Filed 5/26/15 P. v. Nelson CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
THE PEOPLE, C075704
Plaintiff and Respondent, (Super. Ct. No. 12F04523)
v.
TRAURE ZURI NELSON,
Defendant and Appellant.
A jury convicted defendant Traure Zuri Nelson of carjacking (Pen. Code, § 215,
subd. (a))1 and sustained an enhancement for personally using a firearm (§ 12022.53,
subd. (b)). The trial court denied defendant’s motion to strike the enhancement as cruel
and/or unusual punishment and sentenced him to 13 years in state prison.
On appeal, defendant contends the trial court misunderstood the scope of its
authority to strike the enhancement as cruel and unusual punishment, and imposition of
1 Undesignated statutory references are to the Penal Code.
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the enhancement violates the state prohibition against cruel or unusual punishment. We
affirm.
BACKGROUND
The Crime
On July 7, 2013, defendant was the registered owner of a 2001 Lincoln Navigator
sport utility vehicle (SUV). As of that date, Lobel Financial, the SUV’s legal owner, had
sent multiple payment past due notices to defendant. It assigned repossession of the
vehicle to Hook and Book Recovery.
Around 8:00 p.m., Jeremy Monks, a repossession agent for Hook and Book
Recovery, went to defendant’s home to repossess the Navigator. Monks’s cousin
Brandon Meyer went along as a lookout and assistant. The Navigator was in the
driveway and Monks picked it up with his tow truck. As Monks and Meyer started to put
nylon ratchet straps on the rear wheels, defendant jumped over a fence and approached
them.
Defendant was agitated and “freaked out” and asked “what the hell was going on.”
Monks said they were repossessing his Navigator and told defendant he could retrieve his
belongings from the vehicle if he gave up the keys. Defendant said he needed some
things out of the Navigator and questioned whether Monks was a legitimate repossession
agent.
Monks got the repossession paperwork from his truck and showed it to defendant,
who snatched it from him.2 Defendant said he paid the bill; Monks and Meyer replied
they had to take the Navigator, but offered to give defendant a card that would allow him
to pay off the debt and regain the vehicle.
2 Meyer testified that he had the paperwork and defendant took it from him.
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Defendant’s behavior then “went south.” He told Monks and Meyer that they
were not going to take his car. He “started getting kind of violent,” started swearing, and
threatened to shoot Monks and Meyer. Defendant’s wife or girlfriend came out of the
house and stood on the patio. Defendant told her to “get the gun,” and that he would kill
Monks and Meyer before they took the Navigator. Monks and Meyer tried to calm
defendant down, but he did not seem to care and kept telling the woman to “grab the
gun.”
Defendant went into the house to get his keys. When defendant returned, Monks
asked for the keys. Defendant pulled a semiautomatic pistol out of his pocket and said
that they were not going to take his vehicle. Monks undid the straps, lowered the
Navigator, and quickly left with Meyer. He called his supervisor, who told him to call
the police.
Defendant made a full monthly payment on the Navigator on July 10, 2013. Lobel
Financial accepted payment and canceled the repossession.
Defendant was stopped while driving the Navigator and arrested on July 18, 2013.
The Hook and Book recovery paperwork and a receipt from Lobel Financial for the July
10, 2013, payment were inside the vehicle.
Motion to Strike the Enhancement
Defendant filed a motion to strike the section 12022.53 gun enhancement as a
violation of the state and federal prohibitions against cruel and/or unusual punishment.
He argued that recent changes in other laws reducing the punishments for various crimes
created a new context for considering his claim. He also argued that the facts of his case
were “substantially less egregious than those of the ‘standard’ carjacking.” The motion
pointed out that the Navigator was very important to defendant, who needed it to
transport his son, who had a leg amputated due to cancer, to medical appointments.
Defendant claimed his minimal criminal record, a 32 year old with no felony convictions,
further supported a finding that imposing the enhancement was a disproportionate
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punishment. He additionally noted that incarceration will gravely affect his girlfriend
and the four children he supports as the sole breadwinner. Finally, the manner in which
defendant conducted his life, avoiding gangs while growing up in the Oak Park
neighborhood, finishing high school and attending two years of college, and owning and
operating his own business, shows that the incident leading to his conviction was out of
character for his personality.
At the hearing on the motion, defense counsel reiterated the contentions regarding
changes to the law, the mitigated facts of the crime, and defendant’s lack of a significant
record.3 The trial court told counsel “that your argument really goes to the nature of the
Penal Code section 215 violation, which is -- this is not your typical, if you will,
carjacking.” Noting that the gun enhancement applied to “a whole plethora of offenses--
and it doesn’t really matter whether it’s carjacking or robbery or some similar offense,”
the court asked what about the nature of the offense “mitigates against applying the
[section] 12022.53[, subdivision] (b) uniformly?” Counsel replied that this was not a
standard carjacking and the firearm here was used in a “de minimis way.” The court
replied this was the type of situation section 12022.53 was intended to prevent, a person
in an emotionally charged situation using a firearm to commit an offense.
The court asked the prosecutor for his opinion on the facts of defendant’s crime.
The prosecutor argued that while this was not a standard carjacking, that did not matter to
the victims. Monks quit his job after the incident and Meyer no longer worked in
repossession. Therefore, the fact that defendant had an ownership interest in the vehicle
was irrelevant. Also, the recent changes to the law reducing punishment were enacted
3 When he was 12, defendant had a sustained delinquency petition for misdemeanor
vandalism. (Former § 594, subd. (b)(4).) As an adult, he has misdemeanor convictions
for false imprisonment (§ 236) and resisting an officer (§ 148, subd. (a)(1)).
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through legislation or the initiative process rather than judicially. The defense replied to
this last point by referring to recent decisions reducing punishment in certain situations.
The trial court then stated: “Well, I have considered the authorities that have been
cited. I’ve done some research on my own. I really don’t believe the lack of any
significant criminal record provides any basis for modifying the sentence to avoid an
imposition of the sanction under [section] 12022.53[, subdivision] (b). [¶] I think the
only thing that’s really pertinent here to that consideration, based on the authorities that
I’ve referred to, is the nature of the offense itself.” Continuing, the court asked the
prosecutor whether justice would not be served if it granted defendant’s request and
imposed a five-year enhancement under section 12022.5 rather than the 10-year section
12022.53 enhancement.
The prosecutor argued there was nothing mitigating about defendant’s offense.
Asked for additional comment, defense counsel said if someone had come up to
defendant’s home, knocked on the door, and said he had slept with defendant’s girlfriend,
defendant could receive a lesser sentence for shooting that man than what he would today
if the court did not grant the motion.
The trial court then denied defendant’s motion, finding “the conduct involving the
use of a firearm in this case is exactly what was intended to be proscribed by the effects
of that statute and I do not see any good cause based upon the overall conduct in this case
to depart from imposing the penalties under [section] 12022.53[, subdivision] (b).”
DISCUSSION
I
Defendant contends the trial court did not understand its authority to strike his
punishment as cruel or unusual under the California Constitution. He claims the court’s
statements at the hearing on his motion show a belief that it could not consider factors
like defendant’s lack of a prior record, and that the court limited its consideration to the
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nature of his current offense. Defendant asks us to reverse the denial of his motion to
strike the enhancement and remand for a new hearing.
Defendant’s contention is based on two statements from the trial court, the trial
court’s statement: “Well, I have considered the authorities that have been cited. I’ve
done research on my own. I really don’t believe the lack of any significant criminal
record provides any basis for modifying the sentence to avoid an imposition of the
sanction under [section] 12022.53[, subdivision] (b). [¶] I think the only thing that’s
really pertinent here to that consideration, based on the authorities that I’ve referred to, is
the nature of the offense itself,” and its statement denying his motion: “the conduct
involving the use of a firearm in this case is exactly what was intended to be proscribed
by the effects of that statute and I do not see any good cause based upon the overall
conduct in this case to depart from imposing the penalties under [section] 12022.53[,
subdivision] (b).” Defendant claims these statements show the trial court thought it could
not consider his lack of a significant prior record and denied the motion based solely on
the nature of the current offense.
We disagree. The judge obviously considered the facts of the case in considering
whether to impose the enhancements.
The nature of the current offense is not the only relevant consideration to
determining whether a punishment is unconstitutionally cruel or unusual. Other factors
to be considered include the nature of the offense and the offender, the penalty imposed
for more serious crimes, and the penalty imposed for the same offense in other
jurisdictions. (In re Lynch (1972) 8 Cal.3d 410, 425-427 (Lynch).) If the trial court
thought it could not consider valid factors like defendant’s prior record, then a remand for
resentencing would be appropriate.
In any event defendant did not raise an objection to the trial court on this ground,
which forfeits the contention on appeal. (People v. Speight (2014) 227 Cal.App.4th 1229,
1247-1248.) Defendant claims trial counsel’s failure to raise an objection constitutes
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ineffective assistance and asks us to ignore the forfeiture and consider on the merits the
alleged failure to consider his lack of significant criminal record.
“To prevail on a claim of ineffective assistance of counsel, defendant ‘must
establish not only deficient performance, i.e., representation below an objective standard
of reasonableness, but also resultant prejudice.’ [Citation.]” (People v. Hart (1999)
20 Cal.4th 546, 623.) As we shall discuss in part II, post, the 10-year enhancement did
not violate the proscription against cruel or unusual punishment. Since the question
whether a punishment is cruel or unusual is reviewed de novo as a question of law
(People v. Mantanez (2002) 98 Cal.App.4th 354, 358), defendant could not prevail on his
motion if the trial court did in fact consider all relevant factors. Therefore, he was not
prejudiced by any alleged refusal to consider his lack of a serious prior criminal record.
Since trial counsel was not ineffective, we decline to consider the forfeited contention.
II
Under section 12022.53, subdivision (b) a defendant who personally uses a
firearm when committing one of a certain number of specific felonies, is subject to a 10-
year enhancement. Carjacking is one of the felonies subject to this enhancement.
(§ 12022.53, subd. (a)(5).) Defendant contends that imposing this enhancement on him is
so disproportionate as to violate the California Constitution’s proscription against cruel or
unusual punishment. We disagree.
The California Constitution prohibits “Cruel or unusual punishment.” (Cal.
Const., art. I, § 17.) We construe this provision separately from its counterpart in the
federal Constitution. (Raven v. Deukmejian (1990) 52 Cal.3d 336, 355.)
“[I]n California a punishment may violate [California Constitution, article I,
section 17] 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.” (Lynch, supra, 8 Cal.3d at p. 424, fn. omitted.) To assess
disproportionality, we (1) examine the nature of the offense and the offender,
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(2) compare the sentence with punishments for more serious offenses in the same
jurisdiction, and (3) compare the sentence with punishments for the same offense in other
jurisdictions. (Id. at pp. 425-427.)
“In examining ‘the nature of the offense and the offender,’ we must consider not
only the offense as defined by the Legislature but also ‘the facts of the crime in question’
(including its motive, its manner of commission, the extent of the defendant’s
involvement, and the consequences of his acts); we must also consider the defendant’s
individual culpability in light of his age, prior criminality, personal characteristics, and
state of mind. [Citations.]” (People v. Crooks (1997) 55 Cal.App.4th 797, 806.)
Defendant relies on only the first technique listed in Lynch, the nature of the
offense and offender. He claims his offense is not a standard carjacking, as the crime was
not planned, and was not “motivated by greed, criminality, or gang-related conduct.”
According to defendant, this case is unlike the standard carjacking, “in which a
perpetrator arms himself and goes out to take someone else’s vehicle.” He further asserts
that he thought he had paid his bill before the attempted repossession, and that losing the
Navigator would have devastating consequences on his family, as it was used to take his
cancer-stricken son to medical appointments. Defendant also argues that the manner in
which he used the gun further supports a finding of disproportionality, as it was not used
as a first resort, he did not fire the weapon or point it directly at the victims, and the
victims were not particularly vulnerable. In light of defendant’s personal characteristics,
his education, employment history, and lack of a personal record, defendant concludes
that imposing the enhancement was grossly disproportionate and therefore violated the
California Constitution.
Defendant may be correct that this is not a standard carjacking because it was
committed against repossession agents rather than the owner and driver of a motor
vehicle. It was nonetheless a violent felony in which defendant’s use of a firearm was
integral to completing the crime. Defendant does not contend that Monks and Meyer did
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not have a right to repossess his vehicle.4 His attempts to stop them from repossessing
his Navigator were unsuccessful until he committed the enhancement by personally using
a firearm. Defendant did not use the gun on mere impulse; he twice asked his girlfriend
to retrieve it. He also threatened to shoot Monks and Meyer before he got the weapon.
We agree with the trial court that defendant’s actions are those that the Legislature
sought to deter when it enacted the enhancement in question. In addition to allowing
defendant to complete a carjacking, his personal use of a firearm imposed substantial
harm to his victims. Monks quit his job after his encounter with defendant. He did so
because he did not want to put himself in “that situation” again. Meyer also refused to
work in repossession after defendant’s carjacking. Like Monks, he did not want to put
himself “in that situation again.” Notwithstanding his arguments to the contrary,
defendant’s use of a firearm here was not mitigated but well within the norm of
culpability contemplated in the section 12022.53, subdivision (b) enhancement.
Defendant’s personal characteristics do not support a different result. He was 32
years old at the time of the crime, so his culpability is not mitigated by youth. Although
his criminal record is not significant, “[t]he lack of a criminal record is not determinative
in a cruel or unusual punishment analysis. [Citations.]” (People v. Felix (2003)
108 Cal.App.4th 994, 1001.) While defendant supported himself and his family, this
cannot insulate him from the gun-use enhancement.
It is not grossly disproportionate to impose a 10-year enhancement on a defendant
for personally using a firearm after threatening to shoot his victims, and where his doing
4 Section 215, subdivision (a) states: “ ‘Carjacking’ is the felonious taking of a motor
vehicle in the possession of another, from his or her person or immediate presence, or
from the person or immediate presence of a passenger of the motor vehicle, against his or
her will and with the intent to either permanently or temporarily deprive the person in
possession of the motor vehicle of his or her possession, accomplished by means of force
or fear.” If the agents did not have a right to repossess the vehicle, then defendant would
not be guilty of carjacking.
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so places them in such fear that they quit working in the car repossession field. The trial
court did not err when it denied his motion to strike the enhancement.
DISPOSITION
The judgment is affirmed.
BLEASE , J.
We concur:
RAYE , P. J.
ROBIE , J.
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