Filed 8/3/21 P. v. Cisneros CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
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8.1115(a).
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B305366
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. KA118839
v.
RICHARD RAY CISNEROS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Jacqueline H. Lewis, Judge. Affirmed in
part, reversed in part, and remanded with directions.
Micah Reyner, under appointment by the Court of Appeal,
for Defendant and Appellant.
Matthew Rodriguez, Acting Attorney General, Lance E.
Winters, Chief Assistant Attorney General, Susan Sullivan
Pithey, Assistant Attorney General, Noah P. Hill and Kathy S.
Pomerantz, Deputy Attorneys General, for Plaintiff and
Respondent.
_______________________________________
INTRODUCTION
Defendant Richard Ray Cisneros was convicted of one count
of making a criminal threat. After Cisneros admitted two prior
strike convictions, the court sentenced him to 25 years to life in
prison. On appeal, Cisneros contends he did not voluntarily and
intelligently waive his constitutional rights when he admitted the
prior strike convictions. Cisneros also contends the court abused
its discretion when it refused to dismiss one of his strike
convictions. We conclude the record does not affirmatively show
Cisneros voluntarily and intelligently admitted his prior strike
convictions. We reverse the sentence and remand the matter for a
court trial and resentencing on the prior conviction allegations.
In all other respects, we affirm the judgment.
FACTUAL BACKGROUND
In July 2018, Cisneros was at his girlfriend’s apartment.
After drinking several shots of alcohol, the girlfriend told
Cisneros that she wanted to end their relationship. They started
arguing and Cisneros threatened to kill the girlfriend. At trial,
she claimed Cisneros then punched the back of her head and face
several times before grabbing a knife and holding it close to her
throat while continuing to threaten to kill her.
The girlfriend eventually escaped and called the police from
her neighbor’s apartment. By the time the police responded,
Cisneros had fled. The police searched the girlfriend’s apartment
but did not recover a knife.
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PROCEDURAL BACKGROUND
The People charged Cisneros with one count of making
criminal threats, a felony under Penal Code1 section 422. The
People alleged Cisneros personally used a knife during the
commission of the offense (§ 12022, subd. (b)(1)), and that he
suffered two prior convictions that qualified as strikes (§§ 667,
subds. (b)–(j), 1170.12) and serious felonies (§ 667, subd. (a)(1)).
A jury found Cisneros guilty of making criminal threats
and found not true the personal use of a knife allegation. At a
bifurcated hearing, Cisneros admitted the prior conviction
allegations. The court denied Cisneros’s motion to strike one of
his prior strike convictions, but it struck the prior serious felony
conviction enhancements under section 667, subdivision (a). The
court sentenced Cisneros to 25 years to life in prison.
Cisneros appeals.
DISCUSSION
1. Voluntary and Intelligent Waiver
Cisneros first contends he did not voluntarily and
intelligently waive his constitutional rights before admitting his
prior convictions. We conclude the record does not affirmatively
show Cisneros voluntarily and intelligently waived his
constitutional rights before admitting his prior convictions.
1.1. Relevant Background
The information alleged Cisneros suffered two prior strike
convictions: (1) a 1992 conviction for assault with intent to
commit rape (§ 220); and (2) a 2015 conviction for making a
criminal threat (§ 422).
1 All undesignated statutory references are to the Penal Code.
3
In mid-April 2019, while the jury was deliberating on the
underlying criminal threats charge in this case, the court asked
defense counsel if Cisneros intended to waive his right to a jury
trial on the prior conviction allegations. After defense counsel
responded in the affirmative, the court addressed Cisneros:
“[T]here’s two priors that have been alleged here.
When it comes to those priors, you have the right to a
jury to decide whether those priors had been
committed or not. You have a right to a jury trial on
that issue. You have a right to an attorney, which you
have. You have a right to confront and question any
evidence or witnesses that the District Attorney
would present against you. You have a right to
remain silent and cause the District Attorney to
prove this. You have a right to testify on your own
behalf if you so choose. You have a right to present
witnesses or evidence favorable to any defense you
might have regarding those issues.”
The court asked Cisneros if he understood his rights.
Cisneros responded, “Yes.” The court then asked, “do you wish to
waive those rights?” Again, Cisneros responded, “Yes.”
The court continued, “You are waiving your right to a jury
trial and understand that the court—it will be a court trial in
front of the judge. [¶] Do you understand that?” Cisneros
confirmed that he understood. The court then stated: “The court
does find that Mr. Cisneros has waived his right to a jury trial
knowingly and understandingly waived all of his rights as to the
priors.”
4
After the jury returned its guilty verdict, the parties agreed
to schedule the sentencing hearing for mid-July 2019. In July,
Cisneros asked to continue the sentencing hearing to October
2019, which the court agreed to do. The sentencing hearing was
continued again to December 2019 at Cisneros’s request, and
then to January 2020 by the parties’ agreement.
In January 2020, the parties again agreed to continue the
sentencing hearing, this time to early March 2020. At the
January hearing, the court stated that Cisneros has “a right to a
trial on your prior conviction. Trial still pending?” Defense
counsel, the same attorney who represented Cisneros at trial,
told the court that Cisneros had already “admitted the prior
conviction.” The court noted, “Minute order said matter continued
for probation sentencing on the prior. That must be the Romero2
motion.”
In early March 2020, the court held the sentencing hearing.
When the court asked the parties to begin “the hearing on the
priors,” defense counsel asked the court if it meant to hold a
hearing on Cisneros’s motion to strike one of his prior strike
convictions instead, again stating that Cisneros had already
admitted the prior convictions. The court replied: “I don’t recall
him admitting them. [¶] On the day of the jury trial, we chose
April 17th. He continued the matter for hearing on the priors and
sentencing until July 10th, and we have been continuing it ever
since. [¶] You can double check. I was pretty sure we put that
over. We waived the jury.” Defense counsel stated that she
thought the parties had resolved the prior conviction allegations
before the jury returned its verdict. The court explained: “I don’t
2 People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
5
have that in my notes, and I don’t have that in my minute order.”
The court and counsel then conferred off the record.
Immediately after the court and the parties went back on
the record, the prosecutor questioned Cisneros about his earliest
prior strike conviction: “[D]o you admit that you suffered a prior
conviction in case number LA010578 for violation of Penal Code
section 220 with the conviction date being on or about July 16th,
1992 out of Los Angeles Superior Court?” Cisneros responded,
“Yes.” The prosecutor then questioned Cisneros about his second
prior strike conviction: “[D]o you further admit that you suffered
a second conviction in case number BA389575 for violation of
Penal Code section 422, also a felony, with the conviction date on
or about June 6th, 2015 out of Los Angeles Superior Court?”
Cisneros confirmed he suffered that conviction as well.
The court accepted Cisneros’s admissions and found true
both prior strike conviction allegations.
1.2. Analysis
Before a court accepts a defendant’s admission that he
suffered a prior conviction, the defendant must be advised of and
waive his constitutional right to a jury trial, his right against
self-incrimination, and his right to confront and cross-examine
witnesses. (People v. Mosby (2004) 33 Cal.4th 353, 359–360
(Mosby).) The court also must advise the defendant of the penal
consequences of admitting the prior conviction. (In re Yurko
(1974) 10 Cal.3d 857, 860.) But any error in failing to advise the
defendant of the penal consequences of admitting a prior
conviction is waived if not raised at or before sentencing. (People
v. Wrice (1995) 38 Cal.App.4th 767, 770–771.)
A failure to fully advise a defendant of his constitutional
rights before he admits a prior conviction does not require
automatic reversal, however. (Mosby, supra, 33 Cal.4th at p. 361.)
6
Rather, “if the transcript does not reveal complete advisements
and waivers, the reviewing court must examine the record of ‘the
entire proceeding’ to assess whether the defendant’s admission of
the prior conviction was intelligent and voluntary in light of the
totality of circumstances.” (Ibid.; see also People v. Howard (1992)
1 Cal.4th 1132, 1178 [“The record must affirmatively
demonstrate that the plea was voluntary and intelligent under
the totality of the circumstances.”], disapproved on a different
ground in People v. Rhoades (2019) 8 Cal.5th 393, 425, fn. 12.)
In Mosby, the California Supreme Court held the defendant
voluntarily and intelligently admitted his prior conviction despite
not being fully advised of his constitutional rights as to the prior
conviction allegation. (Mosby, supra, 33 Cal.4th at pp. 358–364.)
Immediately after the jury returned its guilty verdict, the court
advised the defendant that he had a right to a jury trial on the
prior conviction allegation, but it did not advise the defendant of
his rights to confront and cross-examine witnesses and to remain
silent. (Id. at pp. 356, 358, 364.) The defendant then waived his
right to a jury trial and admitted the prior conviction. (Id. at pp.
358–359.)
The California Supreme Court rejected the defendant’s
argument that his admission of the prior conviction was not
voluntary or intelligent: “[D]efendant, who was represented by
counsel, had just undergone a jury trial at which he did not
testify, although his codefendant did. Thus, [defendant] not only
would have known of, but had just exercised, his right to remain
silent at trial, forcing the prosecution to prove he had [committed
the offense.] And, because he had, through counsel, confronted
witnesses at that immediately concluded trial, he would have
understood that at a trial he had the right to confrontation.”
(Mosby, supra, 33 Cal.4th at p. 364.)
7
The court also reasoned that the defendant’s prior
experience with the criminal justice system showed he
understood the extent of his rights in any trial on the prior
conviction allegation. (Mosby, supra, 33 Cal.4th at p. 365.)
Specifically, the court explained: “Here defendant’s prior
conviction was based on a plea of guilty, at which he would have
received [the necessary] advisements. … ‘[H]e knew he did not
have to admit [the prior conviction] but could have had a jury or
court trial, had just participated in a jury trial where he had
confronted witnesses and remained silent, and had experience in
pleading guilty in the past, namely, the very conviction that he
was now admitting.’ ” (Ibid.) In all, the court concluded the
totality of the circumstances affirmatively showed that the
defendant’s admission of his prior conviction was voluntary and
intelligent, despite the fact he was only advised of his right to a
jury trial. (Ibid.)
The court in People v. Lloyd (2015) 236 Cal.App.4th 49
(Lloyd), on the other hand, concluded that the defendant’s
admission of his prior convictions was not intelligent and
voluntary following an incomplete advisement of his
constitutional rights. In that case, while the jury was
deliberating, the defendant waived his right to a jury trial on the
prior prison term allegations before the court advised him of his
right to a court trial. (Id. at p. 59.) Seven months later, the trial
court conducted the sentencing hearing, at which the defendant,
who was now represented by a different attorney from the one
who represented him at trial, admitted the prior prison term
allegations. (Id. at pp. 52, 59.) Before the defendant admitted the
allegations, the court never advised him of his right to confront
and cross-examine witnesses or of his right to remain silent. (Id.
at pp. 59–60.)
8
The reviewing court concluded that, under the totality of
the circumstances, the defendant’s admission of the prior prison
term allegations was neither voluntary nor intelligent. (Lloyd,
supra, 236 Cal.App.4th at pp. 59–60.) The seven-month interval
between the trial and sentencing hearing, in conjunction with the
defendant’s change in counsel, precluded any inference that the
defendant was aware of the rights he had exercised at trial when
he admitted the prior prison term allegations. (Id. at p. 59.) Nor
was there any information in the record that showed the
defendant’s prior convictions stemmed from guilty pleas at which
he would have been advised of, and waived, his constitutional
rights. (Id. at p. 60.)
The record in this case does not affirmatively show
Cisneros voluntarily and intelligently admitted his prior
convictions. To be sure, Cisneros was advised of, and stated he
intended to waive, his right to a jury trial, his right to remain
silent, and his right to confront and cross-examine witnesses
during his colloquy with the court that occurred while the jury
was deliberating on the underlying criminal threats charge. But
that advisement took place almost 11 months before Cisneros
admitted his prior convictions, at which point he was not
readvised of, or asked to waive, any of his rights as they applied
to the prior conviction allegations. Thus, Cisneros’s admissions
did not come immediately after he had just gone through a trial
at which he exercised his right to remain silent and observed his
attorney confront and cross-examine the People’s witnesses. (See
Lloyd, supra, 236 Cal.App.4th at p. 53.)
In addition to the considerable delay between the
advisement and the admissions, the extent of Cisneros’s initial
waiver of his rights was not clear. While Cisneros waived his
right to a jury trial, the court told Cisneros that he was still
9
entitled to “a trial in front of the judge” on the prior conviction
allegations and that a court trial on those allegations would be
held on a later date. But when the court held the bifurcated
hearing nearly 11 months later, Cisneros was never advised that
he could still demand a court trial on the prior conviction
allegations before the court took his admissions. Nor was
Cisneros ever advised that his right to remain silent and right to
confront and cross-examine witnesses also applied to a court
trial. And, as we noted above, Cisneros’s attorney, who
represented him at trial, mistakenly told the court that Cisneros
had already admitted the prior convictions. Given that his own
counsel couldn’t remember what occurred nearly 11 months
earlier when Cisneros was last advised of his rights as they
pertain to the prior conviction allegations, we cannot conclude the
record “affirmatively” shows Cisneros intelligently and voluntary
waived his constitutional rights. (See Lloyd, supra, 236
Cal.App.4th at p. 59 [seven-month delay between trial and
admission of prior convictions defeats inference that defendant
was aware of any of the rights exercised at trial when he
admitted the convictions].)
The People contend we can infer Cisneros had a discussion
with his attorney about the nature and extent of his rights from
the fact that the court and the parties had an off-the-record
discussion immediately before Cisneros made his admissions. We
disagree. We have no record of what was said during that
conversation, “only that the conversation took place. It is
necessary to have an adequate record for review [citation] as this
ensures defendants know and understand the significance of the
constitutional rights they are waiving.” (People v.
Christian (2005) 125 Cal.App.4th 688, 698 (Christian).)
10
Nor can we infer that Cisneros would have been aware of
the extent of his rights as they pertain to the prior conviction
allegations based on his history in the criminal justice system.
While the record indicates that Cisneros suffered several felony
and misdemeanor convictions before he was tried in this case, the
record does not show that all those convictions were the result of
guilty or no contest pleas, during which Cisneros presumably
would have been advised of, and waived, the constitutional rights
at issue here. We also note that one of his prior strike convictions
is from 1992. The record also doesn’t indicate whether any of
Cisneros’s prior convictions followed a bench trial, from which we
could infer that he would have been aware of the extent of his
rights at a court trial on the prior conviction allegations.
(Christian, supra, 125 Cal.App.4th at pp. 697–698 [without
information about how the defendant’s prior convictions were
obtained, the court could not infer the defendant’s prior
experience with the criminal justice system “demonstrated his
present knowledge and understanding of his rights”].)
In short, the record does not affirmatively demonstrate that
Cisneros understood the rights he was waiving when he admitted
the prior convictions. We therefore reverse Cisneros’s sentence to
the extent it is based on the prior conviction allegations. On
remand, the court shall try the prior conviction allegations or,
following an adequate waiver of Cisneros’s constitutional rights,
accept an admission of the prior convictions.
11
2. The Motion to Strike a Prior Strike Conviction
Cisneros next contends the court abused its discretion
when it refused to strike one of his prior strike convictions. We
disagree.
2.1. Relevant Background
As noted above, the People alleged Cisneros suffered a
strike conviction in 1992 for assault with intent to commit rape (§
220) and another strike conviction in 2015 for making a criminal
threat (§ 422).
Cisneros moved to strike one of his prior strike convictions
(Romero motion). Cisneros outlined his background, noting that
from the age of 4 years old until he was 17 years old, he was
mostly under the supervision of a child welfare agency due to his
father’s issues with drug and alcohol abuse and his mother’s
unwillingness to care for him and his brother. While under the
agency’s supervision, Cisneros lived in various mental health
facilities and foster homes. Cisneros also filed a document
entitled “Supplemental Documentation for Sentencing Hearing,”
which included: (1) a psychological assessment of Cisneros
conducted over three days in late 2019 and early 2020
convictions; (2) letters confirming Cisneros was enrolled in
domestic violence and transgender empowerment classes while
he was in custody; and (3) letters requesting sentencing leniency
drafted by Cisneros’s aunt and Cisneros’s former foster parent.
Cisneros urged the court to strike one of his prior strike
convictions because he had a “very specialized upbringing” and
would still receive a considerable sentence under a “second strike
paradigm.”
The People opposed Cisneros’s Romero motion, arguing
that Cisneros has engaged in a continuous pattern of serious
12
criminal conduct since he suffered his first strike in 1992.
Specifically, the People pointed out that, in addition to his strike
convictions, Cisneros was also convicted of misdemeanor sexual
battery in 1992, felony grand theft in 1998, misdemeanor
embezzlement in 1998, and misdemeanor domestic violence in
2006. The People also argued that Cisneros’s two most recent
strikes—the underlying 2019 criminal threats conviction and the
2015 criminal threats conviction—were both similar crimes that
involved violent and egregious behavior.
The court denied Cisneros’s Romero motion. In addressing
the factors for dismissing a prior strike conviction, the court
found the underlying criminal threats offense was a “violent and
serious felony” and no less serious than Cisneros’s two prior
strike convictions. The court also noted that although the first
strike was committed when Cisneros was only 18 years old, he
has continued to engage in a pattern of criminal conduct without
any “lessening” in the risk he poses to society. After summarizing
the details of Cisneros’s upbringing, the court explained: “Things
seem to be as bad, if not worsening here as Mr. Cisneros ages. So
while the court has compassion for the fact that he came up
through the dependency system … his conduct here would
indicate to the court that the factors here in regards to refusing
to strike the strike far outweigh the factors in regards to
striking … .”
2.2. Applicable Law
In the interest of justice, a trial court may strike a
defendant’s prior strike convictions. (§ 1385; Romero, supra, 13
Cal.4th at pp. 529–530.) Before deciding to strike a prior
conviction, the court must consider “whether, in light of the
nature and circumstances of the defendant’s present felonies and
prior serious and/or violent felony convictions, and the
13
particulars of his 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 he had not
previously been convicted of one or more serious and/or violent
felonies.” (People v. Williams (1998) 17 Cal.4th 148, 161
(Williams).) The court must also consider “the defendant’s
constitutional rights and society’s interest in the prosecution of
crimes.” (People v. Johnson (2015) 61 Cal.4th 674, 688–689.)
We review a court’s denial of a motion to strike a prior
conviction for abuse of discretion. (People v. Carmony (2004) 33
Cal.4th 367, 376 (Carmony).) The defendant carries the burden to
show the court’s decision was irrational or arbitrary. (Id. at pp.
376–377.) A court abuses its discretion when it was unaware of
its discretion to strike, considered impermissible factors, failed to
consider relevant factors, or made a decision that, under the
circumstances of the case, was arbitrary, capricious, or patently
absurd. (Id. at p. 378.) Generally, the decision not to dismiss a
prior strike is an abuse of discretion only when the factors
outlined above “manifestly support the striking of a prior
conviction and no reasonable minds could differ.” (Ibid.) In other
words, the circumstances “must be extraordinary” for a defendant
with multiple prior strikes to fall outside the “spirit” of the Three
Strikes law. (Id. at p. 376.)
2.3. Analysis
The court did not abuse its discretion when it denied
Cisneros’s Romero motion. As a preliminary matter, the court
considered and discussed the proper factors before denying the
motion. That is, the court weighed the circumstances of the
underlying criminal threats offense in light of Cisneros’s prior
strike offenses, and it considered the particulars of Cisneros’s
background, including his difficult upbringing. (See Williams,
14
supra, 17 Cal.4th at p. 161 [outlining standard for determining
whether to dismiss a prior strike conviction].)
Relying on this Division’s recent decision in People v. Avila
(2020) 57 Cal.App.5th 1134 (Avila), Cisneros argues the
circumstances of his current offense, prior criminal history, and
his personal background are “extraordinary” such that he falls
outside the spirit of the Three Strikes law. Cisneros’s reliance on
Avila is misplaced.
In Avila, the defendant, who had suffered three prior strike
convictions, was convicted of attempted second degree robbery
and attempted extortion. (Avila, supra, 57 Cal.App.5th at pp.
1139–1140.) The defendant demanded money from two vendors
selling oranges, telling one of the vendors he had to pay rent “to
sell at the location.” (Ibid.) When the vendor refused, the
defendant squashed two bags of the vendor’s fruit and left. (Ibid.)
Avila held the trial court abused its discretion in denying
the defendant’s Romero motion. (Avila, supra, 57 Cal.App.5th at
pp. 1140–1152.) This court explained that neither the attempted
robbery nor the attempted extortion was a violent crime, nor did
the defendant engage in violent behavior or otherwise threaten
the victims. (Id. at p. 1146.) Instead, the defendant caused about
only $20 worth of property damage when the victims refused to
pay him money. (Ibid.) This court stressed that the defendant’s
“current offenses alone cannot justify the sentence imposed. It
bears repeating: he squashed oranges and was sentenced to life.”
(Id. at p. 1147.) In addition, all the defendant’s prior strike
convictions occurred nearly 30 years before the current
conviction. (Id. at p. 1148.) This court also considered the
defendant’s drug addiction, the fact that the defendant was 47
years old at the time his life sentence was imposed, and the
15
State’s recent trend in establishing more lenient sentencing
standards. (Id. at pp. 1150–1151.)
There are critical distinctions between the circumstances in
this case and those in Avila. First, unlike in Avila, Cisneros’s
most recent strike offense is very recent. While Cisneros was
convicted of his first strike in 1992, when he was 18 years old, he
suffered his second strike conviction in June 2015, only a little
more than three years before he committed the underlying
criminal threats offense in this case. In other words, even after
Cisneros became an adult, he continued to engage in a pattern of
serious criminal conduct. If anything, the frequency at which
Cisneros engages in criminal behavior has increased, not
decreased, since he suffered his first strike. (See Carmony, supra,
33 Cal.4th at pp. 378–379.)
Second, this is not a case where the defendant is being
sentenced to life in prison for merely “squashing oranges.” (Avila,
supra, 57 Cal.App.5th at p. 1147.) The circumstances of the
underlying offense here are far more serious. While making
criminal threats is defined as a serious, but not a violent, crime
for purposes of the Three Strikes law (see §§ 667.5, 1192.7, subd.
(c)(38)), Cisneros’s conduct was certainly violent. That is, he
verbally threatened to kill his girlfriend and acted in a physically
threatening manner toward her.
Third, while Cisneros was nearly the same age at the time
his sentence was imposed in this case (46 years old) as the
defendant in Avila (47 years old), that factor alone does not
render the court’s decision to deny Cisneros’s Romero motion an
abuse of discretion. (See People v. Strong (2001) 87 Cal.App.4th
328, 332 [a defendant’s “middle age, considered alone, cannot
take a defendant outside the spirt of the [Three Strikes] law”].)
As we just explained, the circumstances of the underlying offense
16
in this case were violent, and Cisneros has continued to engage in
serious criminal conduct throughout his adult life. Indeed, the
underlying criminal threats conviction in this case is the second
strike that Cisneros has been convicted of since he turned 40
years old. Thus, unlike the defendant in Avila, the severity of
Cisneros’s criminal record has not decreased with age. (See Avila,
supra, 57 Cal.App.5th at p. 1143.) In other words, Cisneros’s
current age does not remove him from the spirit of the Three
Strikes law.
In sum, the facts of this case and the circumstances of
Cisneros’s background and criminal history show a pattern of
criminal conduct that, at a minimum, has not diminished as
Cisneros has gotten older. The court, therefore, did not err in
finding Cisneros is not an “extraordinary” third-strike offender
who falls outside the spirit of the Three Strikes law. (Carmony,
supra, 33 Cal.4th at p. 376.)
17
DISPOSITION
Cisneros’s sentence is vacated and the matter is remanded
for a new trial and resentencing on the prior conviction
allegations. The judgment is affirmed in all other respects.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, Acting P. J.
WE CONCUR:
EGERTON, J.
KALRA, J.*
*Judge of the Los Angeles County Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
18