Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCE257644, Christine K. Goldsmith, Judge.
BENKE, Acting P. J.
Douglas Beach Carter was convicted of arson within the meaning of Penal Code section 451, subdivision (c), and admitted three "strike priors" within the meaning of section 667, subdivisions (b) through (i), and one prior within the meaning of section 667, subdivision (a)(1). Carter was sentenced to a prison term of 30 years to life. He appeals, arguing the trial court erred in denying his motion to exclude evidence based on a claimed unlawful detention and arrest, the evidence of arson was insufficient, the prosecutor engaged in misconduct, the court erred in admitting evidence concerning a prior offense and the trial court abused its discretion in refusing to strike any of his strike priors.
All further statutory references are to the Penal Code unless otherwise specified.
FACTS
A. Prosecution Case
1. The Fire
On January 5, 2006, at approximately 2:00 p.m. as Susan Schreiber was driving westbound on Interstate 8 in the area of Alpine, she noticed billowing smoke coming from an area near the north shoulder of the freeway. As she passed the smoke, she noticed a man who appeared to be wearing no clothes standing near the north shoulder of the freeway. The man was tall and had long, brown unkempt hair. Schreiber exited the freeway and called the police.
At about the same time, Sean Quinn and his teenage son Jason, who were also westbound on Interstate 8, saw the smoke. Sean began to slow down and stop to put out the fire. As he did so, he noticed the smoke was coming from flames at the bottom of a tree about 15 to 20 feet off the roadway. Sean decided not to stop when Jason told him there was a naked "hippie" man on the roadside about 20 or 30 feet from the fire. Jason could see the man's penis. Jason noticed the man looking through binoculars at the fire. Jason thought the man was wearing a wig and either a beanie with a white stripe or a white sweatband. Jason also saw a red motorcycle with black saddlebags parked on the same side of the freeway. Sean exited the freeway and called the police.
Sheriff's Deputies Leonard Rodriguez and Michael Proctor arrived at the fire sometime after 2:00 p.m. Two men, a Caltrans worker and a forest service employee were at the scene attempting to extinguish a brush fire under a pepper tree. The fire department arrived soon after and the fire was put out.
Deputy Proctor investigated the area north of the fire between the tree and the fence bordering the freeway. The deputy found a depression in the grass as if the area has been used as a footpath. The path leads from the area of the fire westward along the fence for 50 or 60 yards. At that point the path turned toward the fence. Proctor noticed a hole was cut in the fence large enough for a person to go through. An attempt was made to cover the hole with brush. On the ground next to the hole, the officer saw a set of "tree loppers."
Proctor went through the hole and walked north along a path in an open field. Eventually, the officer went through another fence line into another field that had a dirt road running into a street. The officer walked to a portion of the field that appeared to be a vehicle "turnaround." At the turnaround, he found fresh motorcycle tracks, one leading to the area of the hole in the freeway fence and one leading away. Proctor reported to Officer Rodriguez that it appeared a motorcycle came into the area of the fire and then left.
2. The Arrest
Informed of the motorcycle tracks leading away from the hole in the fence, Rodriguez began patrolling the area. Rodriguez knew there was a report that a naked man with a bandana around his head was seen in the area of the fire. On a surface street a little over a mile from the fire, Rodriguez saw a red motorcycle with black saddlebags ridden by what appeared to be a naked man. The man wore a helmet and the officer could not see his hair. Rodriguez stopped the man, later identified as appellant. Appellant was not wearing a shirt but had on boots and tan shorts very close in color to appellant's skin. Rodriguez explained to appellant why he was stopped, asked for identification and asked if appellant was ever arrested. Appellant told the officer he was arrested for involvement in a fire.
Soon after the stop, Officer Proctor arrived followed by Sean and Jason Quinn. As Proctor walked up to the motorcycle, he could see that its tread pattern matched the motorcycle tracks he saw near the hole in the freeway fence. He also noticed vegetation on the motorcycle that matched the vegetation near the hole. Proctor could also see the same type of vegetation in the hair on appellant's back. On the motorcycle Proctor saw saddlebags. On one, the zipper was partially open, and through the opening the officer could see a hairy object.
A curbside showup was conducted. Jason stated the man he saw near the fire was hairy like appellant but that appellant's hair was different. Proctor then removed the hairy object from the saddlebag. The object was a wig with a "white band skullcap." Proctor held the wig in his hand. As he did so, both Jason and Sean stated that it was hair the man wore at the fire. Appellant was arrested.
3. The Investigation
On January 5, 2006, CDF Arson Investigator Gary Eidsmoe and CDF Fire Chief Michael Neill were called to the location where appellant was placed under arrest. The saddlebags on appellant's motorcycle were searched. They contained three cigarette lighters, a pair of binoculars, two tools for cutting wire, one suitable for cutting fence wire, a bottle of baby oil and a spray nozzle that could have come from a water tank truck.
Investigators Eidsmoe and Neill examined the location of the fire, and Eidsmoe prepared an investigation report concerning the fire. The north side of the base of the 20-foot tall pepper tree was badly burned. It was concluded the fire started in that area. There was no evidence that an accelerant or delay device was used in starting the fire. There were no power lines in the area, no metal objects or factors suggesting the fire was started by hot metal from a passing car, no cigarette butts in the immediate area of the fire and there were no lightning strikes. There was no indication the fire might have been started by spontaneous combustion. No physical evidence at the scene suggested what caused the fire. The pepper tree is located in a depression and a person standing by it would be concealed.
Neill later learned witnesses saw appellant standing naked on the freeway looking at the fire through binoculars. Neill was also aware that cigarette lighters were found in the saddlebags on appellant's motorcycle when he was arrested. Neill later learned that appellant started a fire in palm trees along Interstate 8. He was aware appellant started that fire with an open flame device -- in that case matches -- used on the trunk of the tree. Based on all the evidence, Neill concluded the fire at the pepper tree was caused by an open flame device.
Pursuant to a search warrant, a computer was seized at appellant's residence. The computer contained hundreds of images relating to fires and fire fighting.
On December 31, 1995, appellant parked his car, then walked up a freeway on-ramp to Interstate 8 in El Cajon. Appellant wore shorts and a shirt or jacket. Three to five minutes later, a palm tree located in the center median of Interstate 8 was on fire. Soon after, appellant came down the on-ramp and walked past his car. When appellant did not return, the police impounded the vehicle. Appellant's wallet was found in the car. On January 2, 1996, appellant appeared at the El Cajon Police Department to claim his vehicle. Interviewed by the police, appellant stated he went onto the freeway median and, using matches, set fire to dead palm fronds at the base of the tree. The tree burned and appellant walked to his home in Alpine.
B. Defense Case
Russell Bush, an independent arson investigator, criticized the investigation conducted by Eidsmoe and Neill and testified there were several possible causes of the fire. The causes could not be eliminated. He stated a conclusion that arson was the cause of the fire could not be made.
DISCUSSION
A. Search and Seizure
Appellant argues that while he was lawfully stopped by Officer Rodriguez, his detention was unduly prolonged. He argues that even if his detention was not prolonged, there was no lawful basis for the discovery and seizure of the wig found in the saddlebags of his motorcycle. He contends the trial court erred in denying his motion to suppress the evidence seized.
1. Background
Appellant moved pursuant to section 1538.5 for the suppression of all evidence that arose from his stop, detention and arrest on the day of the fire. The prosecution responded that the stop, detention and arrest were valid, and the seizure of the wig from the saddlebag was the result of a plain sight discovery by Officer Proctor that was justified in any case because it was made when the officers believed there was probable cause to arrest appellant.
At a hearing on the motion, Officer Rodriguez testified that when he left the area of the fire, he was aware of reports that a long-haired, nude man was involved in burning something on the side of the freeway. He was also aware that Officer Proctor discovered motorcycle tracks leading away from the scene of the fire. Approximately two miles from the scene of the fire and 25 minutes after he left the area, Rodriguez saw a man riding a motorcycle wearing tan shorts and no shirt. Because the man, later identified as appellant, looked like he was naked, Rodriguez stopped him to investigate.
When asked, appellant told Rodriguez he was coming from a cemetery. Rodriguez asked if appellant was ever arrested. Appellant told the officer he was an arson registrant. After this exchange, Rodriguez asked appellant for identification. Appellant went to his motorcycle, unzipped a saddlebag, retrieved his wallet, took out an identification card and handed it to the officer. Rodriguez did not look in the saddlebag. Concerned for his safety, Rodriguez, standing several feet from the vehicle, watched appellant's hands as he retrieved the wallet. Rodriguez stated he did not see anything in the bag and in particular did not see a gun. Rodriguez asked for permission to search the motorcycle. Appellant said no. Appellant did not zip the bag closed. Rodriguez did a records check which confirmed that appellant was required to register as an arsonist.
As Rodriguez was making the records check, Officer Proctor arrived. Proctor looked at the motorcycle and told Rodriguez the tread pattern on its tires matched the tracks found near the scene of the fire and there was vegetation on the motorcycle like that in the area of the tracks. Appellant was placed in the backseat of Rodriguez's car. Proctor left to photograph the tire tracks. Proctor returned in about 20 minutes. He compared the photographs of the tracks to the tread on appellant's motorcycle and concluded they matched. Appellant was told he was not under arrest. Rodriguez contacted the highway patrol and asked that the witnesses who saw the man near the fire come to where appellant was detained.
About 30 minutes later, witnesses Sean and Jason Quinn arrived. A curbside line-up was conducted. The Quinns noted that while appellant generally fit the description of the man they saw, the man at the fire had long hair and appellant did not. They noted, however, that appellant and the man at the scene both had hairy bodies.
Rodriguez and Proctor testified to different versions of what occurred next. Rodriguez testified the officers decided to release appellant because the witnesses stated his hair did not match that of the man they saw. As Rodriguez gathered some additional information, apparently in preparation to release appellant, Proctor walked to the motorcycle.
Proctor testified that after the witnesses stated appellant's hair was not like that of the man on the freeway, he, Rodriguez and an arson investigator discussed whether there was probable cause to arrest appellant. Proctor and the investigator believed there was, Rodriguez thought the question was close but believed there was not.
Proctor testified he walked to within inches of the unzipped and slightly open saddlebag on appellant's motorcycle. He looked straight down into the bag and in plain sight saw a wig. He removed the wig from the bag. The wig had long, dark hair. Proctor asked appellant to put on the wig for a second line-up. Appellant refused. The wig was shown the Quinns, and they stated it appeared to be the hair they saw on the man at the fire. Appellant was placed under arrest.
An hour and a half transpired between appellant's stop and his arrest.
Appellant testified that Proctor did not see the wig in the saddlebag in plain sight. Appellant stated that after he opened the bag to get his wallet, he re-zipped the bag and closed a cover over the zipper. Appellant stated he saw Proctor remove the cover and unzip the bag.
The trial court denied the motion to suppress. It found there was reasonable cause to stop appellant based on his appearance and information that a person on a motorcycle might have been involved in the fire. Based on the discovery that appellant had a prior arrest for arson, it was reasonable to detain him to make a more detailed comparison of the tread pattern on his motorcycle with the tracks found at the scene and to allow a show-up for witnesses. The trial court concluded that because Rodriguez was the arresting officer, his conclusion that there was no probable cause to arrest meant that any search of appellant's saddlebags could not be made as incident to an arrest. The court, however, rejected appellant's testimony that Proctor searched the saddlebag and concluded instead that Proctor's discovery of the wig was the result of a plain sight viewing.
2. Discussion
Appellant concedes that Officer Rodriguez had reasonable cause to stop and detain him. He argues, however, his detention was unlawfully prolonged after the officer saw that appellant's hair was short. Appellant argues even if he was lawfully detained to allow witnesses to view him, his detention was unlawfully prolonged after the witnesses stated that appellant's hair was not like that of the man they saw on the freeway. Finally, appellant, asking that we rejudge the facts, argues the trial court erred in finding that appellant's wig was seized not as the result of a plain sight discovery but an unlawful search.
"In reviewing the denial of a motion to suppress evidence, we view the record in the light most favorable to the trial court's ruling and defer to its findings of historical fact, whether express or implied, if they are supported by substantial evidence. We then decide for ourselves what legal principles are relevant, independently apply them to the historical facts, and determine as a matter of law whether there has been an unreasonable search and/or seizure." (People v. Miranda (1993) 17 Cal.App.4th 917, 922.)
a. Detention
There is no fixed time limit on investigatory detentions. A detention is deemed unconstitutionally prolonged if it is beyond a time that is reasonably necessary under the circumstances that made its initiation permissible. The question is whether the police diligently pursued an investigation reasonably designed to confirm or dispel their suspicions quickly. (People v. Gomez (2004) 117 Cal.App.4th 531, 537-538.)
Appellant argues that as soon as Rodriguez discovered appellant's hair did not fit the description of that worn by the man seen at the fire, he was required to immediately release him. We disagree. The situation that faced the officer was an unusual one. There was reason to believe a serious crime was committed by a naked man riding a motorcycle not far from the place Rodriguez stopped appellant. Appellant's attire was such that a witness might have concluded he was naked. While the length of appellant's hair did not fit the description of that worn by the man at the fire, there were several possible explanations for that discrepancy -- one of which proved to be true -- and it was reasonable for Rodriguez to continue questioning appellant and investigate his possible involvement with the fire.
Appellant argues that once the Quinns stated appellant's hair did not match that of the man they saw on the freeway, he should immediately have been released. As noted, there is a discrepancy in the testimony of the officers concerning appellant's status after the Quinns stated that the length of his hair was different than that of the man on the freeway. Rodriguez states they were in the process of releasing appellant when Proctor found the wig. Proctor testified that he and the arson investigator concluded regardless of the Quinns' observation, there was probable cause to arrest appellant and Proctor approached the motorcycle to search it incident to his arrest. We reject the trial court's conclusion that somehow Rodriguez was the arresting officer and, therefore, Proctor's belief there was probable cause to arrest appellant was irrelevant to the legality of his actions. It is unnecessary, however, for us to decide if there was probable cause to arrest because we conclude the discovery of the wig was lawful in any case.
Rodriguez testified he planned to release appellant, and he was in the process of doing so when Proctor made his plain sight discovery. It appears that the period of time between Rodriguez's decision to release appellant and the discovery of the wig was short. The discovery was apparently made while Rodriguez was in the process of releasing appellant. Thus, whatever Proctor thought he was doing, he did it at a time when appellant was still lawfully at the scene.
b. Discovery of the Wig
Appellant argues the discovery of the wig in the saddlebag of appellant's motorcycle was, contrary to the factual finding of the trial court, the result of an illegal search and not as Proctor claimed a plain sight viewing. In any event, appellant argues the incriminating nature of the wig was not apparent and there was no basis for seizing it.
Appellant testified the wig was only found after Proctor removed a cover and then unzipped the bag. Proctor testified the bag was open and he saw the wig in plain sight. The trial court believed the officer. Appellant claims the wig was not in plain view because Rodriguez did not see it when he earlier watched appellant remove his wallet from the same bag. Rodriguez and Proctor viewed the saddlebag from very different locations, and Rodriguez's failure to see the wig does not render Proctor's testimony suspect.
Appellant also notes testimony from Jason Quinn at the preliminary hearing that Proctor opened the bag and pulled out the wig. First, that evidence was not offered at the section 1538.5 hearing and second, Jason may have meant the officer manipulated the bag in removing the wig not that he opened a closed container. As the factual basis for appellant's argument was not pursued and clarified during the suppression hearing, we cannot contradict the finding of the court.
Contrary to appellant's argument, the discovery of a wig in appellant's saddlebag had obvious importance given the comments of the Quinns about hair length during the show-up.
B. Evidence of Other Acts
Appellant argues the trial court abused its discretion when it admitted evidence that he in 1995 started a palm tree on fire in the median of the Interstate 8 freeway in El Cajon.
1. Background
By in limine motion, the prosecution sought the admission, pursuant to Evidence Code section 1101, subdivision (b), of three 1995 acts of arson by appellant. In one incident, appellant started five dumpsters on fire at a shopping mall; in another, he started a fire in a dumpster which resulted in the burning down of a bank and several nearby businesses; in the third, he used matches to start a palm tree on fire in the center median of Interstate 8 in El Cajon. Based on these acts, appellant was convicted of three counts of arson. The prosecution argued the evidence was admissible to prove appellant's identity, his motive and intent and that all the fires were part of a common plan or scheme.
Appellant opposed the motion.
After a hearing on the motion, the trial court found that evidence concerning the prior palm tree fire was admissible pursuant to Evidence Code section 1101, subdivision (b), and that the evidence was more probative than prejudicial within the meaning of Evidence Code section 352. The trial court excluded evidence of the other two 1995 fires as more prejudicial than probative.
At trial the parties stipulated that on December 31, 1995, witnesses saw appellant park his car, then walk up a freeway on-ramp in El Cajon wearing shorts and a shirt or jacket. Three to five minutes later, a palm tree located in the center median of Interstate 8 was seen on fire. Soon after, appellant was seen coming down the on-ramp towards his car. He walked past his car. When appellant did not return for his car, it was impounded by the police. Appellant's wallet was found in the car. On January 2, 1996, appellant appeared at the El Cajon Police Department to claim his vehicle. Interviewed by the police, appellant stated he went onto the freeway median and, using matches, he set fire to dead palm fronds at the base of the tree. The tree burned and appellant walked to his home in Alpine.
The jury was instructed it could consider the prior act in deciding whether appellant started the fire in this case, if he acted willfully and maliciously and if his actions were the result of a mistake or accident.
2. Law
Evidence Code section 1101, subdivision (b), provides in pertinent part that evidence of other crimes is admissible "when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident . . .) other than [the defendant's] disposition to commit such an act." Evidence of the defendant's commission of a crime other than one for which the defendant is then being tried is not admissible to show bad character or predisposition to criminality, but it may be admitted to prove some material fact at issue, such as motive or identity. Because evidence of other crimes may be highly inflammatory, its admissibility should be scrutinized with great care. In cases in which the prosecution seeks to prove the defendant's identity as the perpetrator of the charged offense by evidence he had committed uncharged offenses, admissibility depends upon proof that the charged and uncharged offenses share distinctive common marks sufficient to raise an inference of identity. A lesser degree of similarity is required to show a common plan or scheme and still less similarity is required to show intent. On appeal, we review a trial court's ruling under Evidence Code section 1101 for abuse of discretion. (People v. Abilez (2007) 41 Cal.4th 472, 500.)
3. Discussion
The jury was instructed that the fact appellant had in the past burned palm trees in a freeway median was admissible to prove he started the fire in this case, that he did so willfully and maliciously and the fire was not the result of an accident or mistake. The central factual issue in this case was not whether appellant was the naked person standing on the roadside watching a fire with binoculars. He clearly was. The issue was whether appellant started the fire or if he was simply an awestruck witness to a fire started by another or by an accident.
The trial court reasonably concluded the facts in both the 1995 palm fire and the burning of the pepper tree in this case were sufficiently similar to prove that he did maliciously and intentionally start the pepper tree fire. Both fires involved trees along Interstate 8 only miles apart. In the palm fire, appellant entered the freeway on foot and used an open flame device, matches, to start the fire. The fire in the present case was centered on the pepper tree. There was evidence it was started with an open flame device. Appellant was seen near the fire, presumably naked and watching the fire through binoculars. The circumstances of the two fires were sufficiently similar such that the trial court did not abuse its discretion in admitting evidence of the earlier palm fire pursuant to Evidence Code section 1101, subdivision (b).
C. Sufficiency of Evidence
Appellant argues the evidence was insufficient to prove not only that he set the fire but also that the fire was intentionally and not accidently caused.
In determining whether the evidence is sufficient to support the verdict, we review the entire record viewing the evidence in the light most favorable to the judgment and presuming in support of the verdict the existence of every fact the jury could reasonably deduce from the evidence. The issue is whether the record so viewed discloses evidence that is reasonable, credible and of solid value such that a rational trier of fact could find the elements of the crime beyond a reasonable doubt. (People v. Carter (2005) 36 Cal.4th 1114, 1156.)
The evidence clearly demonstrated that it was appellant who witnesses saw on the freeway, standing naked several feet from the fire looking at it through binoculars. While the witnesses could not positively identify appellant as the man, he fit the description of the man, rode a motorcycle matching the description of one seen near the fire, the tread on appellant's motorcycle matched fresh tracts found in open fields near the fire and in a saddlebag on appellant's motorcycle officers found a wig which witnesses stated matched the hair style of the man they saw on the freeway.
The evidence was also sufficient to support a finding that appellant intentionally started the fire. While the investigation of the fire could have been more thorough and better documented, expert investigators could find no evidence that the fire was started by an accidental cause. Appellant's behavior at the fire was unusual to say the least. Instead of reporting a fire that was an extreme danger in the locale where it occurred, appellant, naked, watched the fire from several feet away through binoculars while wearing a wig. Based on pictures found on appellant's computer, it was reasonable to conclude he has a particular interest in fires. The conclusion that appellant intentionally started the fire and that it did not have an accidental cause was strongly supported by his admitted burning of a palm tree along the same freeway several years before. The evidence was sufficient to convict appellant of arson.
D. Prosecutorial Misconduct
Appellant argues the prosecutor committed misconduct during argument when he commented on appellant's failure to testify.
1. Background
Appellant did not testify at trial.
Prior to argument, the trial court instructed the jury that before it could rely on circumstantial evidence to convict appellant, it was necessary, first, that the prosecution prove each fact essential to the conclusion that appellant was guilty, and, second, that if two reasonable explanations could be drawn from the circumstantial evidence, one favorable to the prosecution and one favorable to the defense, the jury was required to accept the one favorable to the defense.
The court instructed the jury that appellant had an absolute constitutional right not to testify, that he could rely on the state of evidence and argue the prosecution failed to prove its case. The jury was told it was not to consider for any reason and was not to discuss the fact appellant did not testify.
At the close of his argument, the prosecutor discussed the standard of proof and reminded the jurors that if there were two reasonable explanations for an event, one favorable to the prosecution and one favorable to the defense, the jury was required to accept the one favorable to the defense. The prosecutor noted, however, that if the defense explanation was unreasonable, the jury was required to reject it. The prosecutor stated in this case the only reasonable explanation was that appellant intentionally started the fire.
The prosecutor ended his argument by saying: "Ladies and gentleman, now is the time when we get to hear if his reasons for being there were reasonable or not. . . . I am confident, even after we hear this explanation, you will find the defendant is still guilty beyond a reasonable doubt, of arson."
Defense counsel began his argument by telling the jurors he did not believe the prosecutor meant to change the burden of proof but reminded them that the burden of proof was on the prosecution and the defense was required to explain nothing.
The defense offered in argument was that in light of a woefully inadequate investigation of the how the fire started, there was no reasonable evidence that the fire was the result of arson. At the end of his argument, counsel again reminded the jurors that appellant had no obligation to explain anything.
The prosecutor began his rebuttal argument by stating: "Everything counsel just told you about the investigation does not amount to a defense." The prosecutor told the jury that none of defense counsel's comments about the investigation of the fire or its own expert amounted to a defense.
Counsel objected, saying the defense had no obligation to put on a defense and asked the court to so instruct the jury. The trial court told the jury the obligation was on the prosecution to prove its case.
The prosecutor agreed, telling the jury that the defense "can literally sit at that table and not say one word throughout an entire trial," and if the prosecution fails to prove its case then the defendant is not guilty. The prosecutor then stated: "That's not the situation we have here. We have a defendant who has shown you with this evidence that he committed the fire." The prosecutor then stated that what the investigator did and did not do in investigating the fire was not a defense.
Defense counsel objected again, stating it had no obligation to put on a defense. The court stated the objection was noted and told the prosecutor to continue.
The prosecutor then stated: "We have no reasonable explanation pointing to not guilty as to why [appellant] was there. We have no reasonable explanation pointing to not guilty as to what he was doing there beforehand."
Defense counsel again objected and stated that the prosecutor's argument was misconduct.
At sidebar, defense counsel argued the prosecutor was commenting on the fact appellant did not testify. The prosecutor responded that it was proper for him to argue there was no reasonable explanation for the facts except that appellant intentionally set fire to the tree. The prosecutor further stated he was not commenting on appellant's decision not to testify. The prosecutor stated he did not tell the jury appellant was required to offer a defense. The prosecutor noted that a defense was offered, i.e., there was no evidence showing a cause for the fire and no evidence that appellant's presence at the fire was illegal.
The trial court concluded the prosecutor's words were carefully chosen. The prosecutor did not comment on appellant's silence at trial. It noted that the instruction on circumstantial evidence requires the jury look for a reasonable explanation to explain the events. The prosecutor was merely arguing that the defense explanation for events was unreasonable. The court did note that in this area there is a thin line between proper and improper argument and the prosecutor needed to proceed with care.
2. Law
Griffin error occurs when the prosecutor comments on a defendant's failure to testify that invites or allows the jury to infer guilt therefrom. (Griffin v. California (1965) 380 U.S. 609 [85 S.Ct. 1224].) The offending comment may either be a direct reference to such failure or an argument that the defense has failed to contradict or deny certain evidence when such denial or contradiction could only be made by the defendant from the witness stand. Conversely, no error occurs when the comment is based on the state of the evidence or upon the failure of the defense to introduce material evidence or to call anticipated witnesses. It is also the case that indirect, brief and mild references to a defendant's failure to testify, with no suggestion an inference of guilt should be draw therefrom, have uniformly been held harmless. (People v. Bradford (1997) 15 Cal.4th 1229, 1339-1340; People v. Clair (1992) 2 Cal.4th 629, 662.)
When the prosecutor's comments are claimed to be an indirect violation of Griffin, the standard of review is whether there is a reasonable likelihood the jury misconstrued or misapplied the prosecutor's comment to refer to the defendant's failure to testify. (People v. Clair, supra, 2 Cal.4th at p. 663.)
3. Discussion
As the trial court observed, when the defendant does not testify and when the case is based on circumstantial evidence, a thin line separates the proper from the improper in commenting on the failure of the defense to offer a reasonable explanation for events. The jury was properly instructed by the court that it was not to consider or even discuss appellant's silence. After an objection during his rebuttal argument, the prosecutor and defense counsel reminded the jury appellant was not required to put on evidence and the issue was whether the prosecution had proved its case beyond a reasonable doubt.
There was certainly no direct comment by the prosecutor inviting the jury to infer guilt from appellant's silence. The closest the prosecutor came to an indirect comment violative of Griffin was when he told the jury there was no reasonable explanation for why appellant was at the scene of the fire. Even, however, if this was an indirect comment on appellant's failure to testify, it was brief and we conclude it would not have been taken by the jury to suggest an inference of guilt could be drawn from appellant's silence.
E. Sentencing
Appellant admitted three strike priors and was sentenced to a prison term of 30 years to life. He argues first, that a sentence of 30 years to life under the circumstances here amounts to cruel of unusual punishment and second, that the trial court abused its discretion when it refused his request to strike the priors.
1. Background
a. Crime
On January 5, 2006, appellant started a fire in brush along a freeway in rural San Diego County. On that day the temperature was 75 degrees, the relative humidity was 11 percent and there were east winds gusting to 23 miles per hour.
b. Strike and Non-Strike Priors
Appellant was convicted in 1991 of the misdemeanor of failing to report a motor vehicle accident as required by Vehicle Code section 20002.
In 1996 appellant was convicted of one count of the arson of a structure in violation of section 451, subdivision (c), and two counts of property in violation of section 451, subdivision (d). Sentenced to prison, appellant was paroled in August 2000 and discharged from parole in August 2003.
The events leading to appellant's 1996 convictions occurred between October 17 and December 31, 1995. In the early morning of October 17, 1995, appellant started fires in five dumpsters at or near the Grossmont Shopping Center in La Mesa.
At approximately 11:00 p.m. on December 30, 1995, appellant started a fire in a dumpster at the corner of a bank in La Mesa. In the resulting fire, the bank, a dental office and a medical office were destroyed.
On December 31, 1995, at approximately 12:30 a.m. appellant burned a palm tree in the median of Interstate 8 in El Cajon.
c. Psychological Report
A psychologist employed by the defense interviewed appellant and submitted under seal a report to the trial court before sentencing. We have reviewed that report.
2. Cruel and Unusual Punishment
Appellant argues his prison term of 30 years to life amounts to unconstitutional cruel or unusual punishment under the Eighth and Fourteenth Amendments to the United States Constitution because the sentence is grossly disproportionate to the gravity of his offense.
While an extreme sentence that is grossly disproportionate to the defendant's culpability amounts to unconstitutional cruel and unusual punishment, the Constitution does not require a strict proportionality between the crime and the sentence. Courts have noted that successful challenges to the disproportionally of a particular sentence are exceedingly rare. In weighing the gravity of the defendant's offense, it is proper to consider both the current offense and the defendant's criminal history. States have a legitimate interest in incapacitating and deterring recidivist felons. (Ewing v. California (2003) 538 U.S. 11, 20-21, 23, 29-32 [123 S.Ct. 1179]; People v. Szadziewicz (2008) 161 Cal.App.4th 823, 845-846.)
There are few crimes more dangerous than arson. That fact is amply demonstrated by the very serious outcome of appellant's 1995 crimes and by the devastation that results in this state from wild fires. There is nothing in the nature of appellant's crimes or in his history that significantly mitigates his repeated acts of arson. Imposition of a prison term of 30 years to life in this case was not cruel and unusual punishment.
While not raised by appellant, we would reach the same conclusion under the California Constitution. (See People v. Dillon (1983) 34 Cal.3d 441, 478; In re Lynch (1972) 8 Cal.3d 410, 424.)
3. Abuse of Discretion
Appellant argues the trial court erred when it denied his request to strike his strike priors.
In People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529-530, the court concluded that section 1385, subdivision (a), permits a trial court to strike prior felony conviction allegations in cases brought under the "three strikes" law. In exercising that discretion and in reviewing such a ruling, 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, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (People v. Williams (1998) 17 Cal.4th 148, 161; People v. Lee (2008) 161 Cal.App.4th 124, 127-128.)
Appellant requested the trial court strike his strike priors. Appellant argued the fire in the present case was small and contained. He urges the earlier fires that appellant started were very different from the one in this case and all occurred within days of each other. He also argues that he suffers from mild, chronic depression and has impulse control problems and his criminal history is not lengthy.
The trial court concluded it would not be appropriate to strike the strike priors.
As noted above, appellant has a history of committing arsons, an extremely dangerous crime. While he has been convicted of few other criminal acts, there otherwise seems little in his history or the circumstances of his offenses or his psychological make-up that place him outside the spirit of the three strikes law. The trial court did not abuse its discretion in refusing to strike the strike priors.
The judgment is affirmed.
WE CONCUR: McINTYRE, J., O'ROURKE, J.