Opinion

People v. Grimes CA2/4

Court
California Court of Appeal
Filed
Jun 17, 2025
Status
Unpublished
Cited by
0 cases
Authority
More cited than 36.5%

The opinion

Filed 6/17/25 P. v. Grimes CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

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

18

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

19

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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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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