case, defendant does not argue that the trial court could not impose two prior serious felony enhancements. We deem him to have forfeited any such contention.
We point this out so the trial court can correct the error in any resentencing.