People v. Avila

Filed 11/30/20
CERTIFIED FOR PARTIAL PUBLICATION *

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, B294632

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA117445)
v.

RENE AVILA,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of
Los Angeles County, Steven D. Blades, Judge. Remanded for
resentencing.
Tracy L. Emblem, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Noah Hill, Michael C. Keller and Charles J.
Sarosy, Deputy Attorneys General, for Plaintiff and Respondent.

* Discussion sections I and II are not certified for
publication. (See Cal. Rules of Court, rules 8.1105, 8.1110.)
 A jury found Rene Avila guilty of attempted robbery and of
attempted extortion. On appeal, he contends that reversal of the
judgment is required because gang evidence was erroneously
admitted against him and there is insufficient evidence to
support attempted extortion. In the unpublished portion of this
opinion, we reject these contentions. However, in the published
portion of this opinion, we find that the trial court abused its
discretion by denying Avila’s Romero 1 motion and, moreover, the
sentence imposed on Avila is cruel or unusual punishment under
our California Constitution. We therefore remand for
resentencing.
BACKGROUND
On February 19, 2018, Bernardino Castro was selling
oranges and flowers at a freeway off-ramp. Castro speaks
Spanish and understands some English. Using a Spanish
speaking companion to speak to Castro, Avila told Castro to pay
him $100 in rent in order to sell at the location, claiming that it
was his “barrio,” which Castro understood as a reference to
gangs. When Avila said “money,” Castro understood that Avila
was asking for $100. Avila left but returned the next day and
asked for the money. When Castro said he didn’t have the
money, Avila squashed two bags of oranges and left. Castro
testified that the interaction with Avila made him “nervous” and
that he thereafter sold his oranges at a different location because
he was afraid Avila would do something to him.
The next day, February 21, 2018, Pedro Blanco-Quiahua
was selling oranges near the same freeway off-ramp. Avila

1 People v. Superior Court (Romero) (1996) 13 Cal.4th 497
(Romero).

2
approached and threw a bag of oranges on the ground, stomped
on them, and said, “money, money, money.” Avila then stomped
on another bag of oranges. Scared, Blanco-Quiahua backed
away. Avila left. A witness who worked nearby had noticed
Avila sitting for more than 20 minutes in front of a shop. The
witness saw Avila tossing bags of oranges into the dirt and heard
Avila say, “[m]oney, give me money.”
Based on this evidence, a jury found Avila guilty of the
attempted second degree robbery of Blanco-Quiahua (Pen. Code, 2
§§ 664, 211; count 1) and of the attempted extortion of Castro
(§§ 664, 518; count 2). On November 30, 2018, the trial court
denied Avila’s Romero motion to strike a prior conviction and
sentenced him to 25 years to life plus 14 years.
DISCUSSION
I. Admission of gang evidence
Although the trial court excluded gang evidence, a
prosecution witness referred to gangs. Avila now contends that
this reference to gangs violated his due process right to a fair
trial; hence, his motion for a mistrial should have been granted.
A. Additional background
Avila was not charged with a gang allegation, and there
was no evidence the crimes were gang-related. The trial court
therefore excluded evidence a witness thought Avila was a gang
member, finding the evidence to be more prejudicial than

2 Allfurther statutory references are to the Penal Code
unless otherwise indicated.

3
probative. Accordingly, the trial court directed the prosecutor to
remind her witnesses not to mention gangs.
Notwithstanding the trial court’s order, the prosecutor
asked Castro, when Avila “said to you that this was his barrio,
what did that mean to you?” The witness responded, “That he is
a gang member or something like that.” The prosecutor asked if
Castro was in fear for his safety, and the trial court then
sustained defense counsel’s leading objection to that question.
Out of the jury’s presence, the prosecutor explained that she had
told witnesses not to mention gangs but had failed to have a
specific conversation with Castro. The defense moved for a
mistrial. In response, the prosecutor asserted that she did not
know the witness would say “barrio” meant gang to him. 3 The
trial court denied the mistrial motion but offered to give a
curative instruction upon request. Defense counsel did not ask
for a curative instruction, and none was given.
B. Avila’s right to a fair trial not irreparably damaged
Avila moved for a mistrial based on Castro’s statement he
thought Avila was referring to gangs when Avila used the word
“barrio.” Such a motion should be granted only when a party’s
chances of receiving a fair trial have been irreparably damaged.
(People v. Clark (2011) 52 Cal.4th 856, 990.) Whether a
particular incident is incurably prejudicial requires a nuanced,
fact-based analysis which the trial court is in the best position to
conduct. (People v. Chatman (2006) 38 Cal.4th 344, 369–370.)

3 The prosecutor later recollected that “maybe” she did tell
Castro not to use the word gang and confirmed with her
investigating officer that she had.

4
Hence, we review an order denying a motion for mistrial under
the deferential abuse of discretion standard. (Clark, at p. 990.)
Given the potentially prejudicial effect of gang membership
evidence, it should be excluded in cases not involving a gang
enhancement, where its probative value is minimal. (People v.
Albarran (2007) 149 Cal.App.4th 214, 223; accord, People v.
Avitia (2005) 127 Cal.App.4th 185, 192.) Gang evidence is
inadmissible to show a defendant’s criminal disposition or bad
character as a vehicle to create an inference the defendant
committed the crime. (Avitia, at p. 192.)
Here, there was no evidence the crimes were gang-related,
and there was no gang allegation. The trial court therefore
properly excluded gang evidence. Castro’s testimony that he
understood Avila’s reference to “barrio” to mean that Avila was a
gang member should not have come in. Even so, when a
witness’s volunteered statement is not attributable to either
party, a mistrial is called for only if the misconduct is so
inherently prejudicial as to threaten the defendant’s right to a
fair trial despite admonitions from the court. (People v. Molano
(2019) 7 Cal.5th 620, 675–676.) Although the trial court
indicated it would give a curative instruction at the request of the
defense, the defense did not request one, presumably as a matter
of strategy as defense counsel had expressed concerns about
highlighting the issue for the jury.
Notwithstanding the inflammatory nature of gang
evidence, the lone and fleeting reference to gang evidence did not
deprive Avila of a fair trial. Castro merely testified that when
Avila said “barrio,” Castro thought he was a gang member.

5
Beyond Castro’s speculation, there was no other evidence Avila
was a gang member. 4
Avila, however, argues that the comment was highly
prejudicial because it went to the use of a threat, fear, or force
element of attempted extortion in CALCRIM No. 1830. He
suggests the gang evidence was the only evidence that Avila
threatened Castro. That is incorrect. When Castro refused to
give Avila money, Avila crushed a bag of oranges. This act
satisfied the element, especially when considered in the context
of Avila’s demand. (See People v. Bollaert (2016) 248 Cal.App.4th
699, 725 [threat implied from all circumstances].) Thus, there
was other compelling evidence that Avila threatened Castro or
used force or fear in his attempt to extort money, apart from the
lone reference to gangs.
People v. Avitia, supra, 127 Cal.App.4th 185 is
distinguishable. The defendant in that case was charged with
grossly negligent discharge of a firearm. (Id. at p. 191.) The trial
court admitted evidence that there was gang graffiti in Avitia’s
bedroom. Avitia found that the gang evidence was irrelevant to
any issue at trial, as there was no allegation the crime was gang-
related, and the evidence did not link Avitia to the guns. The
evidence was particularly irrelevant given that it was undisputed
Avitia possessed the guns. Further, the Court of Appeal found
that the gang evidence severely undercut Avitia’s defense and
credibility. That is, Avitia contended he was a former military
small arms repairman and gun hobbyist who was conducting
target practice with a pellet gun, which is a lawful activity. But

4 Avila
has a teardrop tattoo on his face, but no evidence or
mention was made about it at trial.

6
evidence he was a gang member suggested he had a criminal
disposition; hence, his story was false, and his arsenal of guns
presented a danger to the community. (Id. at p. 195.) Avitia thus
concluded that the gang evidence prejudiced Avitia.
We do not perceive any similar prejudice here. The gang
evidence did not undercut any defense or suggest that the
witness’s version of events was false, i.e., that Avila did not
demand money or crush the oranges. Rather, as we have said, to
the extent the gang evidence went to the force or fear element of
the crimes, there was other compelling evidence of that element.
Avila also points out that CALCRIM No. 1830 states the
“threat may involve harm to be inflicted by the defendant or
someone else.” (Italics added.) He argues that the jury would
have understood the “someone else” to be a gang member based
on Castro’s stray remarks and comments the prosecutor made in
closing argument that Avila was “terrorizing” the victims.
However, “terrorizing” was not the prosecutor’s word. A witness
used that word to describe what Avila did to Blanco-Quiahua. In
repeating that word in her closing argument, the prosecutor drew
no connection to gangs.
II. Sufficiency of the evidence
Avila next contends there is insufficient evidence of
attempted extortion, specifically, that he accomplished the crime
by threat or force. 5 We disagree.
“ ‘When considering a challenge to the sufficiency of the
evidence to support a conviction, we review the entire record in
the light most favorable to the judgment to determine whether it

5 The trial court denied Avila’s section 1118.1 motion as to
this count.

7
contains substantial evidence—that is, evidence that is
reasonable, credible, and of solid value—from which a reasonable
trier of fact could find the defendant guilty beyond a reasonable
doubt. [Citation.] We presume in support of the judgment the
existence of every fact the trier of fact reasonably could infer from
the evidence. [Citation.] If the circumstances reasonably justify
the trier of fact’s findings, reversal of the judgment is not
warranted simply because the circumstances might also
reasonably be reconciled with a contrary finding.’ ” (People v.
Covarrubias (2016) 1 Cal.5th 838, 890.)
Extortion is obtaining another’s property or other
consideration, with the person’s consent but induced by the
wrongful use of force or fear. (§ 518.) The elements of attempted
extortion are a specific intent to commit extortion and a direct
but ineffectual act done toward its commission. (People v. Ochoa
(2016) 2 Cal.App.5th 1227, 1230.) A defendant may induce fear
by a threat to do an unlawful injury to the person or property.
(§ 519.)
Likening this case to People v. Ochoa, supra, 2 Cal.App.5th
1227, Avila contends there was no evidence he attempted to use a
threat or force to induce Castro to give him money. Ochoa is not
on point because the person or entity from whom the defendant
in that case tried to extort money was not the victim identified in
the information. Since there was no evidence the defendant tried
to extort money from the person named in the information, Ochoa
is more about the procedural due process requirement of giving a
defendant notice of the specific charge than it is about sufficiency
of the evidence.
As to the sufficiency of the evidence here, Avila makes
much of his use of a translator to convey his threat to Castro. In

8
doing so, Avila misstates the record when he asserts that Castro
did not understand what Avila and the translator were saying.
To the contrary, Castro’s limited English did not prevent him
from concluding that Avila wanted money. Moreover, when Avila
returned the next day without a translator and demanded “the
money,” Castro understood. Avila then crushed Castro’s oranges,
driving home his point so clearly that Castro was afraid to sell at
the location for several days.
Avila argues he did not attempt to use force or a threat
because he crushed the oranges after Castro refused to give him
money. However, Castro—and the jury—could have reasonably
understood that Avila crushed the oranges to force Castro into
relenting. In any event, attempted extortion does not contain a
timing requirement regarding when the force or threat must be
applied, especially where, as here, the entire event occurs in a
short period of time. Rather, as we have said, the threat may be
implied from all the circumstances. (People v. Bollaert, supra,
248 Cal.App.4th at p. 725.)
III. Romero
Avila admitted having three prior strikes within the
meaning of the “Three Strikes” law. The trial court denied
Avila’s Romero motion to strike any of them. Avila now contends
that the trial court abused its discretion by denying his motion.
We agree.
While the purpose of the Three Strikes law is to punish
recidivists more harshly (People v. Davis (1997) 15 Cal.4th 1096,
1099), not all recidivists fall within the spirit of that law. A trial
court therefore may strike or dismiss a prior conviction in the
furtherance of justice. (§ 1385, subd. (a); Romero, supra,
13 Cal.4th at p. 504.) When considering whether to strike a prior

9
conviction, the factors a court considers are whether, in light of
the nature and circumstances of the defendant’s present felonies
and prior serious and/or violent felony convictions, and the
particulars of the defendant’s background, character, and
prospects, the defendant may be deemed outside the scheme’s
spirit, in whole or in part, and hence should be treated as though
the defendant had not previously been convicted of one or more
serious and/or violent felonies. (People v. Williams (1998)
17 Cal.4th 148, 161.)
We review a trial court’s ruling on a Romero motion under
the deferential abuse of discretion standard, which requires the
defendant to show that the sentencing decision was irrational or
arbitrary. (People v. Carmony (2004) 33 Cal.4th 367, 375, 378.)
It is not enough that reasonable people disagree about whether to
strike a prior conviction. (Id. at p. 378.) The Three Strikes law
“not only establishes a sentencing norm, it carefully
circumscribes the trial court’s power to depart from this
norm . . . [T]he law creates a strong presumption that any
sentence that conforms to these sentencing norms is both rational
and proper.” (Ibid.) Only extraordinary circumstances justify
finding that a career criminal is outside the Three Strikes law.
(Ibid.) Therefore, “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.” (Ibid.)
That only extraordinary circumstances justify deviating
from the three strikes sentencing scheme does not mean such
cases do not exist. (People v. Vargas (2014) 59 Cal.4th 635, 641.)
And the abuse of discretion standard is neither “empty” (People v.
Williams, supra, 17 Cal.4th at p. 162) nor are all recidivists the
kind of career criminals appropriately considered under that

10
scheme. Cumulative circumstances, including that a defendant’s
crimes were related to drug addiction and the defendant’s
criminal history did not include actual violence, may show that
the defendant is outside the spirit of the Three Strikes law.
(People v. Garcia (1999) 20 Cal.4th 490, 503.) Also, an abuse of
discretion may be found where a trial court considers
impermissible factors, and, conversely, does not consider relevant
ones. (People v. Carmony, supra, 33 Cal.4th at p. 378.)
That is precisely what occurred here. The trial court did
not consider factors relevant to the nature and circumstances of
Avila’s prior strikes. Avila committed his first strike offenses (a
second degree robbery and an assault with a knife) on the same
occasion 6 in 1990 when he was 18 years old. 7 According to the
preliminary hearing transcript in that case, Avila and two
accomplices robbed a man who was filling newspaper vending
machines. The man testified that Avila held a knife to his throat,
and the man’s arm was cut when the man threw his arm up.
Avila was paroled in 1991. Then, in 1992, when Avila was 20
years old, he committed his last and most recent strike offense, a

6 Multiple convictions arising from a single act against a
single victim count as one strike. (People v. Vargas, supra,
59 Cal.4th at p. 637.) Avila’s robbery and assault with a deadly
weapon were not a single act, and therefore Vargas does not
apply. Nonetheless, Vargas does not preclude a trial court from
considering that strikes were committed on the same occasion as
relevant to the nature and circumstances of those crimes, even if
that fact does not compel striking a prior.
7 As a juvenile, Avila had six sustained petitions primarily
for being under the influence of drugs or possessing them,
although he also had a sustained petition for burglary and for
resisting arrest.

11
second degree robbery, as well as possession of a firearm by a
felon. He was sentenced to 10 years in prison. 8
In evaluating these prior strikes, the trial court appeared
to agree they were remote in time but then noted that section
667, subdivision (c)(3) provides that the time between a strike
and the current felony does not affect the imposition of sentence.
The trial court said it was “not quite sure how that coincides with
this [case], but so be it.” However, all that section suggests is
that the remoteness of prior strikes alone is not sufficient to take
a defendant out of the spirit of the Three Strikes law. Still,
remoteness remains a factor in mitigation. (See People v. Strong
(2001) 87 Cal.App.4th 328, 342; People v. Bishop (1997) 56
Cal.App.4th 1245, 1250–1251.) Avila’s prior strikes were from
1990 and 1992, so they were 28 and 26 years old, respectively,
when he committed the current offenses in 2018. That is a
significant lapse of time to say the least.
It is also significant that Avila committed his prior strikes
when he was under the age of 21. Had he committed those
crimes now while that age, he would be considered a youth
offender entitled to expanded parole consideration. (See, e.g., §
3051, subd. (a)(1) [youth offender is a person 25 years old or
younger].) The trial court noted that Avila’s age when he
committed the strikes does not preclude a sentence, though it
comes into play when he is eligible for parole. That much is true.
But it is not the salient point for the purposes of Romero. Avila’s
age when he committed his strikes, even if not dispositive, is

8 Avila was paroled in November 1997, but parole was
revoked five months later. In August 1998, he was released on
parole, which was again revoked two months later.

12
plainly relevant to the nature and circumstances of the strikes
and could be a mitigating factor. This is in line with the
increasing recognition that young adults are constitutionally
different from adults for sentencing purposes because of their
diminished culpability and greater prospects for reform. (See,
e.g., In re Jenson (2018) 24 Cal.App.5th 266, 276 & cases cited
therein.) That we are considering what sentence to impose on the
middle-aged Avila does not preclude consideration that it was a
youthful Avila who committed the prior strikes, for the purposes
of Romero. The trial court, however, mistakenly believed that it
could not consider this mitigating factor at sentencing.
Instead, the trial court’s decision that Avila fell within the
spirit of the Three Strikes law hinged primarily on the nature
and circumstances of his current offenses. The trial court noted
that Avila had victimized vulnerable people eking out a living by
selling fruit. What right, the trial court questioned, did Avila
have to charge rent to people selling things on the street? The
trial court added that Avila committed his current crimes in a
“violent” and “brutal” way by intimidating victims making just
$300 a week. “His acts really amounted to thuggery.” The trial
court then speculated that had someone not called the police,
“who knows what would have happened.”
Without a doubt, Avila’s conduct was offensive. Preying on
some of the most vulnerable people in society is contemptible.
The prosecutor’s own opening statement aptly characterized
Avila as a “bully.” However, the trial court speculated about
what might have happened had the police not been called,
implying the infliction of physical harm to the victims that never
appeared in the evidence at trial. Sentencing is not the proper
venue for the trial court’s imagination. Ruling on a Romero

13
motion requires consideration of the nature and circumstance of
the crime actually committed, not a crime that might have
occurred. Moreover, the record does not support the trial court’s
speculation. When the victims refused to give Avila money, he
destroyed several bags of oranges and left. While we do not make
light of this intimidating behavior, it was not violent or brutal by
any stretch. Avila did not use a weapon or otherwise use physical
violence against the victims, nor did he make any specific threats.
He squashed oranges.
In characterizing Avila’s current crimes as violent, the trial
court misapprehended their nature. Attempted robbery is a
serious crime but not a violent one. (§ 1192.7, subd. (c)(19), (39).)
Attempted extortion is neither a violent nor serious crime.
(§§ 667.5, subd. (c), 1192.7, subd. (c).) Nor was the trial court
merely hyperbolically describing Avila’s crimes as violent. The
trial court erroneously sentenced Avila as a violent offender by
limiting his conduct credits to a maximum of 15 percent of actual
time served under section 2933.1, subdivisions (a) and (c).
The fact is that Avila has not committed a violent felony
since his strike offenses, showing that the severity of his record is
decreasing. The trial court took note of this circumstance but
otherwise noted that Avila “still ha[d] been to prison a couple of
times since.” But for what did Avila go to prison we ask? In
1999, Avila was convicted of unlawful sexual intercourse with a
minor under the age of 16 (§ 261.5, subd. (d)) and sentenced to
four years in prison. He later married her, and they had a child
together. 9 Avila was convicted in 2005 of misdemeanor drug

9 Avila’s victim/wife stated that her mother allowed the
relationship.

14
possession. His last felony offense was in 2008 for drug
possession in violation of Health and Safety Code section 11350,
subdivision (a), a crime which has since been reclassified as a
misdemeanor under Proposition 47 (see People v. Valencia (2017)
3 Cal.5th 347, 355). Thus, Avila’s poststrike criminal history is
not characterized by serious or violent crimes.
Also, after being incarcerated for the 2008 drug possession,
Avila was released from prison in 2011. The record does not
show that Avila committed any crimes while incarcerated from
2008 to 2011. Upon his release in 2011, he incurred
misdemeanors for possessing a controlled substance, being an
unlicensed driver, and driving on a suspended license.
Otherwise, he remained crime free until committing the current
offenses in 2018. Given Avila’s decade long period of committing
no felonies and the minor nature of the offenses he did commit
during that period, it is inaccurate to characterize him as a
career or habitual criminal or, in the prosecutor’s words, as
having a “continuous criminal history” from 1989 to the present.
Avila is not comparable to the defendant who has led a
continuous life of crime so as to counteract the extreme
remoteness of his priors. (See, e.g., People v. Humphrey (1997) 58
Cal.App.4th 809, 813.)
With respect to Avila’s background, character and
prospects, the trial court referred to Avila’s drug addiction but
did not reach a conclusion whether it was a mitigating or
aggravating factor, instead noting that it could be a mitigating
factor unless Avila failed to address the problem, in which case it
could be an aggravating factor. (See generally People v. Gaston
(1999) 74 Cal.App.4th 310, 322.) While we do not disagree with
the general notion that a defendant’s drug problem may have

15
little mitigating value where the problem is longstanding (see,
e.g., People v. Regalado (1980) 108 Cal.App.3d 531, 539–540), we
disagree that is always necessarily the case (see Cal. Rules of
Court, rule 4.423(b)(2) [defendant’s mental or physical condition
is mitigating factor in sentencing]). Just as the law is evolving in
its understanding and treatment of juvenile offenders, it is
evolving in how it treats drug users. Since the passage of
Proposition 47, for example, nonserious, nonviolent drug
possession offenses are misdemeanors rather than felonies.
(People v. DeHoyos (2018) 4 Cal.5th 594, 597.)
According to Avila’s Romero motion, which included a
mitigation report, Avila began using drugs when he was 12 years
old. His father, who also abused drugs and alcohol, gave him
PCP and cocaine as a child. As a juvenile, Avila received
treatment for his drug addiction, which helped. After being
released from prison in 2004, he continued to struggle with drug
addiction (as evidenced by his 2005 and 2008 misdemeanor drug
possession convictions) but he tried to become sober and was able
to get a job as a trailer driver, which required him to obtain a
class A driver’s license. However, in 2016, he was injured in a
car accident, which left him with neck and back pain. He began
drinking and using drugs again. Just one month after the car
accident, he was in a second car accident, after which his driver’s
license was suspended, so he was laid off from work. 10 Thus,
Avila has clearly struggled with drug addiction since he was a

10 Avilaalso has been shot three times: when he was
16 years old a bullet grazed him while he was at a party; when
he was 26 years old he was shot and, as a result, hospitalized for
two weeks; and in 2017, he was shot in the elbow, which required
surgery.

16
child. But it cannot be said he has never addressed it. He had
treatment for it when he was a juvenile. After Avila was released
from prison in 2004, he tried to become sober and obtained and
maintained gainful employment. Further, Avila’s wife spoke well
of his character, reporting he was a good father to their daughter
and supported their child when he had a job.
Avila’s age, 47 when sentenced, is also relevant to his
background, character, and prospects. Although Avila’s middle
age status alone does not remove him from the spirit of the Three
Strikes law (see People v. Strong, supra, 87 Cal.App.4th at pp.
332, 345), given his age, his three strikes sentence coupled with
the determinate term means he will likely die in prison. Avila
indeed may be deserving of a lengthy sentence. But even under
the defense’s proposed 12 years four months sentence, 11 Avila
would have been imprisoned and not eligible for parole until
approaching 60 years of age. The length of a sentence is the
“overarching consideration” in deciding whether to strike a prior
conviction because the underlying purpose of striking a prior
conviction is the avoidance of unjust sentences. (People v. Garcia,
supra, 20 Cal.4th at p. 500.)
For these reasons, no reasonable person could agree that
the sentence imposed on Avila was just. Avila’s prior strikes
were remote and committed when he was of diminished
culpability based on his age, a factor the trial court erroneously
concluded was inapplicable to the formulation of his sentence.
Despite the trial court’s characterization of the facts, Avila’s

11 The proposed 12 years four months sentence was
composed of the high term of three years doubled to six years and
five years for the prior on count 1 plus eight months doubled to
16 months on count 2.

17
current offenses were not violent and, on the spectrum of
criminal behavior, fall closer to the end of less reprehensible
conduct. Much of his criminal conduct appears to be related to
his drug addiction rather than to sinister motives and falls well
outside the realm of what could be considered the work of a
career criminal. We therefore conclude that the trial court
abused its discretion by denying Avila’s Romero motion.
IV. Cruel or unusual punishment
Worse, Avila’s sentence is cruel or unusual punishment
under the California Constitution, article I, section 17. 12 A
punishment is cruel or unusual in violation of the California
Constitution if “it is so disproportionate to the crime for which it
is inflicted that it shocks the conscience and offends fundamental
notions of human dignity.” (In re Lynch (1972) 8 Cal.3d 410, 424
(Lynch).) 13 Three techniques are employed to make this
determination: first, we examine the nature of the offense and/or
the offender with particular regard to the degree of danger both
present to society; second, compare the challenged penalty with

12 Avila’s counsel did not object that the sentence was cruel
and/or unusual punishment, thereby forfeiting the claim on
appeal. However, we have the discretion to address the merits.
(See, e.g., People v. Reyes (2016) 246 Cal.App.4th 62, 86; In re
Sheena K. (2007) 40 Cal.4th 875, 887, fn. 7.)

13 The Eighth Amendment of the United States
Constitution prohibits cruel and unusual punishment. The
distinction in wording between the federal and state constitutions
is substantive and not merely semantic. (People v. Baker (2018)
20 Cal.App.5th 711, 723.) We decide Avila’s case only under the
California Constitution.

18
the punishments for more serious offenses in California; and
third, compare the challenged penalty with the punishments
prescribed for the same offense in other states. (Id. at pp. 425–
427.) Disproportionality need not be established in all three
areas. (People v. Dillon (1983) 34 Cal.3d 441, 487, fn. 38.)
In our tripartite system of government, the legislative
branch defines crimes and prescribes punishment. (Lynch, supra,
8 Cal.3d at p. 414.) It is therefore the rare case where a court
could declare the length of a sentence mandated by the
Legislature unconstitutionally excessive. (People v. Martinez
(1999) 76 Cal.App.4th 489, 494.) Even so, it is the judiciary’s
responsibility to condemn any punishment that is cruel or
unusual. (Lynch, at p. 414.) We independently review whether a
punishment is cruel or unusual, considering any underlying
disputed facts in the light most favorable to the judgment.
(People v. Edwards (2019) 34 Cal.App.5th 183, 190.)
A. The nature of the offense and of the offender
The first Lynch technique requires considering the nature
of the offense in the abstract as well as the facts of the crime in
question, “i.e., the totality of the circumstances surrounding the
commission of the offense . . . , including such factors as its
motive, the way it was committed, the extent of the defendant’s
involvement, and the consequences of his acts.” (People v. Dillon,
supra, 34 Cal.3d at p. 479.) Courts must view the nature of the
offender in the concrete rather than the abstract, considering the
defendant’s age, prior criminality, personal characteristics, and
state of mind. (Ibid.) Stated simply, the punishment must fit the
individual criminal. (Lynch, supra, 8 Cal.3d at p. 437.)
Where, as here, the defendant is a recidivist, it is not as a
general rule cruel or unusual to enhance a sentence based on the

19
defendant’s status as a recidivist; still, “the ultimate punishment,
all facts considered,” must not be disproportionate to the crime.
(People v. Mantanez (2002) 98 Cal.App.4th 354, 359; see Solem v.
Helm (1983) 463 U.S. 277, 284–288.) “Accordingly, the current
offense must bear the weight of the recidivist penalty imposed.”
(People v. Carmony (2005) 127 Cal.App.4th 1066, 1072.) Because
the penalty is imposed for the current offense, the focus must be
on the seriousness of that offense: past offenses alone will not
justify imposing an enhanced sentence. (Id. at pp. 1079–1080.)
Avila’s current offenses are attempted robbery and
attempted extortion. Neither are violent crimes, and extortion is
neither serious nor violent. (§§ 667.5, subd. (c), 1192.7, subd. (c).)
Although both require the attempt to use force or fear (§§ 211,
518), Avila did not use violence against either of his victims. He
did not verbally or physically threaten them. Rather, when the
victims refused to give Avila money, he crushed their oranges
and left. Avila’s motive for his crimes is unclear, though it is
reasonable to infer it was financial, given that he demanded
money. Also, the total amount of property damage was about $20
worth of citrus, a point we make because it is relevant to the
minor nature of the offenses and not to trivialize the worth of the
property to the victims. The unsophisticated nature of the
attempted robbery and attempted extortion committed by Avila
are thus not comparable to armed robberies, which have been
described as most heinous in nature (People v. Sullivan (2007)
151 Cal.App.4th 524, 570).
As to the consequences of Avila’s actions, he frightened the
victims, so much so that Castro sold his fruit at a different
location for several days. However, there are “rational
gradations of culpability that can be made on the basis of the

20
injury to the victim or to society in general.” (In re Foss (1974)
10 Cal.3d 910, 919.) Here, the victims were physically uninjured
even if emotionally traumatized. Although trying to force
vendors to pay rent is an affront to society, the harm the victims
suffered is arguably less than that caused by the crime of
indecent exposure, which our California Supreme Court described
as “minimal at most” and not a “sufficiently grave danger to
society to warrant the heavy punishment of a life-maximum
sentence.” (Lynch, supra, 8 Cal.3d at p. 431.) A punishment
passes constitutional muster only if the totality of the
circumstances surrounding the current offenses can bear the
weight of the sentence imposed. (See People v. Carmony, supra,
127 Cal.App.4th at p. 1072.) Avila’s current offenses alone
cannot justify the sentence imposed. It bears repeating: he
squashed oranges and was sentenced to life.
Clearly, Avila’s sentence is primarily attributable to his
recidivist status. But the life sentence required by the Three
Strikes law must consider “variations in individual culpability.”
(People v. Carmony, supra, 127 Cal.App.4th at p. 1087.) A “one-
size-fits-all” sentence is disproportionate to a current offense
where the current offense is “minor and the prior convictions are
remote and irrelevant to the offense.” (Id. at p. 1088.)
An example of a minor offense is failing to update sex
offender registration. (People v. Carmony, supra, 127
Cal.App.4th at p. 1071; but see People v. Meeks (2004) 123
Cal.App.4th 695.) The defendant in Carmony, at page 1071, had
three prior serious or violent felonies and was sentenced to 25
years to life under the Three Strikes law. Given the minimal and
harmless nature of the defendant’s current offense and the
relatively light penalty for a simple violation of registration

21
requirements, his prior offenses almost wholly accounted for the
extreme penalty imposed. (Carmony, at p. 1080.) After
considering the Lynch techniques, the court acknowledged that
the three strikes sentence was cruel or unusual punishment.
(Carmony, at pp. 1086–1089.) In so doing, the court noted it is
the rare case that violates the prohibition against cruel or
unusual punishment. (Id. at p. 1072.) Still, there is a “bottom to
that well.” (Ibid.) A passive, nonviolent, regulatory offense that
poses no direct or immediate danger to society is the bottom of
that well. (Id. at p. 1078.)
In contrast, a 25-years-to-life sentence imposed on a
recidivist whose current offenses were for heroin possession and
receiving stolen property was not found by another court to be
cruel or unusual. (People v. Mantanez, supra, 98 Cal.App.4th at
pp. 356, 366–367.) The defendant in Mantanez, at page 366, had
an extensive criminal history spanning 17 years and including
10 felony convictions and four separate prison terms. His felonies
included forcible entries into occupied homes, and he repeatedly
violated parole and probation. (Ibid.) This “long criminal career”
brought the defendant squarely within the Three Strikes law.
(Ibid.; see, e.g., People v. Bernal (2019) 42 Cal.App.5th 1160,
1172–1173 [defendant had 10 current offenses and lengthy
criminal record]; People v. Haller (2009) 174 Cal.App.4th 1080,
1088 [current offense involved threats of violence]; People v.
Martinez (1999) 71 Cal.App.4th 1502, 1507–1508 [current offense
involved gun; priors included violent felonies and 50
misdemeanors]; People v. Cline (1998) 60 Cal.App.4th 1327,
1337–1338 [current offense for grand theft and priors included 12
residential burglaries].)

22
 If Avila’s current offenses are not at the bottom of the well
like the one in People v. Carmony, supra, 127 Cal.App.4th 1066,
they are certainly in that neighborhood. Neither do they place
him alongside recidivists for whom a three strikes sentence is
constitutional. Rather, given the relatively minor nature of
Avila’s current conduct, his sentence rests on his prior offenses.
There are, however, discernable gradations of culpability among
prior offenses that must be accounted for when imposing
sentence. (In re Grant (1976) 18 Cal.3d 1, 10, 13.) His criminal
record is worthy of exploration. Avila’s prior strikes occurred
almost 30 years before his current crimes. The only crimes he
committed involving actual violence were his first two, the second
degree robbery and assault with a knife, which he committed on
the same occasion in 1990 when he was 18 years old. He
committed his third strike for second degree robbery in 1992,
when he was 20 years old. His 1999 conviction of unlawful
sexual intercourse with a minor involved a victim whom he
married and with whom he had a child. 14 And his last felony
conviction in 2008 was for drug possession, which would now be a
misdemeanor.
Avila’s drug addiction provides a backdrop to this criminal
history. His status as a drug addict cannot itself be punished.
(See U.S. Const., 14th Amend.; Robinson v. California (1962) 370
U.S. 660, 667; In re Foss, supra, 10 Cal.3d at p. 921.) Conduct
that drug addiction causes (e.g., use, possession, or sale) can be
punished. (Foss, at p. 921.) These two truisms often intersect
when it comes to punishment.

14 It is unclear whether they remain married.

23
 The petitioner in In re Foss, supra, 10 Cal.3d at page 916,
for example, was convicted of five counts of furnishing heroin in
violation of the Health and Safety Code. He had a prior for
possessing heroin that caused him to be sentenced to prison for
10 years to life without the possibility of parole for a period of not
less than 10 years. (Ibid.) In considering the constitutionality of
that recidivist provision precluding parole consideration for a
mandatory minimum term, the court found that drug addiction
was a “compelling consideration” in determining whether the
punishment was cruel or unusual. (Id. at p. 923.) “Measured
from the evolving standards of decency that mark the progress of
a maturing society,” the court found that the mandatory
minimum term was “cruel in its failure to consider the extent to
which the addict’s repetition of proscribed behavior is
attributable to his addiction.” (Ibid.; see In re Rodriguez (1975)
14 Cal.3d 639, 655 [limited intelligence and inability to cope with
inadequacies partly explained criminal conduct].) Foss thus
supports the simple proposition that drug addiction is a factor to
consider in relation to the nature of the offender. 15
In sum, the first Lynch technique shows that Avila’s
sentence lacks proportionality to his crimes.
B. Comparing punishments intrastate and interstate
Lynch’s second and third techniques to determine
disproportionality require comparing Avila’s punishment with
those imposed for more serious offenses in California and in other
jurisdictions. Avila thus argues that his third strike sentence

15To be clear, we do not cite Foss for the proposition that
Avila cannot or should not be punished for his current crimes
because he is a drug addict.

24
plus the determinate term is disproportionate to the sentence for
attempted robbery, which carries a 16 months two- or three-year
term (§ 213, subd. (b)). He also compares it to the nine-year
maximum sentence for first degree robbery (§ 213, subd. (a)(1)(A))
and for carjacking (§ 215, subd. (b)). However, Avila was not
sentenced just for his current offenses. He was sentenced as a
habitual offender. As such, any comparison would be to
sentences given to other recidivists, a comparison Avila has not
undertaken. 16 As to national recidivist statutes, versions of
California’s Three Strikes law are common, but California’s law
has been among the “ ‘most extreme.’ ” 17 (People v. Sullivan,
supra, 151 Cal.App.4th at p. 572.) For this reason, Avila
acknowledges the difficulty in comparing three strikes schemes
among states.
It is unnecessary to establish disproportionality using all
three Lynch techniques. (People v. Dillon, supra, 34 Cal.3d at
p. 487, fn. 38.) Nonetheless, the evolving state of California’s
criminal jurisprudence is relevant to an analysis of
disproportionality and, hence, to what is cruel or unusual

16 Some courts have found the second Lynch technique
inapplicable to three strikes cases because the defendant is being
punished for the current offense and his recidivism. (See, e.g.,
People v. Sullivan, supra, 151 Cal.App.4th at pp. 571–572; People
v. Cline, supra, 60 Cal.App.4th at p. 1338.)
17 The People point out that California’s Three Strikes law
is not even the most extreme. Louisiana imposes life without the
possibility of parole (LWOP) for a third felony when all three
felonies are violent or a sex offense. (La. Rev. Stat. Ann. § 15–
529.1.) Mississippi imposes LWOP for a third felony if any of
three felonies was violent. (Miss. Code Ann. § 99–19–83.)

25
punishment under our state constitution. Our Three Strikes law
has undergone significant change. As originally enacted in 1994,
“the Three Strikes law required that a defendant who had two or
more prior convictions of violent or serious felonies receive a third
strike sentence of a minimum of 25 years to life for any current
felony conviction, even if the current offense was neither serious
nor violent.” (People v. Johnson (2015) 61 Cal.4th 674, 680.)
Then, voters recognized that the Three Strikes law had strayed
from their intent in passing it. Voters therefore passed
Proposition 36, the Three Strikes Reform Act of 2012 “to restore
the original intent of California’s Three Strikes law—imposing
life sentences for dangerous criminals like rapists, murderers,
and child molesters.” (Voter Information Guide, Gen. Elec. (Nov.
6, 2012) Prop. 36, § 1, p. 105.) To that end, a defendant now may
be sentenced as a third striker only if the new felony is serious or
violent.
Additional changes to recidivist laws are afoot. Courts now
have discretion to strike section 12022.5 and 12022.53 firearm
enhancements (Sen. Bill No. 620 (2017–2018 Reg. Sess.) §§ 1, 2)
and five-year enhancements under 667, subdivision (a) (Sen. Bill
No. 1393 (2017–2018 Reg. Sess.) §§ 1, 2). One-year prison priors
under section 667.5 are now limited to sexually violent offenses
(Sen. Bill No. 136 (2019–2020 Reg. Sess.) § 1). Health and Safety
Code section 11370.2 enhancements are now limited to prior
convictions for sales of narcotics involving a minor in violation of
Health and Safety Code section 11380 (Sen. Bill No. 180 (2017–
2018 Reg. Sess.) § 1).
Other changes implicate California’s cruel or unusual
jurisprudence. We have already observed the law’s fairly recent
evolution in how we treat juvenile offenders. Thus, the Eighth

26
Amendment prohibits imposing the death penalty on juveniles
(Roper v. Simmons (2005) 543 U.S. 551), LWOP on juveniles who
commit nonhomicide offenses (Graham v. Florida (2010) 560 U.S.
48), and mandatory LWOP for juveniles (Miller v. Alabama
(2012) 567 U.S. 460). Following that authority, our California
Supreme Court has held that a de facto LWOP sentence for
juvenile nonhomicide offenders violates the federal constitution
(People v. Caballero (2012) 55 Cal.4th 262), as does a 50-years-to-
life sentence for juvenile nonhomicide offenders (People v.
Contreras (2018) 4 Cal.5th 349, 356). Youth-related mitigating
factors must be considered before imposing LWOP on a juvenile
homicide offender. (§ 190.5; see generally People v. Gutierrez
(2014) 58 Cal.4th 1354.) In line with this evolution, our
Legislature established a parole eligibility mechanism that
provides a person serving a sentence for a crime committed as a
youth a meaningful opportunity for release upon a showing of
rehabilitation. (§ 3051.)
Legislators are redefining culpability for various crimes.
Senate Bill No. 1437 (Reg. Sess. 2017–2018) §§ 1–5) amended the
mens rea requirement for murder, restricted the circumstances
under which a person is liable for felony murder, and eliminated
the natural and probable consequences doctrine as it relates to
murder. A person convicted of murder under a felony murder or
natural and probable consequences theory may petition for
vacation of the conviction and resentencing if certain conditions
are met. (§ 1170.95.) Senate Bill No. 1437 is part of a broad
penal reform effort to ensure our murder laws fairly address a
person’s individual culpability and to reduce prison overcrowding
that partially resulted from lengthy sentences incommensurate to
the individual’s culpability. Senate Bill No. 1437 thus effects a

27
sea change in sentences that have been and will be imposed on
various offenders.
The sum of these changes show that legislators and courts
are reconsidering the length of sentences in different contexts to
decrease their severity. Insofar as these changes speak to the
second and third Lynch techniques, the changes suggest
disproportionality in Avila’s sentence, one that even as a
recidivist exceeds the punishment in California for second degree
murder, attempted premeditated murder, manslaughter, forcible
rape, and child molestation.
We are aware that lengthy sentences like the one imposed
on Avila have been common, especially when the Three Strikes
law was at play. However, common is not synonymous with
constitutional. What has become routine should not blunt our
constitutional senses to what shocks the conscience and offends
fundamental notions of human dignity. Crushing oranges, even
for the purpose of trying to steal or to extort money, is not
constitutionally worthy of the sentence imposed where, as here,
the defendant’s criminal history on close examination cannot
bear its share of such a sentence.
Life 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

28
institutional credibility and public confidence. In Avila’s case,
the time is now. 18
DISPOSITION
The sentence is vacated, and the matter is remanded for
resentencing with the direction to the trial court to strike two of
Rene Avila’s prior strike convictions and to reconsider his
sentence in light of the views expressed in this opinion. In all
other respects, the judgment is affirmed.
CERTIFIED FOR PARTIAL PUBLICATION.

DHANIDINA, J.

We concur:

EDMON, P. J.

EGERTON, J.

18 Because we remand for resentencing, we need not
address Avila’s contention that fines and assessments the trial
court imposed must be stricken under People v. Dueñas (2019) 30
Cal.App.5th 1157. Further, on remand Avila may raise Senate
Bill No. 1393, which allows a court to exercise its discretion to
strike or to dismiss a serious felony prior for sentencing purposes.
(Stats. 2018, ch. 1013, §§ 1, 2.)

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