P. v. Vaughn

Filed 5/9/19 P. v. Vaughn CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
WALLACE VAUGHN et al.,
Defendants and Appellants.
F074750
(Kern Super. Ct. Nos. DF012306A
& DF012306B)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Brian M.
McNamara, Judge.
James Bisnow, under appointment by the Court of Appeal, for Defendant and
Appellant Wallace Vaughn.
Lauren E. Dodge, under appointment by the Court of Appeal, for Defendant and
Appellant Terry Richardson.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Galen N.
Farris, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-

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2.
Defendants Richardson and Vaughn were convicted of possessing controlled
substances in prison after contraband was found in their joint cell. In the same trial,
Richardson was convicted of a second count based on a separate instance of possession in
prison.
They raise several challenges to their convictions and to Richardson’s sentence.
We accept the Attorney General’s concession that one of Richardson’s “strike” priors
must be dismissed, but otherwise reject defendants’ claims and affirm.
BACKGROUND
Charges
In an amended information filed October 25, 2016, the Kern County District
Attorney charged Richardson and Vaughn with knowing possession of heroin and/or
marijuana in prison (count 1; Pen. Code, § 4573.6);1 and charged Richardson alone with
another count of knowingly possessing marijuana in prison (count 2; § 4573.6.) The
information alleged Richardson had suffered three prior “strike” convictions (§§ 667,
subds. (c)–(j), 1170.12, subds. (a)–(e)) and two prior prison terms (§ 667.5, subd. (b)).
The information alleged Vaughn had suffered nine prior “strike” convictions. (§§ 667,
subds. (c)–(j), 1170.12, subds. (a)–(e))
Convictions
A jury convicted defendants as charged. In a bifurcated proceeding, the court
found all of the enhancement allegations true.
Sentencing
Richardson moved to dismiss two of his “strike” priors under section 1385. (See
People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).) !(CT 430)! The
court denied the motion.
1 All further statutory references are to the Penal Code unless otherwise stated.

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3.
On count 1, the court sentenced Richardson to a term of 25 years to life, plus 2
years for the two prior prison term enhancements. On count 2, the court sentenced
Richardson to a consecutive term of 25 years to life, plus 2 years for the two prior prison
term enhancements.
The court sentenced Vaughn to a term of 25 years to life.
Both defendants’ sentences ran consecutive to the terms they were already serving
in prison.2
FACTS
I. Facts Concerning Count 1 (Against both Defendants)
Raul Hernandez worked as a correctional officer at Kern Valley State Prison. On
September 3, 2014, Officer Hernandez searched the cell assigned to Vaughn and
Richardson. Vaughn and Richardson were the only individuals in the cell. Vaughn and
Richardson were near the front of the cell, and Hernandez observed Richardson move
behind Vaughn. Vaughn and Richardson were escorted out of the cell for the search.
During the search, Officer Hernandez located a cell phone and three bindles on top
of a lower locker in the cell. Hernandez labeled the bindles RH02, RH6, and RH7. The
cell phone was within about one inch of one of the bindles.
In the right side of an upper locker, Officer Hernandez located two more bindles;
he labeled them RH08 and RH09. In the left side of the upper locker, Hernandez found
another bindle and labeled it RH03. In the lower left locker, Hernandez found another
bindle and labeled it RH05. Another bindle was found on the floor.
Officer Hernandez believed RH02 contained heroin. An on-site field test yielded
a presumptive positive for heroin. Subsequent testing confirmed the results.
2 Richardson and the Attorney General state that the sentence Richardson was
already serving was a 48-year-to-life term.

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4.
Officer Hernandez believed bindles RH03 through RH09 all contained marijuana.
On-site field tests yielded a presumptive positive for marijuana in all seven samples. A
subsequent examination indicated that RH03 through RH09 all contained the same
substance, and a microscopic examination of the substance in RH05 indicated it was
marijuana.
After the search, Officer Hernandez went to where Richardson and Vaughn had
been taken. Hernandez told them a cell phone and bindles of suspected marijuana had
been found in their cell. Richardson said the marijuana was his. Vaughn said the cell
phone was his.
II. Facts Concerning Count 2 (Against Richardson Only)
On May 24, 2015, Correctional Sergeant John Melvin was working at Kern Valley
State Prison. Around 1:15 p.m. that day, Melvin was supervising visits between inmates
and their visitors. Melvin watched monitors recording the visiting room. Melvin saw
Richardson with his hand inside his pants. Another officer described Richardson as
“making movements like towards his rectal cavity.” Melvin approached Richardson and
asked if he had any contraband. Richardson just looked at Melvin and smiled. Melvin
asked Richardson if he was going to hand over the contraband or be placed on contraband
watch. (Contraband watch is when an inmate’s arms, legs and waistband are taped up3,
and the inmate is constantly monitored so that contraband can be retrieved, “be it
voluntarily or through bowel movement.”) Richardson replied, “I’m just going to ride it
out Serg.”
Correctional Officer Rigoberto Estrada escorted Richardson to an “inmate strip
down room.” Estrada asked for the contraband and again Richardson said he was going
to “ride it out.” Correctional Officer Manuel Ortiz was assigned to contraband watch of
3 The arms and legs are taped up to prevent the inmate from tampering with any
“evidence.” A break in the tape would reveal that the inmate tried to reach for
something.

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5.
Richardson. When Ortiz began to tape Richardson’s waistband, Richardson said he did
not want to be on contraband watch and that he had two bindles. Ortiz asked what was in
the bindles, and Richardson replied, “[W]eed.” Richardson defecated one of the bindles,
and the second bindle was recovered later in a hospital toilet after Richardson had used it.
One of the bindles was later determined to have hashish inside, the other had marijuana
inside.
DISCUSSION
I. Defendants’ Statements to Officer Hernandez were not Made in the Course of
an Interrogation; No Miranda Warnings were Required
Defendants argue their statements claiming ownership of the contraband at issue
in count 1 were inadmissible because they were not Mirandized. (See Miranda v.
Arizona (1966) 384 U.S. 436 (Miranda).)
A. Background
In order to address the Miranda issues before trial, the court held a hearing under
Evidence Code section 402.
Officer Hernandez testified at the hearing. He explained that defendants were
escorted to the shower area of the prison while their cell was searched, for safety and
security reasons. The shower area is four to five feet wide by six feet deep. It has a door
with grill bars. Defendants were handcuffed at the wrists, also for safety reasons. Their
feet were not shackled.
After the contraband was found in the cell, Officer Hernandez came to the shower
area. Defendants had been there “maybe half an hour.” The door to the shower area was
closed. Hernandez told defendants bindles with suspected marijuana and a cell phone
had been found in their cell. Right away, Richardson said the marijuana was his, and
Vaughn said the cell phone was his.
Officer Hernandez testified he had not asked defendants any questions about the
contraband. Hernandez did not tell the defendants contraband was found in order to elicit

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6.
a response such as, “That’s mine,” or “I don’t know anything about that.”4 Rather,
Hernandez told the defendants about the contraband to “avoid further questions by them
while I’m escorting them up to the program office.” It helps avoid confrontation when
the inmates know why they are going to the program office and rehoused in
administrative segregation.
The trial court ultimately ruled in favor of the prosecution and the defendants’
statements were admitted.
B. Analysis
a. Two Prongs of Miranda
“ ‘Miranda requires that a criminal suspect be admonished of specified Fifth
Amendment rights.’ ” (People v. Whitfield (1996) 46 Cal.App.4th 947, 953.) “ ‘But in
order to invoke its protections, a suspect must be subjected to custodial interrogation ....’
[Citation.]” (Ibid.) “ ‘Thus two requirements must be met before Miranda is applicable;
the suspect must be in “custody,” and the questioning must meet the legal definition of
“interrogation.” ’ [Citation].”5 (Ibid.)
The Attorney General argues that neither requirement was met here. We conclude
defendants did not make the statements during an “interrogation” and therefore do not
reach the issue of whether the interaction was “custodial” under Miranda.
b. Defendants were not Subjected to an Interrogation
Not all statements made after the defendant is taken into custody are considered
the product of interrogation. (Rhode Island v. Innis (1980) 446 U.S. 291, 299.) An
4 Hernandez testified that he “always” would tell inmates when contraband was
found in their cell. Hernandez was then asked, “[W]hen you always do that, does the
person you’re talking to usually respond to you and say either I don’t know anything
about that or yeah that’s mine?” Hernandez responded, “I’d say 50/50.”
5 The fact that defendant is incarcerated is not dispositive of the “custodial” prong.
(See Cervantes v. Walker (9th Cir. 1978) 589 F.2d 424, 427–429.)

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7.
interrogation occurs when a person in custody is subjected to either express questioning
or its functional equivalent.6 (Id. at pp. 300–301.)
Here, defendants were not subjected to either express questioning or a functional
equivalent. Officer Hernandez simply explained what had been found in defendants’ cell.
Hernandez essentially testified that he informed the defendants of the discovery of
contraband, so they would know why they were being taken to the program office and
administrative segregation. Hernandez did not ask the defendants any questions.7 Yet,
they voluntarily claimed ownership of the contraband.
We find instructive the opinion in U.S. v. Payne (4th Cir. 1992) 954 F.2d 199
(Payne). In that case, the defendant was arrested8 and subsequently driven between two
cities by several FBI agents. (Id. at pp. 199, 201.) During the ride, an FBI agent told the
defendant, “ ‘They found a gun at your house.’ ” (Id. at p. 201.) The defendant replied,
“ ‘I just had it for my protection.’ ” (Ibid.)
The Court of Appeal held the defendant’s statement had not been made during an
interrogation. The appellate court observed that the FBI agent’s statement “ ‘was not one
that sought or required a response.’ ” (Payne, supra, 954 F.2d at p. 203.) Nor was the
6 Thus, “ ‘interrogation’ under Miranda refers not only to express questioning, but
also to any words or actions on the part of police (other than those normally attendant to
arrest and custody) that the police should know are reasonably likely to elicit an
incriminating response from the suspect.” (Rhode Island v. Innis, supra, 466 U.S. at
p. 301, fns. omitted.)
7 This case is different from People v. Davis (2005) 36 Cal.4th 510 (Davis), cited
by Richardson, where law enforcement asked defendant, “ ‘Alright remember that
Uzi?’ ” (Id. at p. 553.) !(RAOB 28)!
8 In Payne, the defendant was initially Mirandized and invoked his right to
counsel. (Payne, supra, 954 F.2d at p. 201.) However, “interrogation as well as
reinterrogation following an invocation of rights” are both defined as “express
questioning and its ‘functional equivalent.’ [Citation.]” (People v. Sims (1993) 5 Cal.4th
405, 440, parentheses omitted.) Thus, while Payne was apparently looking at whether
the FBI agent’s conduct constituted a reinterrogation, we do not see that as materially
different from determining whether there was an initial “interrogation” here.

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8.
defendant “ ‘subjected to compelling influences, psychological ploys, or direct
questioning.’ [Citation.]” (Ibid.)
Similarly, Officer Hernandez’s statement to defendants did not seek or require a
response. Nor were defendants otherwise subjected to ploys9 or questioning. We
conclude their statements were not made during an interrogation and, therefore, Miranda
warnings were not required.
II. The Trial Court did not Abuse its Discretion in Declining to Sever Trial of
Counts One and Two
Before trial began, defendants moved to sever the trial of counts one and two. The
trial court denied the motion.
A. Law of Severance
A trial court, “in the interests of justice and for good cause shown, may in its
discretion order that the different offenses or counts set forth in the accusatory pleading
be tried separately ….” (§ 954.)
Where joinder is proper under section 954, “ ‘[t]he burden is on the party seeking
severance to clearly establish that there is a substantial danger of prejudice requiring that
the charges be separately tried.’ [Citation.]” (People v. Gomez (2018) 6 Cal.5th 243,
275.) “In determining whether a court abused its discretion in declining to sever properly
9 Thus, People v. Harris (1989) 211 Cal.App.3d 640, cited by Vaughn, is not on
point because it involved a law enforcement officer making a “prodding” invitation for
the defendant to discuss the crime.
And, in People v. Sims, supra, 5 Cal.4th 405, the law enforcement officer
“indirectly accused defendant of personally shooting the victims.” (Davis, supra, 36
Cal.4th at p. 554–555.) Here, Officer Hernandez merely informed defendants of what
had been found so that they would know why they were being taking to the program
office.
Richardson argues in this reply brief that the “atmosphere” of the encounter
“undermine[d]” his will to resist and compelled him to speak. We disagree with this
characterization.

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9.
joined charges, we first consider ‘the cross-admissibility of the evidence in hypothetical
separate trials.’ [Citation.]” (Ibid.) “If the evidence is cross-admissible, then this ‘is
normally sufficient to dispel any suggestion of prejudice and to justify a trial court’s
refusal to sever properly joined charges.’ [Citation.]” (Id. at pp. 275–276.) If not,
joinder may still be appropriate. The court should consider several factors, such as
whether any of the charges are unusually likely to inflame the jury, a weak case is being
joined with a strong case or with another weak case, or any one of the charges carries the
death penalty or joinder would turn the matter into a capital case. (Ibid.)
“In reviewing this claim, we apply the familiar standard of review providing that
the trial court’s ruling may be reversed only if the court has abused its discretion.
[Citations.]” (People v. Bradford (1997) 15 Cal.4th 1229, 1315 (Bradford).) “An abuse
of discretion may be found when the trial court’s ruling ‘ “falls outside the bounds of
reason.” ’ [Citation.]” (Ibid.)
We conclude that the trial court reasonably determined that cross-admissible
evidence would likely be adduced at a joint trial, and therefore did not abuse its discretion
in denying the request for severance.10
Cross-admissibility is when “evidence on each of the joined charges would have
been admissible, under Evidence Code section 1101, in separate trials on the others.”
(Bradford, supra, 15 Cal.4th at pp. 1315–1316.) Consequently, the question here is
whether evidence of count 1 (relating to the contraband found in the joint prison cell)
would have been admissible under Evidence Code section 1101 in a separate trial on
count 2 (Richardson’s possession of contraband in his rectum), and vice-versa.
10 “Having concluded that the trial court correctly determined the issue of cross-
admissibility, we need not analyze the other factors ….” (Bradford, supra, 15 Cal.4th at
p. 1317.)

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10.
B. Admissibility of Evidence Under Evidence Code Section 1101
Evidence Code section 1101 generally renders inadmissible evidence of a person’s
character when offered to prove his or her conduct on a specified occasion. (Evid. Code,
§ 1101, subd. (a).) However, evidence that a person committed an uncharged crime is
admissible when offered to prove a fact like “motive, opportunity, intent, preparation,
plan, knowledge, identity, absence of mistake or accident,” etc., rather than to prove the
person’s “disposition to commit” such an act. (Evid. Code, § 1101, subd. (b).)
C. Application
Here, both counts charged violations of section 4573.6, which prohibits any person
from “knowingly” possessing certain controlled substances, drug paraphernalia, etc.
(§ 4573.6, subd. (a).) The fact that Richardson possessed marijuana on one occasion is
relevant to a charge that he possessed marijuana on a different occasion because it raises
the inference the subsequent possession was “knowingly” done. That is, the uncharged
possession raises the inference that Richardson would have known marijuana is a
controlled substance that was illegal to possess in prison. Such evidence is admissible
under Evidence Code section 110111 because it goes to “knowledge” rather than criminal
disposition. Because the evidence of each count would have been admissible in a
separate trial on the other, cross-admissibility is established. The court was within its
discretion to deny severance on that basis.
III. There was Sufficient Evidence of Constructive Possession to Support
Vaughn’s Conviction
Vaughn argues there was no substantial evidence supporting his conviction on
11 Richardson argues that the evidence of one prison possession nine months apart
from another prison possession would have been excluded in a separate trial under
Evidence Code section 352. But the question on cross-admissibility centers on Evidence
Code section 1101. Other concerns, like the potential for undue prejudice, etc., are
addressed by the other severance factors. However, those factors only come into play
when cross-admissibility under Evidence Code section 1101 is not established.

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11.
count 1.
A. Substantial Evidence Review
“In evaluating a claim regarding the sufficiency of the evidence, we review the
record ‘in the light most favorable to the judgment below to determine whether it
discloses substantial evidence – that is, evidence which is reasonable, credible, and of
solid value – such that a reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt.’ [Citation.]” (People v. Westerfield (2019) 6 Cal.5th 632, 713.)
“ ‘The standard of review is the same in cases in which the prosecution relies mainly on
circumstantial evidence.’ [Citations.] ‘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.’ [Citation.]” (Ibid.)
B. Elements of Section 4573.6
The elements of violating section 4573.6 as charged here are (1) that the defendant
possessed a substance in prison; (2) defendant knew he possessed the substance;
(3) defendant knew the substance was a controlled substance and (4) that the substance
was in a “usable amount.” (See People v. Berg (2018) 23 Cal.App.5th 959, 964, citing
People v. Carrasco (1981) 118 Cal.App.3d 936, 944–948.) Vaughn argues there was
insufficient evidence of the possession element.
C. Possession Element
Possession of a narcotic can be physical or constructive. (See People v. Newman
(1971) 5 Cal.3d 48, 52, disapproved on other grounds by People v. Daniels (1975) 14
Cal.3d 857, 862.) “Constructive possession occurs when the accused maintains control
or a right to control the contraband; possession may be imputed when the contraband is
found in a place which is immediately and exclusively accessible to the accused and
subject to his dominion and control, or to the joint dominion and control of the accused

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12.
and another. [Citation.] The elements of unlawful possession may be established by
circumstantial evidence and any reasonable inferences drawn from such evidence.
[Citation.]” (Ibid.)
D. Application
Here, the contraband was found in a cell occupied only by Vaughn and
Richardson, right next to Vaughn’s cell phone. Thus, the contraband “found in a place
which [was] immediately and exclusively accessible to [Vaughn] and subject to … the
joint dominion and control of [Vaughn] and another [i.e., Richardson].” (People v.
Newman, supra, 5 Cal.3d at p. 52.) Therefore, constructive possession “may be imputed”
to Vaughn. (Ibid.)
Vaughn fights this straightforward conclusion by pointing out other possibilities.
For example, Vaughn notes that the narcotics could have been put down after Vaughn
placed his cell phone there, or that Vaughn might not have noticed the bindles when he
placed his cell phone there. Vaughn also implies that Richardson could have strong-
armed him into an unfair sharing agreement whereby Richardson controlled most or all of
the locker space in the cell. Additionally, Richardson admitted the narcotics were his, but
Vaughn only admitted the cell phone was his. But these considerations are irrelevant
under out standard of review. Since substantial evidence supported a finding that Vaughn
constructively possessed the narcotics, it is irrelevant that some evidence would have
supported a contrary finding. “ ‘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.’ [Citation.]” (People v.
Westerfield, supra, 6 Cal.5th at p. 713.)

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13.
IV. One of Richardson’s Strikes Must be Dismissed; the Court did not Err in
Refusing to Dismiss Additional Strikes
The court found that Richardson had suffered three prior strike convictions: (1) a
May 6, 2003, conviction for robbery; (2) a February 11, 2010, conviction for attempted
murder; and (3) a February 11, 2010, conviction for assault with a deadly weapon.
Before sentencing, Richardson filed a Romero motion, requesting that the court
strike two of his strike priors. Defendant argued that he was convicted of the “extremely
minor felony” of possessing marijuana in prison, which is no longer a crime. The
prosecutor opposed the request, emphasizing defendant’s criminal history.
A. Concession
The Attorney General concedes that one of the strikes should be dismissed. We
accept the concession.12 The robbery and attempted murder strikes were based on the
same act against the same victim. (See People v. Richardson (Nov. 14, 2011, B225327)
[nonpub. opn.].) Therefore, one of them must be dismissed. (People v. Vargas (2014) 59
Cal.4th 635, 638–639.)
However, the parties still disagree as to whether the court should have dismissed
another one of Richardson’s three strikes.
B. Trial Court Discretion and Appellate Review of Romero Motions
Sentencing courts have discretion to dismiss a “strike” (see generally Romero,
supra, 13 Cal.4th 497), but that discretion is of a “limited nature.” (People v. Bonnetta
(2009) 46 Cal.4th 143, 153.) The court “must consider whether, in light of the nature and
circumstances of his present felonies and prior serious and/or violent felony convictions,
and the particulars of his background, character, and prospects, the defendant may be
deemed outside the scheme’s spirit ….” (People v. Williams (1998) 17 Cal.4th 148, 161.)
A sentencing court may not dismiss a strike “ ‘guided solely by a personal antipathy for
12 This is the only error we find on appeal. Consequently, Richardson’s claim of
cumulative error is meritless.

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14.
the effect that the three strikes law would have on [a] defendant ….’ ” (Romero, supra,
13 Cal.4th at p. 531.)
We review a sentencing court’s decision on a Romero motion for abuse of
discretion. (Romero, supra, 13 Cal.4th at p. 532.) “[A] trial court does not abuse its
discretion unless its decision is so irrational or arbitrary that no reasonable person could
agree with it.” (People v. Carmony (2004) 33 Cal.4th 367, 377.)
C. The Trial Court’s Comments do not Indicate it Misunderstood its
Discretion
Richardson argues that comments made by the court at sentencing indicate that it
was unaware of the scope of its discretion to dismiss Richardson’s strikes.
At the hearing on the Romero motion, the prosecutor’s entire argument centered
around defendant’s criminal history. Defense counsel noted that Richardson’s first
anticipated chance at parole would be when he was 73 years old.
The trial court ruled as follows,
“Let me just share with you some comments by the Court on this
issue. I did have a brief meeting with [the author of the probation report].
Again, thank you. It certainly considers [sic] some options in this case in
terms of the overall picture, but in terms of where the Court got to in the
end it came back to the issue that this happened in the state prison, which
is – you all said it’s just marijuana, et cetera, et cetera, but the problem is
where it happened and so – and what it could mean and again we can’t
speculate that would be totally unfair against the defendant in and of itself.
But the issue here is the situation has consequences as pointed out by [the
prosecutor.] The gentlemen’s record certainly puts us in the position we’re
in. It’s not something that the court has done or anything like that. In
addition, I would just like to comment to the two gentlemen during the trial.
I would like to say that when I did read the reports in the case, it didn’t
reflect how they behaved throughout the trial in terms of these people, so
I’m saddened by what I read and it’s just a fact of life and if I could have
done it. I certainly would have done it but it is what it is at this point,
gentlemen, but your behavior, the way you work with your attorneys, the
respect you had for the jury, everything, I can only commend you on that,
but I have to do what I have to do as a judge within this case.

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15.
“So with that, [defense counsel], good work on behalf of your client
as usual. I’ve considered the [Romero] motion presented by the defense.
There’s no response in this case filed by the prosecution but certainly
argued. I’ve considered current charges against the defendant. I did take
in … I can certainly see a difference in terms of the place it happened.
Defendant’s criminal record, background, prospects. Here and again, I
mentioned the 73. It’s just sad. Just sad. In the interest of justice and at
this time the Court finds the defendant not outside the spirits of the Three
Strikes Law and denies the defense motion at this time.” (Italics added.)
Richardson says the court’s statements indicate it did not understand the scope of
its discretion. We disagree. The court essentially related that while it was saddened or
otherwise may have preferred a different outcome, it was still compelled to deny the
motion because Richardson did not fall outside the spirit of the “Three Strikes” law.
Contrary to Richardson’s claim, these comments indicate the court properly understood
that it could not dismiss a strike merely because it may have wanted to. A court may not
rule on a Romero motion “ ‘guided solely by a personal antipathy for the effect that the
three strikes law would have on [a] defendant ….’ ” (Romero, supra, 13 Cal.4th at
p. 531.) The court’s expression that it was “saddened” does not conflict with its decision
that the “interest of justice” did not warrant dismissal of the strikes. The court’s
comments do not reflect a misunderstanding as to the scope of its discretion.
D. Court’s Brief Mention of “Background” and “Prospects” Likely Referred
to Criminal Record
Richardson next contends that the court’s reliance on his “background” and
“prospects” was improper because those factors are unsupported by the record. He says
the “probation report contained no information about appellant’s education, family,
marital status, alcohol or drug use, health or any other information.”
First, we note that the import of the court’s reference to “background” and
“prospects” was ambiguous. The Court said,
“I’ve considered current charges against the defendant. I did take in … I
can certainly see a difference in terms of the place it happened.
Defendant’s criminal record, background, prospects. Here and again, I

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16.
mentioned the 73. It’s just sad. Just sad. In the interest of justice and at
this time the Court finds the defendant not outside the spirits of the Three
Strikes Law and denies the defense motion at this time.” (Italics added.)
Richardson’s argument presumes that the court’s reference to “background” and
“prospects” concerned aspects of his past other than his criminal history. Given the
prosecutor’s argument concerning Richardson’s criminal background, and defense
counsel’s observation that Richardson was already ineligible for parole until he was 73
years old, it seems more likely that the court was referring to defendant’s “background”
of criminal behavior and how the existing sentence arising from that history affects his
“prospects” going forward.
E. Trial Court’s Reliance on Richardson’s Criminal History was
Appropriate
Richardson argues the court’s reliance on his criminal history, “considered in light
of the minor nature of the current offenses,” does not support the ruling. We disagree.
Richardson was convicted of robbery (§ 211) in 2001 and 2003, possession of a
controlled substance (Health & Saf. Code, § 11350) in 2006, possession of a firearm as a
felon, assault with a deadly weapon, and attempted murder in 2009 (§§ 187, subd. (a),
664 & 245, subd. (a); former § 12021.) This is a substantial criminal history and the
court was entitled to rely upon it heavily.
Richardson notes that in People v. Garcia (1999) 20 Cal.4th 490, the Supreme
Court observed a sentencing court “might … be justified in striking prior conviction
allegations with respect to a relatively minor current felony, while considering those prior
convictions with respect to a serious or violent current felony.” (Id. at p. 499.) We agree.
And if the sentencing court in this case had chosen to dismiss one or two of Richardson’s
strikes because of the arguably “minor” nature of the present offense, we probably would
have affirmed that decision as well.13 But we cannot say the decision the court made
13 We readily acknowledge that Richardson’s sentence is substantial in relation to
the crime of possessing narcotics in prison. Indeed, we may have granted Richardson’s

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17.
here was “so irrational or arbitrary that no reasonable person could agree with it.”
(People v. Carmony, supra, 33 Cal.4th at p. 377.)
F. Location of Drug Possession not Sole Basis of Sentence
Richardson points to the trial court’s concern that the drug possession in this case
took place in a prison. He argues that this fact “alone” does not justify a 50-year-to-life
sentence. We agree. But the sentence is not based on that fact alone – it is also based on
Richardson’s substantial criminal history.
V. Richardson’s Sentence is not Cruel and Unusual under the State and Federal
Constitutions
Richardson contends his sentence of 50 years to life in prison is cruel and unusual
under the federal and state constitutions.14
Romero motion if we sat as a sentencing court. But even if we would have exercised our
discretion differently, that does not mean the trial court abused its discretion by reaching
another conclusion. “ ‘[I]t is not enough to show that reasonable people might disagree
about whether to strike one or more’ ” prior conviction allegations.” (People v.
Carmony, supra, 33 Cal.4th at p. 378.) If the sentencing court’s decision is not arbitrary,
capricious or manifestly absurd, we affirm that ruling “ ‘even if we might have ruled
differently in the first instance.’ ” (Ibid.)
14 Vaughn filed his opening brief before Richardson. Vaughn raised several issues
and concluded by saying he “hereby joins in all issues not raised by himself but raised by
co-appellant Terry Richardson which may accrue to appellant’s benefit.” Richardson
subsequently filed his brief, which raised some overlapping issues, but also challenged
his own sentence on the grounds that it was cruel and unusual. Vaughn did not file a
reply brief.
Because Vaughn’s joinder was made without knowing what arguments
Richardson would present, it is unclear whether Vaughn believes he has a valid claim of
cruel and unusual punishment. Even assuming Vaughn does wish to present a claim of
cruel and unusual punishment, his joinder would not satisfy his burden on appeal.
Analysis of such a claim – especially as it relates to recidivism and criminal history – is
highly individualized. To the extent Vaughn would have wanted to raise a claim of cruel
and unusual punishment, his reliance solely on Richardson’s arguments and reasoning “is
insufficient to satisfy his burden on appeal.” (People v. Nero (2010) 181 Cal.App.4th
504, 510, fn. 11.)

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18.
The federal and state constitutions prohibit cruel and unusual punishment. (See
U.S. Const., 8th Amend.; Cal. Const., art. I, § 17.) Under the federal constitution,
“criminal sentence[s] must be proportionate to the crime for which the defendant has
been convicted.” (Solem v. Helm (1983) 463 U.S. 277, 290 (Helm).) Under the state
constitution, a criminal sentence must not be “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, fn. omitted (Lynch).)
The government has a valid public safety interest in incapacitating and deterring
recidivist felons. (Gonzalez v. Duncan (9th Cir. 2008) 551 F.3d 875, 886.) As a result,
courts must consider the defendant’s criminal history when determining whether a
penalty is so severe as to violate the Eighth Amendment. (Ibid.) Criminal history is also
a key consideration in determining whether the sentence violates the California
Constitution. (E.g., People v. Cooper (1996) 43 Cal.App.4th 815, 825–826.) For
example, our court has held the imposition of a 25-year-to-life term for a “nonviolent,
nonserious felony” committed by a “recidivist offender … with at least 2 prior
convictions for violent or serious felony is not grossly disproportionate to the crime.”
(Cooper, at p. 825.)
Under the state and federal constitutional analysis, substantial deference must be
given to the Legislature’s choice of punishment. “Reviewing courts, of course, should
grant substantial deference to the broad authority that legislatures necessarily possess in
determining the types and limits of punishments for crimes, as well as to the discretion
that trial courts possess in sentencing convicted criminals.” (Helm, supra, 463 U.S. at
p. 290, fn. omitted.)
“Whether a particular punishment is disproportionate to the offense
is, of course, a question of degree. The choice of fitting and proper
penalties is not an exact science, but a legislative skill involving an
appraisal of the evils to be corrected, the weighing of practical alternatives,
consideration of relevant policy factors, and responsiveness to the public

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19.
will; in appropriate cases, some leeway for experimentation may also be
permissible. The judiciary, accordingly, should not interfere in this process
unless a statute prescribes a penalty ‘out of all proportion to the offense’
[citations], i.e., so severe in relation to the crime as to violate the
prohibition against cruel or unusual punishment.” (Lynch, supra, 8 Cal.3d
at pp. 423–424.)
A. Richardson’s Sentence was not “Purposeless”
First, Richardson argues that his sentence makes no measurable contribution to
acceptable goals of punishment and hence is nothing more than the purposeless and
needless imposition of pain and suffering. (See Coker v. Georgia (1977) 433 U.S. 584,
592.)
Richardson argues that because he cannot be a danger to society after his death, a
prison term that exceeds his life expectancy “does not serve to protect society through
incapacitation.” But the sentence clearly does protect society through incapacitation
before Richardson’s death.
Richardson says that “since the deterrent value of punishment lies in the
defendant’s fear of it, exposure to a prison term longer than life expectancy serve[s] no
deterrent purpose.” However, criminal sentences are not meant only to deter the specific
defendant to whom they are applied, but to deter those who would commit the crimes in
the future.
B. Richardson has not Established Disproportionality in light of Substantial
Criminal History and Government’s Legitimate Interest in Punishing and
Incapacitating Recidivist Felons
Richardson also contends his punishment is cruel and unusual because it is
“grossly disproportionate” to the crime he committed.
In Lynch, the Supreme Court identified several “techniques” for analyzing claims
of cruel and unusual punishment. (Lynch, supra, 8 Cal.3d at p. 425.) The first involves
“examin[ing] the nature of the offense and/or the offender ….” (Ibid.)

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20.
With respect to the “nature of the offense” factor, Richardson emphasizes his
current offenses are nonviolent. With respect to the “nature of the offender” factor,
Richardson simply notes he was already serving a substantial prison sentence and “had
no meaningful opportunity to re-enter society.” However, that is not the only
consideration with respect to the nature of the offender. As recounted above, Richardson
has a substantial criminal history. Richardson was convicted of robbery (§ 211) in 2001
and 2003, possession of a controlled substance (Health & Saf. Code, § 11350) in 2006,
possession of a firearm as a felon, assault with a deadly weapon, and attempted murder in
2009 (§§ 187, subd. (a), 664 & 245, subd. (a); former § 12021.) While a 50-year-to-life
sentence would likely be too severe a punishment for marijuana possession in prison,
Richardson “was punished not just for his current offense but for his recidivism” as well.
(People v. Cooper, supra, 43 Cal.App.4th at p. 825.) Because of his substantial criminal
history, Richardson’s sentence is not so disproportionate that it “shocks the conscience”
under the California standard (Lynch, supra, 8 Cal.3d at p. 424) or violates the federal
constitution’s requirement that a sentence be proportionate to the crime (Helm, supra,
463 U.S. at p. 290).
This conclusion comports with a line of cases from the Supreme Court. In
Rummel v. Estelle (1980) 445 U.S. 263, the Supreme Court upheld a sentence of life in
prison for the crime of obtaining $120.75, by false pretenses. In Helm, supra, 463 U.S.
277, the Supreme Court reversed a life sentence imposed for the crime of passing a “no-
account” check. In Lockyer v. Andrade (2003) 538 U.S. 63, the Supreme Court upheld an
aggregate 50 years to life sentence under the Three Strikes law for stealing videotapes
from stores on two occasions.15 In Ewing v. California (2003) 538 U.S. 11 (Ewing), the
15 The question before the court in Lockyer was whether the Ninth Circuit erred in
concluding the California Court of Appeal’s decision upholding the sentence was
“contrary to, or an unreasonable application of, clearly established federal law as
determined by [the Supreme Court] within the meaning of 28 U.S.C. § 2254(d)(1).”
(Lockyer, supra, 538 U.S. at p. 66.)

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21.
Supreme Court upheld a 25-year-to-life sentence under the Three Strikes law for stealing
three golf clubs.16
As these cases reflect, the Eighth Amendment permits substantial sentences for
arguably “minor” crimes where the defendant is a recidivist. Certainly, Helm, supra, 463
U.S. 277, illustrates that there is a limit to how much can be justified by recidivism
concerns. But we cannot say that the sum of Supreme Court case law in this area
mandates reversal here.17
C. Comparative Analysis not Warranted
Lynch identified other “techniques” for considering claims of cruel and unusual
punishment, including: (1) “compar[ing] the challenged penalty with the punishments
prescribed in the same jurisdiction for different offenses” (i.e., intra-jursidictional
comparative analysis); or (2) “compari[ng] … the challenged penalty with the
punishments prescribed for the same offense in other jurisdictions” (i.e., inter-
jurisdictional comparative analysis.) (Lynch, supra, 8 Cal.3d at pp. 426–427.) However,
such analyses are appropriate only in the rare case in which comparison of the crime to
the sentence leads to an inference of gross disproportionality. (Taylor v. Lewis (9th Cir.
2006) 460 F.3d 1093, 1098, fn. 7.) As the lead opinion stated in Ewing:
“To be sure, [defendant’s] sentence is a long one. But it reflects a rational
legislative judgment, entitled to deference, that offenders who have
committed serious or violent felonies and who continue to commit felonies
must be incapacitated. The State of California ‘was entitled to place upon
[defendant] the onus of one who is simply unable to bring his conduct
16 No opinion in Ewing garnered five votes. However, a majority of the justices
concluded the sentence did not constitute cruel and unusual punishment. The California
Supreme Court has followed Ewing. (In re Coley (2012) 55 Cal.4th 524, 531.)
17 Richardson also cites to two United States District Court cases, which we find
unpersuasive. (See Banyard v. Duncan (2004) 342 F.Supp.2d 865, 875 [“The crime of
possessing a use quantity of drugs is committed on a regular basis by countless otherwise
law-abiding citizens, without any significant feeling of moral culpability”]; Duran v.
Castro (E.D. Cal.2002) 227 F.Supp.2d 1121.)

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22.
within the social norms prescribed by the criminal law of the State.’
[Citation.] [Defendant’s] is not ‘the rare case in which a threshold
comparison of the crime committed and the sentence imposed leads to an
inference of gross disproportionality.’ [Citation.]” (Ewing, supra, 538 U.S.
at p. 30, (lead opn. of O’Connor, J.).)
D. Conclusion
While possession of marijuana alone would likely not justify Richardson’s
sentence, “the State’s public-safety interest in incapacitating and deterring recidivist
felons” does. (Ewing, supra, 538 U.S. at p. 33 (lead opn. of O’Connor, J.), fn. omitted.)
Consequently, we reject Richardson’s claim.
DISPOSITION
The matter is remanded for the trial court to dismiss one of Richardson’s prior
strike enhancements relating to the 2010 convictions for attempted murder and assault
with a firearm. The judgment against Richardson is otherwise affirmed. The judgment
against Vaughn is affirmed in its entirety.
______________________
POOCHIGIAN, Acting P.J.
WE CONCUR:
______________________
SMITH, J.
______________________
MEEHAN, J.

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