The opinion
Filed 6/17/25 P. v. Grimes CA2/4
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B336757
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. LA033697)
v.
GERALD RICHARD GRIMES,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Richard H. Kirschner, Judge. Affirmed.
Milena Nelson Blake, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Kenneth C. Byrne, Ana R. Duarte, Megan
Moine and Shezad H. Thakor, Deputy Attorneys General, for
Plaintiff and Respondent.
INTRODUCTION
In 2000, a jury found Gerald Grimes guilty of infliction of
corporal injury on a spouse (Pen. Code, § 273.5, subd. (a), count
11), and making terrorist threats (former § 422, count 4). The
court sentenced Grimes to concurrent terms of 26 years to life on
count 1 and 39 years to life on count 4; the sentences included
several enhancements based on prior convictions.
In 2022, Grimes petitioned for resentencing under section
1172.75, which invalidated certain sentence enhancements based
on prior convictions. The trial court struck Grimes’s
enhancements and resentenced him to 25 years to life on count 1,
and a concurrent term of 25 years to life on count 4. Grimes
appealed.
Grimes asserts that the trial court erred in sentencing
count 1, because following the Three Strikes Reform Act of 2012
(Prop. 36, as approved by voters, Gen. Elec. (Nov. 6, 2012))
(Reform Act), corporal injury of a spouse, which under the
circumstances was not a serious or violent felony under the Penal
Code, should not have been sentenced as a strike offense. The
People concede this point. However, we follow the published case
law holding that resentencing based on Reform Act changes is
not authorized in the context of resentencing under section
1172.75.
Grimes also argues that the court should not have applied
the well-established standard in denying his Romero2 request,
asserting that the court instead should have used a different
1 All undesignated section references are to the Penal Code.
2 See People v. Superior Court (Romero) (1996) 13 Cal. 4th
497 (Romero).
2
standard in light of the time that had passed since the offenses
and Grimes’s good behavior in prison. We find no error.
Finally, Grimes asserts that his sentence violates state and
federal prohibitions on disproportionate punishment. This
argument has been forfeited, and even if it had not, Grimes has
not demonstrated that his sentence was disproportionate. We
therefore affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
A. Offenses and original sentence
As stated in the nonpublished opinion from Grimes’s direct
appeal, People v. Grimes (Feb. 28, 2001, B140435), “The evidence,
briefly summarized in the light most favorable to the judgment,
proved that on July 8, 1999, during a domestic argument,
appellant threw a radio against a wall, threw a piece of the
broken radio at his wife, punched her in the shoulder and temple,
kicked her in the thigh, threatened her with scissors, repeatedly
punched her in the head and chest, threatened to kill her, and
punched her in the face.” In 2000, a jury found Grimes guilty of
infliction of corporal injury on a spouse (§ 273.5, subd. (a), count
1), and making terrorist threats (former § 422, count 4). The trial
court sentenced Grimes to concurrent terms of 26 years to life on
count 1, and 39 years to life on count 4. The sentences included
enhancements for prior offenses under sections 667, subdivision
(a)(1) and 667.5, subdivision (b), and on count 4, under section
12022, subdivision (b)(1).
B. Petition for resentencing
In December 2022, Grimes moved for resentencing under
section 1172.75 and People v. Buycks (2018) 5 Cal.5th 857.3
3 “Senate Bill 483 [(2021–2022 Reg. Sess.)] added former
section 1171.1, later renumbered as section 1172.75 (Stats. 2022,
3
Grimes noted that section 1172.75, subdivision (d)(3) stated, “The
court may consider postconviction factors, including, but not
limited to, the disciplinary record and record of rehabilitation of
the defendant while incarcerated, evidence that reflects whether
age, time served, and diminished physical condition, if any, have
reduced the defendant's risk for future violence, and evidence
that reflects that circumstances have changed since the original
sentencing so that continued incarceration is no longer in the
interest of justice.”
Grimes submitted evidence of his “overwhelming record of
rehabilitation,” including letters from California Department of
Corrections and Rehabilitation (CDCR) correctional officers and
other prison employees. Grimes noted that he had the lowest
possible security classification score, he was 59 years old, and he
had a number of medical problems, which all suggested a low risk
of recidivism. He had also taken classes addressing depression,
drug abuse, criminal thinking, and anger management.
ch. 58, § 12), to the Penal Code.[ ] (Stats. 2021, ch. 728, §§ 1, 3.)
Penal Code section 1172.75 provides that ‘[a]ny sentence
enhancement that was imposed prior to January 1, 2020,
pursuant to subdivision (b) of Section 667.5, [with exceptions not
relevant here,] is legally invalid.’ (Pen. Code, § 1172.75, subd.
(a).) It further provides that if a currently incarcerated defendant
is serving a sentence that includes such a legally invalid
enhancement, ‘the court shall recall the sentence and resentence
the defendant.’ (Id., subd. (c).)” (People v. Carter (2023) 97
Cal.App.5th 960, 966.) In People v. Buycks, the Supreme Court
stated, “when part of a sentence is stricken on review, on remand
for resentencing ‘a full resentencing as to all counts is
appropriate, so the trial court can exercise its sentencing
discretion in light of the changed circumstances.’” (People v.
Buycks, supra, 5 Cal.5th at p. 893.)
4
Grimes stated that he only had two disciplinary infractions
since 2000—one for failing to report to a work assignment, and
one for hitting another inmate “over five years ago.” The rules
violation report attached to the motion showed that in May 2002,
Grimes was written up for failing to “report to his assigned
Vocational Landscape class as required.” Grimes had received
that work assignment in December 2001, but “he has continually
refused to report to his work assignment daily.” Grimes “pled
guilty” to the charge. The second rules violation stated that
Grimes “self-admitted” that he hit another inmate on August 30,
2017. Grimes stated that he hit the victim in the face twice as the
victim sat on a bunk; the victim was transported to the hospital
with a facial fracture. Grimes was charged with a rules violation
for battery with serious bodily injury. The incident was referred
to the local district attorney for possible prosecution; the district
attorney declined to prosecute.
Grimes also argued that he fell “outside the spirit” of the
three strikes law. He cited People v. Williams (1998) 17 Cal.4th
148, 161, in which the Supreme Court stated, “[I]n ruling
whether to strike or vacate a prior serious and/or violent felony
conviction allegation or finding under the Three Strikes law, on
its own motion, ‘in furtherance of justice’ pursuant to Penal Code
section 1385(a), or in reviewing such a ruling, the court in
question 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, 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.” Grimes requested that a
5
prior strike be stricken under Romero, that certain enhancements
be stricken, and that he be resentenced to a total of eight years.
C. Opposition and reply
The People opposed Grimes’s motion. The People recounted
Grimes’s 1999 crimes in detail, stating that he struck his wife
“several times in the face, chest, breast, leg and shoulder, causing
injuries that did not resolve for weeks. He imprisoned her in the
bathroom during the beatings, held scissors to her and
threatened her; he terrorized her with threats to kill her and her
family; spit on her for the sole purpose of humiliating her; and
backhanded his one year old child [sic] knocking his head into the
toilet fixture after telling the victim she should have aborted the
child because [Grimes] did not love him. Victim escaped from the
assault and abuse with her child by forcing her way out of the
home.” The People also noted that in Grimes’s 2000 trial, the
jury deadlocked on a child abuse charge (§ 273a, subd. (a)) and
found Grimes not guilty on an assault with a deadly weapons
charge (§ 245, subd. (a)(1)). Further, two prior strike allegations
were found true; and Grimes also admitted three prison priors
and previous domestic violence convictions.
The People argued, “Whether a sentence is fair, consistent
and ‘in the interest of justice’ is primarily determined by two
factors: the defendant’s criminal history and the nature of the
commitment offense. The sentence for a violent crime by a
recidivist criminal can only be ameliorated to a limited degree by
subsequent good conduct in prison.” The People also asserted
that Grimes’s “continuous and violent criminal history leading up
to the commitment offenses, the brutality of the offenses
themselves, and his relatively recent assaultive conduct (which is
very similar to the conduct of the commitment offenses) present
6
significant concerns of public safety if [Grimes] were to be
released.” The People requested that the court impose the
original sentence, “minus the now-illegal PC §667.5(b)
enhancements.”
In his reply, Grimes stated that he “does not challenge the
seriousness of the offense or the legality of his current conviction,
nor does he allege that he was improperly sentenced under the
Three Strikes Law in 2000. Instead, he asks this court to
consider his significant record of rehabilitation, whether he
currently poses a risk to public safety, and recent changes to
sentencing laws, to determine that if Mr. Grimes’ ‘continued
incarceration is no longer in the interest of justice.’” Grimes
submitted several additional documents supporting his request
for release, including letters from a former federal probation
officer, a psychologist, and a public safety consultant.
In response, the People also submitted additional
documents, including the transcript from a 2020 hearing in which
Grimes was denied parole, and a statement by Grimes’s victim.
In the parole hearing, Grimes told the parole board that he only
physically abused his ex-wife “[t]hat one time,” even when the
parole board questioned him on the issue.
D. Court ruling
At the resentencing hearing on October 2, 2023, the court
noted that “the current judgment includes four one-year 667.5
enhancements. Three were imposed. One was stayed. All of
those enhancements are legally invalid, and the court dismisses
those enhancements.” The court stated that it had read the
information submitted by the parties. The defense called witness
Richard Subia, a former CDCR warden and public safety expert,
who testified that Grimes no longer posed an unreasonable risk of
7
dangerousness to public safety. The defense also called
psychologist Rahn Minagawa, who similarly testified that Grimes
would not pose a significant threat to the community if he were
released.
The People called Grimes’s ex-wife, the victim of the crime,
who testified about multiple domestic violence incidents before
Grimes was convicted, including one in which Grimes killed her
kitten. The ex-wife also testified about incidents following
Grimes’s conviction, including his attempts to contact her and her
ongoing fear even after he was incarcerated. The court asked
whether the People would file the case as a third strike if it were
filed today; the People confirmed that it would. The court
continued the hearing to get more information about Grimes’s
prior convictions.
After several continuances and additional filings by
Grimes, the court resentenced Grimes on February 14, 2024. The
court noted that it had already dismissed the invalid
enhancements under section 667.5. The court said, “There are
two separate and distinct issues before the court,” the “remaining
enhancements resentencing and the Romero motion.” The court
discussed the evidence submitted by Grimes, and dismissed the
enhancements under sections 667, subdivision (a) and 12022,
subdivision (b)(1).
Turning to Grimes’s request to strike a prior strike under
Romero, the court stated that the relevant consideration was the
“risk to public danger,” and that a court “may give no weight
whatsoever to factors extrinsic to the three-strikes scheme.” The
court stated, “When the three-strikes life sentence was imposed
on Mr. Grimes in this matter 24 years ago, the defendant’s prior
criminal history in conduct richly, richly merited the three-
8
strikes sentence.” The court discussed the crime, and noted that
Grimes assaulted someone in prison in 2017. The court noted the
prison assault was “uniquely situational,” but it nevertheless was
a subsequent act of violence. The court stated, “The question now
is whether 24 years of good conduct in prison, coupled with the
blemishes of serious physical violence inflicted upon a fellow
prisoner six years ago, and lying to the parole board about
previous violence against the victim, as well as lying to the court
now about previous violence to the victim. [Sic] [¶] Is that such a
change in his background and character to ameliorate the three-
strikes sentence for a violent crime by a recidivist criminal,
placing him outside the spirit of the three-strikes scheme in
whole or in part. The answer is no. [¶] The Romero motion is
denied.”
The court therefore resentenced Grimes to 25 years to life
on count 1 (injury to spouse) as a third strike, and a concurrent
term of 25 years to life on count 4 (criminal threats). Grimes
timely appealed.
DISCUSSION
Grimes asserts three arguments on appeal. First, he
contends that the trial court erred in sentencing count 1 as a
strike offense. Second, he argues that the trial court should have
stricken one of his strike offenses under Romero. Finally, Grimes
asserts that his sentence constitutes an unconstitutional
disproportionate penalty. We find no error.
A. Sentencing on count 1
Petitioners who qualify for a recall of their sentences under
section 1172.75 are generally entitled to a full resentencing.
(See, e.g., People v. Rogers (2025) 108 Cal.App.5th 340, 361
(Rogers); People v. Monroe (2022) 85 Cal.App.5th 393, 402.)
9
Grimes was originally sentenced in 2000. At that time, “[u]nder
the original Three Strikes law, a defendant with two or more
prior serious or violent felony convictions would be sentenced to a
life term for a current felony conviction even if the current
conviction was not for a serious or violent felony. (Former §§ 667,
subd. (e)(2)(A), 1170.12, subd. (c)(2)(C).) Voters enacted
Proposition 36, the Reform Act, in 2012. Under the Reform Act, a
defendant with two or more prior convictions for serious or
violent felonies, whose current conviction was for a nonserious or
nonviolent felony, would no longer receive a life sentence.
Instead, the term for the current offense would be doubled.
(§§ 667, subd. (e)(2)(C), 1170.12, subd. (c)(2)(C).)” (People v.
Superior Court (Guevara) (2023) 97 Cal.App.5th 978, 983, review
granted Mar. 12, 2024 S283305 (Guevara).)
Grimes correctly points out that count 1, corporal injury of
a spouse (§ 273.5, subd. (a)) is not listed as a serious or violent
felony under section 667.5, subdivision (c) or 1192.7, subdivision
(c). He contends that based on Reform Act changes, the trial court
below should not have sentenced count 1 as a third strike offense.
He argues that section 1172.75, subdivision (d)(2) instructs that
in resentencing, the court “shall apply the sentencing rules of the
Judicial Council and apply any other changes in law that reduce
sentences or provide for judicial discretion so as to eliminate
disparity of sentences and to promote uniformity of sentencing.”
The People concede this point under the circumstances of this
case and agree that the matter should be remanded for
resentencing on count 1.
However, five published cases have held that in the context
of resentencing under section 1172.75, courts generally are not
authorized to resentence a petitioner pursuant to Reform Act
10
changes. (See Guevara, supra, 97 Cal.App.5th 978, review
granted; People v. Terwilligar (2025) 109 Cal.App.5th 585
(Terwilligar); People v. Superior Court (Williams) (2024) 102
Cal.App.5th 1242, review granted Aug. 28, 2024, S286128
(Williams); People v. Santos (2024) 100 Cal.App.5th 666, review
granted May 29, 2024, S284341 (Santos); People v. Kimble (2024)
99 Cal.App.5th 746, review granted Apr. 24, 2024, S284259
(Kimble).) The issue is currently before the Supreme Court.
The parties did not discuss these cases in their briefs, so we
ordered supplemental briefing on the issue.4 The People
submitted a supplemental brief asserting that the
Guevara/Terwilligar line of cases was wrongly decided, and that
section 1172.75 allows a court to include Reform Act changes
when resentencing a petitioner pursuant to section 1172.75.
Grimes filed a supplemental brief largely agreeing with the
People.
The People asserted a similar position in Terwilligar,
supra, 109 Cal.App.5th 585. There, our colleagues in the First
District, Division Five held that despite the People’s concession,
courts are not authorized to resentence a petitioner pursuant to
Reform Act changes in the context of a section 1172.75 petition.
(Id. at p. 582.) We reach the same conclusion. The
Guevara/Terwilligar line of cases explain their reasoning clearly
4 The People stated in a footnote that Guevara is before the
Supreme Court, without any discussion of the issues in that case.
Counsel on both sides have a duty of candor to disclose all
relevant legal authority, even if it is adverse to their clients’
positions (Rules Prof. Conduct, rule 3.3(a)(2)), and should have
addressed this issue in their initial briefing.
11
and thoroughly, so there is no need for a full analysis here. We
therefore describe their holdings only briefly.
As noted above, the Reform Act was approved by voters in
2012 as Proposition 36. “[U]nder the California Constitution, ‘the
Legislature may not amend a statute enacted by initiative unless
the initiative allows such an amendment, and then only upon
such conditions the voters attach.’ [Citations.] Here, ‘[t]he
Reform Act allows the Legislature to amend it by statute only if
the statute passes each house of the Legislature by a vote of two-
thirds of the membership,’ and Senate Bill 483[5] ‘did not pass the
Senate with a two-thirds vote.’” (Terwilligar, supra, 109
Cal.App.5th at p. 597; see also Guevara, supra, 97 Cal.App.5th at
p. 987, review granted [“because section 1172.75 was not enacted
by a two-thirds vote of both houses of the Legislature, it is not the
mechanism for relief for those serving an indeterminate term
pursuant to the Reform Act”].) Thus, section 1172.75 cannot be
interpreted as amending the Reform Act.6
As such, “Senate Bill 483 is unconstitutional to the extent
it amends the Reform Act, and . . . applying the revised penalty
provisions of the Reform Act during section 1172.75 resentencing
5 Section 1172.75 was enacted by Senate Bill No. 483. See
footnote 3, ante.
6 “The original Three Strikes law was enacted by the
Legislature and also enacted by the voters as Proposition 184 on
November 8, 1994. The original Three Strikes law does not allow
the Legislature to amend it by statute except by a vote of two-
thirds of the membership of each house. (Prop. 184, § 4.)”
(Guevara, supra, 97 Cal.App.5th at p. 986, review granted.)
Thus, section 1172.75 also cannot amend the original Three
Strikes law.
12
would constitute such an amendment.” (Terwilligar, supra, 109
Cal.App.5th at p. 597.) The Terwilligar/Guevara line of cases
discuss three areas in which the two statutes may conflict, and
therefore the Reform Act must control.
First, the two statutes differ regarding timing. Section
1170.176 is the portion of the Reform Act that sets out the
procedure for seeking resentencing; it “permits an inmate to
petition for resentencing ‘within two years after the effective date
of the act that added this section or at a later date upon a
showing of good cause.’ (§ 1170.126, subd. (b).)” (Terwilligar,
supra, 109 Cal.App.5th at p. 598.) “Allowing a defendant to
benefit from the revised penalty provisions” of the Reform Act by
seeking resentencing under section 1172.75, without regard to
the Reform Act’s two-year limitation period, which expired in
2014, “would, absent a showing of good cause,[ ] be contrary to
the voters’ intent to allow defendants to seek resentencing under
the Reform Act only ‘within a reasonable time after its
enactment.’” (Terwilligar, supra, 109 Cal.App.5th at p. 598,
citing Kimble, supra, 99 Cal.App.5th at p. 755, review granted;
Williams, supra, 102 Cal.App.5th at p. 1263, review granted.)
Grimes’s petition for resentencing was not made within this two-
year timeframe, and there has been no showing of good cause for
delay.
Second, the evidentiary burden regarding public safety in
resentencing differs between the Reform Act and section 1172.75.
“Specifically, while section 1170.126, subdivision (f) provides for
denial of resentencing where the trial court ‘in its discretion,
determines that resentencing the petitioner would pose an
unreasonable risk of danger to public safety,’ section 1172.75,
subdivision (d)(1) mandates imposition of a lesser sentence
13
‘unless the court finds by clear and convincing evidence that
imposing a lesser sentence would endanger public safety.’”
(Terwilligar, supra, 109 Cal.App.5th at p. 597; see also Williams,
supra, 102 Cal.App.5th at p. 1260-1262, review granted; Guevara,
supra, 97 Cal.App.5th at p. 987, review granted.) Thus, “in
passing the Reform Act, the voters intended to balance
ameliorating the harshness of the original Three Strikes law with
protecting public safety.” (Guevara, supra, 97 Cal.App.5th at p.
985, review granted.) Employing the lower standard of section
1172.75 rather than the higher standard of 1170.126 when
implementing Reform Act sentencing changes would
“unconstitutionally eliminate[ ] the public safety half of the
balance.” ( Ibid.)7
Third, reading section 1172.75 to allow resentencing under
the Reform Act would lead to illogical results. Section 1172.75
resentencing is available only to defendants serving sentences
that include enhancements based on prior convictions. As the
Guevara majority observed, it would be “unfair” to provide
belated Reform Act relief “only to those inmates serving an
7 Allowing section 1172.75 resentencing despite the stricter
public safety standards of section 1170.126 would result in
especially anomalous results in cases such as Williams, supra,
102 Cal.App.5th at p. 1267, review granted and Kimble, supra, 99
Cal.App.5th at p. 756, review granted, in which the petitioners
sought relief under the Reform Act and their petitions were
denied based on the risks they posed to public safety. In such
cases, to allow the petitioners a “second bite at the apple” under
the more relaxed standards of section 1172.75 would further
undermine the public safety balance inherent in the Reform Act.
Here, the record does not reveal whether Grimes previously
petitioned for relief under the Reform Act.
14
indeterminate term with prior prison term enhancements and to
exclude relief to those with a lesser criminal history.” (Guevara,
supra, 97 Cal.App.5th at p. 987, review granted.) Indeed, section
1172.75 itself states that it is intended to “eliminate disparity of
sentences and to promote uniformity of sentencing” (§ 1172.75,
subd. (d)(2))—an end that would not be served if Reform Act
changes were applied in this way.
In supplemental briefing, the People argue that the
Guevara/Terwilligar line of cases were wrongly decided. They
urge us to adopt the reasoning of the dissent in Guevara, which
states, “Because the trial court recalled his sentence, Guevara
was no longer ‘presently serving an indeterminate term of
imprisonment’ (§ 1170.126, subd. (a), italics added); in the words
of the court below, Guevara was an ‘un-sentenced [d]efendant,’ so
section 1170.126 no longer applied to him (§ 1170.126, subd. (a)
[section 1170.126 applies ‘exclusively’ to those serving
indeterminate terms (italics added)]). Instead, when the court
resentenced Guevara pursuant to section 1172.75, subdivision
(d), it was required to do so pursuant to section [1172.75].”
(Guevara, supra, 97 Cal.App.5th at p. 991, review granted (dis.
opn. of Baltodano, J.).)
We join the cases that disagree with this interpretation. As
the Williams court stated, “We believe the applicability of section
1170.126’s resentencing provisions to ‘persons presently serving
an indeterminate term of imprisonment’ (§ 1170.126, subd. (a))
refers to defendants who were then serving such a term under
the Three Strikes law at the time section 1170.126 went into
effect in 2012.” (Williams, supra, 102 Cal.App.5th at p. 1263,
review granted; see also Terwilligar, supra, 109 Cal.App.5th at p.
604 [this “construction is the only one that comports with the
15
voters’ well-established intent that a person serving a life
sentence at the time of the enactment would only be resentenced
to a determinate term following the specified public safety
determination”]; Santos, supra, 100 Cal.App.5th at p. 677, review
granted [“it is a ‘leap in logic’ to suggest the voters who passed
the Reform Act would not consider defendant to be ‘presently
serving’ a third strike sentence”].) As such, we are unpersuaded
by the reasoning of the dissent in Guevara.
Thus, we find that Grimes has not demonstrated that the
trial court erred with respect to the sentence on count 1.
B. Romero request
When resentencing a petitioner under section 1172.75, a
trial court has “the authority to exercise its discretion under
section 1385[, subdivision (a)] and Romero to strike any or all of
[the petitioner’s] strike priors.” (Rogers, supra, 108 Cal.App.5th
at p. 364.) Grimes argues that here, the “trial court abused its
discretion at sentencing by applying the wrong legal standard.”
He notes that the court considered the standards articulated in
People v. Williams, supra, 17 Cal.4th 148, in determining
whether Grimes fell outside the “spirit” of the Three Strikes law.
Grimes argues this was error, because the “well-established
standard” from People v. Williams “makes perfect sense when
applied shortly after a defendant’s conviction and a trial court
must decide the propriety of a life sentence,” but it “makes less
sense” when the “sentencing hearing takes place decades after
the defendant’s conviction.”8
8 Grimes’s opening brief on this issue is vague; he does not
mention a Romero request or section 1385, subdivision (a), nor
does he explicitly argue that the court erred in declining to strike
one of Grimes’s strikes. Grimes’s reply brief more clearly states
16
A trial court’s refusal to strike a prior conviction is subject
to review for abuse of discretion. (People v. Carmony (2004) 33
Cal.4th 367, 375.) “[A] trial court does not abuse its discretion
unless its decision is so irrational or arbitrary that no reasonable
person could agree with it.” (Id. at p. 377.) “‘“[T]he burden is on
the party attacking the sentence to clearly show that the
sentencing decision was irrational or arbitrary.”’” (Id. at p. 376.)
The standards for a Romero request are well established.
As noted above, “In ruling on a Romero motion, the court must
consider whether ‘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. Salazar (2023) 15
Cal.5th 416, 428 (Salazar), quoting People v. Williams, supra, 17
Cal.4th at p. 161.) Thus, “courts asked to dismiss a prior
conviction at sentencing that would significantly enhance
punishment under California's three strikes law may not rely on
factors extrinsic to that sentencing scheme . . . . [Citations.]
Instead, sentencing courts consider factors intrinsic to that
scheme, ‘as informed by generally applicable sentencing
principles,’ such as the nature of the charged and prior offenses
and the defendant's ‘background, character, and prospects.’”
(Wheeler v. Appellate Division of Superior Court (2024) 15 Cal.5th
that this “wrong standard” argument relates to his Romero
request. Because the People addressed Grimes’s Romero request
in their respondent’s brief, we consider the merits of the
contention rather than treat it as forfeited. (See, e.g., People v.
Lombardo (2020) 54 Cal.App.5th 553, 565 [the court may treat as
forfeited an “undeveloped” argument].)
17
1193, 1207, quoting People v. Williams, supra, 17 Cal.4th at p.
160.)
We are not aware of any authority supporting Grimes’s
contention that when addressing a Romero request in the context
of resentencing under section 1172.75, a court should employ
different sentencing considerations. Our Supreme Court has
made clear that the Three Strikes law “‘“does not offer a
discretionary sentencing choice, as do other sentencing laws, but
establishes a sentencing requirement to be applied in every case
where the defendant has at least one qualifying strike, unless the
sentencing court ‘conclud[es] that an exception to the scheme
should be made because, for articulable reasons which can
withstand scrutiny for abuse, this defendant should be treated as
though he actually fell outside the Three Strikes scheme.’”’”
(Salazar, supra, 15 Cal.5th at p. 428, quoting Carmony, supra, 33
Cal.4th at p. 377.) Thus, the Three Strikes law “carefully
circumscribes the trial court’s power to depart from this norm,”
and “creates a strong presumption that any sentence that
conforms to these sentencing norms is both rational and proper.”
(Carmony, supra, 33 Cal.4th at p. 378; see also People v. Mayfield
(2020) 50 Cal.App.5th 1096, 1105 [a “trial court is empowered to
strike a prior strike conviction ‘in the furtherance of justice,’” but
“that great power should only be used in ‘extraordinary’
circumstances, when the ends of justice demand it”].)
In the context of section 1172.75, the court in Rogers,
supra, 108 Cal.App.5th 340, for example, considered a Romero
request and followed the traditional standard. The court stated
that “the Three Strikes law is not discretionary in nature.
Rather, the law must be applied when the defendant has two or
more prior strikes, unless the court concludes an exception to the
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law should be made.’” (Rogers, supra, 108 Cal.App.5th at p. 365,
quoting People v. Mayfield, supra, 50 Cal.App.5th at p. 1105.)
Grimes does not cite any authority supporting his
argument that a different standard should apply in the context of
section 1172.75 resentencing; he asserts only that doing so makes
“logical sense.” Grimes therefore has not met his burden to show
that the trial court erred by relying on the well-established
standard.
C. Cruel and unusual punishment
Finally, Grimes asserts that a life sentence for “non-
violent” crimes violates “state and federal prohibitions on
disproportionate punishment.” The People assert that Grimes
forfeited this argument by failing to raise it below. Grimes
asserts that we may address the issue as a pure question of law
based on undisputed facts.
The contention is forfeited. The argument that a sentence
constitutes cruel and unusual punishment under the United
States Constitution or the California Constitution “requires a
‘fact specific’ inquiry [citation], and those facts and their import
to the analysis must be developed in the trial court.” (People v.
Brewer (2021) 65 Cal.App.5th 199, 212.) Thus, failure to object
on this basis in the trial court forfeits the issue. (Ibid.; see also
People v. Baker (2018) 20 Cal.App.5th 711, 720; People v. Speight
(2014) 227 Cal.App.4th 1229, 1247.)
Even if Grimes had not forfeited this argument, it is not
persuasive. Grimes provides no analysis as to why his sentence
constitutes cruel and unusual punishment. He cites only two
cases and contends they are “similar.” In one case, People v.
Avila (2020) 57 Cal.App.5th 1134, the defendant was convicted of
attempted second degree robbery and attempted extortion; he
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was sentenced to 25 years to life plus 14 years. (Avila, supra, at
p. 1139.) The Court of Appeal found that the sentence
constituted cruel or unusual punishment under the California
Constitution, in part because “Avila did not use violence against
either of his victims. He did not verbally or physically threaten
them.” (Id. at p. 1146.) Here, by contrast, Grimes did use
violence against his ex-wife, and he did verbally and physically
threaten her. The reasoning in Avila is therefore not applicable
here.
In the other case, Ramirez v. Castro (9th Cir. 2004) 365
F.3d 755, the Ninth Circuit found that the defendant’s 25 years to
life sentence for shoplifting a VCR constituted cruel and unusual
punishment under the Eighth Amendment of the United States
Constitution. The court noted that the sentence was “more
severe than the sentence he would have faced had any one of his
three crimes been murder, manslaughter, or rape.” (Ramirez,
supra, 365 F.3d at p. 756.) The court also noted that the
defendant did not have a violent criminal history; his previous
two convictions for second degree robbery resulted from a single
guilty plea. (Id. at p. 768.) Here, by contrast, Grimes’s crimes
were violent, he had several prior convictions for violent felonies,
and he admitted to battering another person while in prison.
Thus, the reasoning of Ramirez is also not applicable.
Grimes has therefore not demonstrated that his sentences
constitute disproportionate punishment, or that the trial court
otherwise erred in resentencing him.
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, ACTING P. J.
We concur:
MORI, J.
DAUM, J.*
* Judge of the Los Angeles County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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