Filed 7/15/21 P. v. Shaw CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E075960
v. (Super.Ct.No. FVI17001556)
JOHNNY SHAW, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Debra Harris,
Judge. Affirmed with directions.
Kevin D. Sheehy, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Robin Urbanski and Genevieve
Herbert, Deputy Attorneys General, for Plaintiff and Respondent.
In a previous appeal, we affirmed defendant Johnny Shaw’s conviction on an
attempted robbery charge, but remanded for resentencing in light of recently enacted
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changes in the law relating to sentencing enhancements. (People v. Butler et al. (Mar. 10,
2020, E071471) [nonpub. opn.].) On remand, the trial court struck a number of
previously imposed enhancements and sentenced Shaw to an indeterminate term of 25
years to life. In this appeal, Shaw challenges his new sentence in several respects,
arguing that (1) the trial court abused its discretion by denying his renewed Romero
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motion ; (2) the sentence amounts to cruel and unusual punishment; and (3) the minute
order of the resentencing hearing and the abstract of judgment should be corrected to
accurately reflect the judgment.
The People concede, and we agree, that the resentencing minute order and abstract
of judgment should be corrected. We reject Shaw’s other arguments and affirm the
judgment.
I. BACKGROUND
Because the facts of this case were described in detail in our previous opinion, we
do not repeat them here, except to the extent necessary to address the issues now before
us. (See People v. Butler et al., supra, E071471.)
Shaw (together with his codefendant Kevin Lemont Butler, who is not a party to
this appeal) was accused of attempting to rob a gas station convenience store. The jury
rejected Shaw’s arguments that he had only been joking and found him guilty of one
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count of attempted robbery (Pen. Code , §§ 664, 211). In our previous opinion, we found
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People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
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Undesignated statutory references are to the Penal Code.
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that substantial evidence supported the jury’s conclusion that Shaw had the specific intent
to rob the store’s cashier, and that he took a direct, ineffectual act toward committing the
robbery. (See People v. Butler et al., supra, E071471.)
In bifurcated proceedings, the trial court found that Shaw had suffered four prior
serious felony convictions (§ 667, subd. (a)(1)), four strike priors (§§ 1170.12, subds. (a)-
(d), 667, subds. (b)-(i)), and three prison priors (§ 667.5, subd. (b)). It sentenced Shaw to
a total of 45 years to life, consisting of an indeterminate term of 25 years to life for the
attempted robbery conviction, plus four consecutive 5-year terms for his serious felony
priors. (See People v. Butler et al., supra, E071471.)
On appeal, we affirmed Shaw’s conviction, but remanded to the trial court with
directions to resentence Shaw. As relevant here, remand was required to allow the trial
court to exercise its new discretion under sections 667, subdivision (a)(1) and 1385, as
amended by Senate Bill No. 1393 (2017-2018 Reg. Sess.) to strike or dismiss a prior
serious felony conviction for sentencing purposes. (See People v. Butler et al., supra,
E071471.) We also ordered that Shaw’s prison prior enhancements, previously imposed
and stayed, be stricken pursuant to section 667.5, subdivision (b), as amended by Senate
Bill No. 136 (2019-2020 Reg. Sess.) (Senate Bill 136) (See People v. Butler et al., supra,
E071471.)
On remand, the trial court agreed to strike Shaw’s serious felony priors, but denied
his renewed Romero motion and resentenced him to a term of 25 years to life.
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II. DISCUSSION
A. Romero Motion
Shaw argues that the trial court abused its discretion by denying his renewed
Romero motion and imposing sentence pursuant to the three strikes law. In our previous
opinion, we found no abuse of discretion in the trial court’s decision to deny Shaw’s first
Romero motion. (See People v. Butler et al., supra, E071471.) Our previous analysis
continues to apply with equal force: “Shaw’s adult felony convictions included two
robbery convictions (§ 211), as well as evading a peace officer (§ 2800.2), assaulting a
peace officer or firefighter with a deadly weapon (§ 245, subd. (c)), and making terrorist
threats (§ 422) . . . . Although three of Shaw’s strike offenses were relatively remote in
time, the only substantial gap in his adult criminal record was attributable to his serving a
21-year prison sentence for one of his robbery convictions. The trial court expressly
considered the various mitigating factors raised by . . . Shaw, including [his] arguments
regarding the nature of the current offense and [his] role[] in it, and evidence of [his]
background[]. We find nothing arbitrary or irrational in the trial court’s decision not to
give those mitigating factors dispositive weight.” (People v. Butler et al., supra,
E071471.)
B. Cruel and Unusual Punishment
Shaw contends that his sentence of 25 years to life constitutes cruel and unusual
punishment in violation of his federal and state constitutional rights, particularly given
his age (59 at the time of resentencing), which means it is statistically likely that he will
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not live long enough to become eligible for parole. Relying primarily on Solem v. Helm
(1983) 463 U.S. 277 (Helm), he contends that his sentence is “grossly disproportionate”
and “[does] not fit the crime or the person.” We disagree, finding the sentence comports
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with constitutional requirements.
Both the United States Constitution and the California Constitution prohibit the
infliction of cruel and unusual punishments. (U.S. Const., 8th Amend.; Cal. Const., art. I,
§ 17.) Under both the federal and the state analyses, the starting point is a comparison
between the gravity of the offense and the severity of the sentence. (Graham v. Florida
(2010) 560 U.S. 48, 59 (Graham); In re Lynch (1972) 8 Cal.3d 410, 425.) In making this
comparison, however, we must “‘“grant substantial deference to the broad authority that
legislatures necessarily possess in determining the types and limits of punishments for
crimes.”’” (People v. Edwards (2019) 34 Cal.App.5th 183, 190-191.) Moreover, it is not
only the specifics of the current offense that are relevant: “Recidivism has long been
recognized as a legitimate basis for increased punishment.” (Ewing v. California (2003)
538 U.S. 11, 25.) Thus, “[i]n weighing the gravity of [a defendant’s] offense, we must
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We reserved for consideration with this appeal Shaw’s request that we take
judicial notice of a document entitled “United States Life Tables, 2017,” showing average
life expectancies by age, sex, and race. The request is granted as unopposed. (Cal. Rules
of Court, rule 8.54(c).)
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In the interest of judicial economy, we consider the merits of Shaw’s arguments
regarding cruel and unusual punishment, and decline to decide the People’s argument that
he forfeited the issue by failing to raise it at his resentencing. (See People v. Williams
(2000) 78 Cal.App.4th 1118, 1126 [addressing on appeal issue that would otherwise be
forfeited to “forestall a petition for writ of habeas corpus based on a claim of ineffectual
counsel”].)
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place on the scales not only his current felony, but also his long history of felony
recidivism.” (Id. at p. 29; see also In re Bolton (2019) 40 Cal.App.5th 611, 622 [“[T]hree
strikes sentences for less serious felonies have been routinely upheld against Eighth
Amendment attack”].)
We hold that Shaw’s sentence does not constitute cruel and unusual punishment.
No doubt, as Shaw emphasizes, his current offense was relatively non-violent, so far as
robberies go. Nevertheless, by definition, a robbery includes violence or the threat of
violence, and the jury rejected his trial arguments that his actions were no more than a
poorly-considered joke. As noted, moreover, his criminal record includes a long history
of serious felonies, including five strike offenses (three of which are robberies). We find
Shaw’s sentence to be well justified “by the State’s public-safety interest in
incapacitating and deterring recidivist felons, and amply supported by his own long,
serious criminal record.” (Ewing v. California, supra, 538 U.S. at pp. 29-30.)
Shaw’s comparison of this case to the facts of Helm, supra, 463 U.S. at p. 277, is
unpersuasive. In Helm, the defendant’s prior offenses were all non-violent, and none
were crimes against a person. (Id. at p. 280.) His current offense, triggering a sentence
of life without parole under a recidivist statute, was also relatively minor and non-violent:
“uttering a ‘no account’ check for $100.” (Id. at p. 281.) On those facts, the Supreme
Court held that the defendant had “received the penultimate sentence for relatively minor
criminal conduct,” and concluded that the sentence was prohibited by the Eighth
Amendment. (Id. at p. 303.) In contrast, Shaw’s long history of violent criminal
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conduct, including his current offense, is not reasonably characterized as relatively minor.
There is therefore nothing grossly disproportionate about his sentence.
Shaw also quotes Helm for the proposition that he “has been treated more harshly
than other criminals in the State who have committed more serious crimes.” (See Helm,
supra, 463 U.S. at p. 303.) He has not attempted, however, to show how his punishment
compares to sentences received by other, similarly situated offenders (that is, with
similarly serious criminal histories) in California or other jurisdictions. (See Graham,
supra, 560 U.S. at p.60 [describing “comparative analysis” used to “‘validate[] an initial
judgment that [the] sentence is grossly disproportionate]; In re Lynch, supra, 8 Cal.3d at
pp. 426-427 [describing similar comparative analysis under state law].)
We conclude that under either California or federal law, Shaw has failed to
demonstrate that his sentence is unconstitutionally cruel and unusual.
C. Errors in Trial Court’s Minutes and Abstract of Judgment
At resentencing, the trial court complied with our direction that it strike Shaw’s
prison prior enhancements, previously imposed but stayed, in light of Senate Bill 136.
This aspect of the judgment, however, was not reflected in the trial court’s minute order
of Shaw’s resentencing hearing. Shaw’s amended abstract of judgment continues to
show these enhancements as imposed but stayed. The People concede, and we agree, that
these clerical errors should be corrected. (See People v. Mitchell (2001) 26 Cal.4th 181,
185 [“An abstract of judgment is not the judgment of conviction; it does not control if
different from the trial court’s oral judgment”].)
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III. DISPOSITION
The judgment is affirmed. We remand to the trial court with directions to correct
the resentencing minute order and abstract of judgment to reflect that the enhancements
previously imposed against Shaw under former section 667.5, subdivision (b) have been
stricken, and to forward a certified copy of the corrected abstract of judgment to the
Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAPHAEL
J.
We concur:
CODRINGTON
Acting P. J.
SLOUGH
J.
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