Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. BA266120, Patricia M. Schnegg, Judge.
Marilee Marshall & Associates, Inc., and Jennifer L. Peabody, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews and Richard S. Moskowitz, Deputy Attorneys General for Plaintiff and Respondent.
TURNER, P. J.
I. INTRODUCTION
Defendant, Reginald Howard, appeals from his arson conviction (Pen. Code, § 451, subd. (d)) and his admission that he was previously convicted to two serious felonies. (§§ 667, subds. (a)(1), (b)-(i), 1170.12.) Defendant argues: the trial court improperly excluded impeachment testimony by an experienced arson investigator; the prosecutor improperly elicited inadmissible evidence; lesser included offense instructions on unlawful burning should have been given; and the trial court erroneously failed to strike his prior serious felony convictions.
All further statutory references are to the Penal Code unless otherwise indicated.
II. FACTUAL BACKGROUND
We view the evidence in a light most favorable to the judgment. (Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Elliot (2005) 37 Cal.4th 453, 466; People v. Osband (1996) 13 Cal.4th 622, 690; Taylor v. Stainer (9th Cir. 1994) 31 F.3d 907, 908-909.) At approximately 7:10 p.m. on November 26, 2001, Los Angeles Police Officer Mario Cubillos responded to an emergency radio call in the area of Crenshaw Boulevard and Hyde Park. When Officer Cubillos arrived in the area he saw two African-American men running in the direction of his police car. Defendant was one of the individuals. The two men split up and ran in different directions. Officers were able to catch the other individual. However, at first, defendant eluded capture. A perimeter was established in the area. A helicopter and dog handler, Officer Mike Peters, also arrived at the scene.
Officer Peters began to search for defendant. Four officers and one dog went to the area where a report of a prowler had been received. As they passed a preschool playground, Officer Peters saw defendant crouched down under the playground equipment. Two officers ordered defendant to surrender. The officers shined their flashlights on defendant. Defendant initially came forward with his hands in the air. However, defendant then turned and ran. A helicopter was overhead. Officer Peters saw defendant go over the fence of the preschool property into a residential yard.
Officer Peters waited a few minutes before entering the yard. As he did so, he noticed objects on fire within a nearby shed. Defendant had shaken a lawn mower, spilling gasoline onto the ground and various items. Defendant yelled, “‘I’m going to fucking kill you.’” The fire began to spread. Defendant had a disposable lighter in his hand. Defendant was attempting to light the gas can on fire. Defendant said, “‘I’m going to blow you up.’” The fires were waist high. Various items were on fire. Defendant kicked at things and threw burning items. Officer Peters repeatedly ordered defendant to stop and put the gas can down. Officer Peters feared that the gas can would blow up. Defendant ignored the orders, stating: “‘Fuck you. I’m going to kill you. I’m going to blow us up.’” Defendant attempted to ignite the gas can. Defendant threw numerous lit items at Officer Peters. Officer Peters’s pants were burned through. The fire continued to grow, causing smoke so thick that defendant was no longer visible. Officer Peters crawled under the smoke to locate defendant. Defendant was found under a trailer. Officer Peters had to utilize a taser to arrest defendant. Officer Peters was afraid that the entire structure would blow up and kill himself, his partners, or those inside the adjacent residence.
Francisca Santos and her husband, Samuel Magadon, lived in the residence where the fire occurred on November 26, 2001. Mr. Magadon died prior to the trial in this matter. The property that was burned belonged to Mr. Magadon. The parties agreed to the following stipulation: “It is stipulated by and between the parties that if Officer Dickerson was called to testify, he would state the following: He was overhead in a helicopter on the date in question and saw a person being pursued by [Los Angeles Police Department canine] officers. He saw that person wearing dark clothing enter the back yard at 6418 South Crenshaw Boulevard. [¶] And shortly thereafter, he observed a fire at the front and through the sides of the shed in the back yard. The person ultimately brought out of yard by the officers was the same person previously observed based upon the dark clothing. No other civilians were observed in that area.”
III. DISCUSSION
A. Exclusion of Thomas Fee’s Testimony
1. Overview
Defendant argues that the trial court improperly excluded testimony of Mr. Fee, an experienced fire investigator. Defendant further argues this ruling constituted a denial of his constitutional rights to present a defense, have a fair trial, and due process. We disagree.
2. Factual and procedural background
Defendant sought to allow Mr. Fee to impeach Officer Peters’s testimony which indicated the shaking of the lawn mower could cause a fire. Defendant expected Mr. Fee to testify that the fire would have resulted from the gasoline around the lawn mower. The following colloquy occurred: “The Court: You’re telling me this expert isn’t going to say or opine that your client was there or that your client had a lighter or any of those things took place. [¶] Mr. Redmond: Correct. [¶] The Court: So the question, then is all he can opine is I don’t think that the lawn mower had gasoline in it, because if it did, I don’t - - I think you would have seen a different burn pattern or whatever. [¶] Okay. So what? He’s not been charged with aggravated arson or using an accelerant in an arson. He has not been charged with any of those things. If you took the whole lawn mower out of the scenario, you still got - - I still got a case of arson.” The prosecutor objected on Evidence Code section 352 grounds of undue prejudice, distractions, and delay. The trial court agreed to conduct an Evidence Code section 402 hearing. At the hearing, Mr. Fee, a qualified fire investigator, testified as to what would happen if the lawnmower defendant had allegedly shaken over the fire contained gasoline or vapors. Mr. Fee testified: “[W]hat will happen is as it vaporizes from whatever the container is, whether that is a lawn mower or a gas can, you cannot stand over a flame and pour it in. The fire will crawl right up that vapor trail. And it will also involve the container that you’re holding and the area around that container.” But Mr. Fee admitted a person could ignite the gasoline in a lawnmower and not be burned. The nature of the ignition process was such that the flame could cover a 12 or even only 2 feet area. Moreover, Mr. Fee testified vapors could be expected to last three weeks after a tank was emptied of the gasoline. Also, Mr. Fee testified that when he visited the scene five years after the incident, most of the residence had been removed. Additionally. Mr. Fee testified that oil does not vaporize in the same manner as gasoline.
Evidence Code section 352 provides, “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”
The prosecutor argued that testimony about vapors, distance, temperatures, or the presence or absence of gasoline was prejudicial and distracting. The prosecutor further argued there was sufficient evidence of fire based upon eyewitness accounts. Defense counsel argued that Officer Peters’s testimony that defendant tried to spread the fire by shaking the lawn mower would be contradicted by Mr. Fee’s testimony.
In granting the prosecutor’s motion to exclude Mr. Fee’s testimony, the trial court explained: “There’s no real contention as to whether the flame should have been higher or lower or if the fire should have been intense, more intense or less intense depending on what type of - - quantity of any type of flammable liquid was in the lawn mower. The officer was not an expert. He didn’t offer an expert opinion. He didn’t opine as to what was in it. He basically just related what his observations were. [¶] It’s absolutely irrelevant if the lawn mower hadn’t even been there. The lawn mower doesn’t add or detract in this case. The fact is that the officer observed and testified that he observed [defendant] starting the fire and that he had something like a Bic lighter with a flame on it and that there was items around him that were on fire. [¶] . . . [¶] I think it’s irrelevant whether it was before or after the incident with the lawn mower.”
3. The trial court could properly exclude Mr. Fee’s testimony
The trial court could properly exclude Mr. Fee’s testimony. The United States Supreme Court has held that while a defendant is entitled to present relevant evidence; that right is not absolute. (California v. Trombetta (1984) 467 U.S. 479, 485; Chambers v. Mississippi (1973) 410 U.S. 284, 302-303.) The California Supreme Court has likewise held: “‘As a general matter, the ordinary rules of evidence do not impermissibly infringe on the accused’s [constitutional] right to present a defense. Courts retain . . . a traditional and intrinsic power to exercise discretion to control the admission of evidence in the interests of orderly procedure and the avoidance of prejudice. [Citations.] . . . .’” (People v. Cudjo (1993) 6 Cal.4th 585, 611, quoting People v. Hall (1986) 41 Cal.3d 826, 834-835.) The California Supreme Court has held: “‘The trial court has broad discretion in determining the relevance of evidence [citations] . . . .’ [Citation.]” (People v. Smithey (1999) 20 Cal.4th 936, 973, quoting People v. Scheid (1997) 16 Cal.4th 1, 14.) We examine the admissibility of the proffered evidence utilizing the deferential abuse of discretion standard of review. (People v. Cox (2003) 30 Cal.4th 916, 955 [Evid. Code § 352]; People v. Rodriguez (1999) 20 Cal.4th 1, 9; People v. Alvarez (1996) 14 Cal.4th 155, 201.) No abuse of discretion occurred.
In this case, Officer Peters testified defendant fled into the yard. Officer Peters noticed objects on fire within a nearby shed. Officer Peters said defendant shook a lawn mower spilling gasoline onto the ground and various items. Defendant then used a cigarette lighter to ignite various objects and threw them at Officer Peters. Officer Peters’s pants were burned through. Defendant also attempted to ignite a gas can. The trial court could reasonably rule whether there was gas in the lawn mower was irrelevant to the ultimate issue of defendant’s guilt. No abuse of discretion occurred. (People v. Rodriguez, supra, 20 Cal.4th at p. 9; People v. Quartermain (1997) 16 Cal.4th 600, 626.)
4. Harmless error
Even if the exclusion of such evidence was in error, it is not reasonably probable defendant would have enjoyed a more favorable verdict had the testimony been admitted. (E.g., People v. Williams (1998) 16 Cal.4th 635, 673; People v. Watson (1956) 46 Cal.2d 818, 836.) Mr. Fee’s testimony would merely have demonstrated that the fire was not related to gasoline ignition. Officer Peters’s testimony more than adequately established that defendant willfully and maliciously started the fires by using a cigarette lighter and continued to ignite items despite the repeated instructions to stop.
B. Alleged Prosecutorial Misconduct
1. Overview
Defendant argues that the prosecutor committed misconduct. Defendant asserts it was misconduct for the prosecutor to elicit testimony from Officer Peters regarding the nature of the crime to which the police responded on the date defendant was apprehended. We disagree.
2. Factual and procedural background
Before trial commenced, defendant moved to exclude any reference to the alleged robbery to which officers responded on November 26, 2001. The prosecutor agreed to limit the testimony to the fact that defendant was seen running in the area where officers received a call. On direct examination, the prosecutor asked Officer Peters, “On November 26, 2001, why were you called?” Officer Peters responded, “I was called to - - I believe the command post was at 11th Avenue and Hyde Park for an outstanding armed robbery suspect.” Thereafter, defense counsel objected. At a bench conference, the trial court admonished the prosecutor to talk to Officer Peters to insure no mention was made of the alleged robbery. The trial court told the prosecutor, “I don’t want anymore inadvertent mention.” Defense counsel did not move to strike Officer Peters’s testimony or request that the jury be admonished. Officer Peters then testified about his response to the area of 11th Avenue and Hyde Park area without mention of the reported robbery.
3. The pertinent law
The California Supreme Court has repeatedly held: “‘A prosecutor’s conduct violates the federal Constitution when it “infects the trial with such unfairness as to make the conviction a denial of due process.” [Citations.] “Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under [California] law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury.” [Citation.]’” (People v. Hinton (2006) 37 Cal.4th 839, 862-863, quoting People v. Morales (2001) 25 Cal.4th 34, 44; see also Darden v. Wainwright (1986) 477 U.S. 168, 181; Donnelly v. DeChristoforo (1974) 416 U.S. 637, 643; People v. Hill (1998) 17 Cal.4th 800, 819.)
4. Waiver
Our Supreme Court has also held: “In general, “‘“a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the same ground—the defendant [requested] an assignment of misconduct and [also] requested that the jury be admonished to disregard the impropriety.”’” [Citation.]’ [Citation.] ‘In the absence of a timely objection the claim is reviewable only if an admonition would not have otherwise cured the harm caused by the misconduct.’ [Citation.]” (People v. Hinton, supra, 37 Cal.4th at p. 863, quoting People v. Young (2005) 34 Cal.4th 1149, 1184-1185, and People v. Gutierrez (2002) 28 Cal.4th 1083, 1146.) Defendant’s claim of prosecutorial misconduct as to the prosecutor’s question has been waived because defense counsel failed to request a curative admonition.
5. No intentional misconduct occurred
Even if the misconduct issue was preserved, it is unmeritorious. Although the prosecutor’s question elicited an improper response from Officer Peters, it did not appear to be intentional. Rather, the prosecutor sought to establish the officer’s reason for being present when defendant was pursued. The prosecutor had previously agreed not to elicit questions that would link defendant to the uncharged robbery. The trial court agreed noting, “You have to paint a fair picture of how they came upon the defendant to make any sense and put it in context. This was not normal patrolling in the back of somebody’s house. They were actually out on a radio call.” Our Supreme Court has held: “Although offering evidence the prosecutor knows is inadmissible may be misconduct [citation], the adversarial process generally permits one party to offer evidence, and the other party to object if it wishes, without either party being considered to have committed misconduct. The trial court simply rules on the admissibility of the evidence, as the court did here.” (People v. Harris (2005) 37 Cal.4th 310, 344, original italics, citing People v. Scott (1997) 15 Cal.4th 1188, 1218; see also People v. Bonin (1988) 46 Cal.3d 659, 689; overruled on another point in People v. Hill, supra, 17 Cal.4th at p. 823, fn.1.) If the prosecutor continues to attempt to elicit such evidence after defense counsel objected, the misconduct is exacerbated. (People v. Smithey, supra, 20 Cal.4th at p. 960; People v. Bell (1989) 49 Cal.3d 502, 532.) That was not the case here. After the initial reference to the robbery and instruction by the prosecutor, Officer Peters testified in general terms, noting that he was briefed about “the crime” that had been reported. The prosecutor’s question did not involve the use of “deceptive or reprehensible methods” to persuade the jury. (People v. Smithey, supra, 20 Cal.4th at p. 960; People v. Samayoa (1997) 15 Cal.4th 795, 841.) As a result, defendant’s trial was not rendered fundamentally unfair.
6. Prejudice
In any event, even if the prosecutor’s question was inappropriate, it was not reasonably probable Officer Peters’s response influenced the jury’s verdict. (People v. Medina (1995) 11 Cal.4th 694, 760; People v. Stansbury (1993) 4 Cal.4th 1017, 1057; People v. Pensinger (1991) 52 Cal.3d 1210, 1250.) The jurors were instructed regarding: reasonable doubt (CALCRIM No. 220); the arguments of counsel were not evidence; and that they should “not assume that something is true just because one of the attorneys asked a question that suggested it was true.” (CALCRIM No. 222.) The California Supreme Court has consistently stated that on appeal it is presumed that the jury is capable of following the instructions they are given. (People v. Bradford (1997) 15 Cal.4th 1229, 1337; People v. Osband, supra, 13 Cal.4th at p. 714; People v. Kemp (1961) 55 Cal.2d 458, 477; see Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 803.) It is not reasonably probable that the jury would have reached a result more favorable to defendant absent the reference to the robbery. (See People v. Kipp (2001)26 Cal.4th 1100, 1130; People v. Fields (1983) 35 Cal.3d 329, 363.)
C. Instruction on Lesser Included Offense of Unlawfully Causing a Fire
Defendant argues that the trial court improperly refused to instruct the jury on the lesser included offense of unlawfully causing a fire. (§ 452.) The trial court discussed the proposed instructions with both counsel. Defense counsel argued that no one saw defendant ignite the fire initially. Thus, according to defense counsel, it could be argued defendant acted recklessly as opposed to willfully and maliciously. In refusing to give the instruction, the trial court noted: “I think we do have a situation where we have evidence on all of the elements of the charged offense. I - - I don’t think we’ve got any evidence that the offense was less than that charged, recklessly set. This isn’t a specific intent crime. The instruction will read someone commits an act willfully when he or she does it willingly, on purpose, acts maliciously, when he or she willfully does a wrong or when he or she acts with unlawful intent to defraud, annoy, or injure someone else. [¶] I think the evidence - - the only evidence that we have here is that the defendant acted willingly on purpose. I don’t think we see a situation where he recklessly knocked over a lantern which started a fire or he set fire to clothing in a closet, but didn’t really mean to set fire to the entire building. I don’t think there’s any evidence to support that.”
A trial court is obliged to instruct, even without a request, on the general principles of law which relate to the issues presented by the evidence. (§§ 1093, subd. (f), 1127; People v. Ledesma (2006) 39 Cal.4th 641, 715; People v. Wims (1995) 10 Cal.4th 293, 303; People v. Turner (1990) 50 Cal.3d 668, 690; People v. Flannel (1979) 25 Cal.3d 668, 680-681.) When the evidence is minimal and insubstantial, there is no duty to instruct. (People v. Barton (1995) 12 Cal.4th 186, 196, fn. 5; People v. Bunyard (1988) 45 Cal.3d 1189, 1232; People v. Flannel, supra, 25 Cal.3d at p. 684.) The California Supreme Court has held: “[T]he existence of ‘any evidence, no matter how weak’ will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is ‘substantial enough to merit consideration’ by the jury. [Citations.] ‘Substantial evidence’ in this context is ‘“evidence from which a jury composed of reasonable [persons] could . . . conclude[]”’ that the lesser offense, but not the greater, was committed.” (People v. Breverman (1998) 19 Cal.4th 142, 162, quoting People v. Flannel, supra, 25 Cal.3d at p. 684, fn. 12, original italics, and People v. Carr (1972) 8 Cal.3d 287, 294; see also People v. Birks (1998) 19 Cal.4th 108, 118.)
Section 451 provides in part, “A person is guilty of arson when he or she willfully and maliciously sets fire to or burns or causes to be burned or who aides, counsels, or procures the burning of, any structure, forest land or property.” Section 452 states in part, “A person is guilty of unlawfully causing a fire when he recklessly sets fire to or burns or causes to be burned, any structure, forest land or property.” In People v. Schwartz (1992) 2 Cal.App.4th 1319, 1324 our colleagues in the Court of Appeal for the Fourth Appellate District held: “Unlawfully causing a fire is a lesser included offense of arson. A defendant may be charged with unlawfully causing a fire when he or she did not specifically intend to burn a structure, but was aware of and consciously disregarded a substantial and unjustifiable risk that his or her act would cause the structure to burn. [Citation.]” (Ibid., citing In re Stonewall F. (1989) 208 Cal.App.3d 1054, 1066; see also People v. Lopez (1993) 13 Cal.App.4th 1840, 1846; People v. Hooper (1986) 181 Cal.App.3d 1174, 1182-1183.)
In this case, there is no evidentiary support for the theory that defendant started the fire of property through reckless or unintentional conduct. No witness was called by the defense or the prosecutor who testified as to how the fire initially began. Officer Peters observed defendant: shaking liquid from a lawn mower onto other objects which caught fire; igniting objects with a cigarette lighter; and, attempting to light the gas can on fire. Defendant threw burning objects at Officer Peters and said, “‘I’m going to blow you up.’” These acts were intentional and malicious. As a result, no lesser included offense instruction was warranted. Moreover, it is not reasonably probable that, had the jury been instructed on unlawfully causing a fire, it would have found that defendant acted only recklessly and not with the intent to destroy the property. (People v. Breverman, supra, 19 Cal.4th at p. 149; People v. Fry (1993) 19 Cal.App.4th 1334, 1338-1339; People v. Lopez, supra, 13 Cal.App.4th at p. 1847-1848.)
D. The Trial Court Could Properly Refuse to Strike Defendant’s Prior Convictions
Defendant’s argues that the trial court abused its discretion in refusing to exercise its section 1385, subdivision (a) discretion to strike his prior serious felony convictions. Defendant further argues his 35-years-to-life sentence constitutes cruel and unusual punishment. While the trial judge’s order is subject to review for abuse of discretion, the California Supreme Court has made clear: “‘. . . A court’s discretion to strike [or vacate] prior felony conviction allegations [or findings] in furtherance of justice is limited. Its exercise must proceed in strict compliance with [Penal Code] section 1385[, subdivision] (a), and is subject to review for abuse. . . . [¶] “The trial court’s power to dismiss an action under [Penal Code section 1385, subdivision (a)], while broad, is by no means absolute. Rather, it is limited by the amorphous concept which requires that the dismissal be ‘in furtherance of justice.’”’” (People v. Williams, supra, 17 Cal.4th at pp. 158-159, 162, quoting People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 530-531; see also People v. Garcia (1999) 20 Cal.4th 490, 499-500.)
The Romero court noted that a trial court abuses its discretion if it strikes a sentencing allegation merely on the basis of the effect on defendant: “ . . . Nor would a court act properly if ‘guided solely by a personal antipathy for the effect that the three strikes law would have on [a] defendant,’ while ignoring ‘defendant’s background,’ ‘the nature of his present offenses,’ and other ‘individualized considerations.’ [Citation.]” (People v. Superior Court (Romero), supra, 13 Cal.4th at p. 531 .) The Supreme Court further clarified the standard for reviewing a ruling on whether to strike a prior serious felony conviction: “[T]he 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. . . .” (People v. Williams, supra, 17 Cal.4th at p. 161; see People v. Carmony (2004) 33 Cal.4th 367, 377; People v. Garcia, supra, 20 Cal.4th at pp. 498-499.) “[Section 667] not only establishes a sentencing norm, it carefully circumscribes the trial court’s power to depart from this norm and requires the court to explicitly justify its decision to do so. In doing so, the law creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper.” (People v. Carmony, supra, 33 Cal.4th at p. 378; see People v. Philpot (2004) 122 Cal.App.4th 893, 904-905.)
Defendant’s criminal history dates back to age 17 when he was granted probation in June 1983 for sale of marijuana. On September 22, 1983, he was arrested for attempted murder. However, the district attorney did not prosecute. On October 31, 1984, defendant was ordered to serve 180 days in county jail and was placed on probation for three years for sale of marijuana. On September 25, 1984, defendant was convicted of grand theft person. He was ordered to serve 208 days in county jail and was placed on three years probation. On July 25, 1985, he was convicted of robbery. He was sentenced to three years in state prison. He was paroled on August 21, 1987. Thereafter, he experienced several parole violations resulting in his return to state prison. On December 30, 1986, defendant was convicted of battery on a peace officer while in prison. Defendant was sentenced to an additional 16 months in prison. On October 20, 1988, he was convicted of being a felon in possession of a gun. He was sentenced to two years in state prison. Defendant was paroled on May 3, 1990, but was returned for a parole violation. He was again paroled on April 7, 1991. On January 27, 1992, defendant was convicted of transportation of narcotics for sale. He was sentenced to four years in state prison. On April 20, 1994, defendant was charged with grand theft of an automobile. His parole was revoked in lieu of prosecution. Defendant was returned to state prison. Thereafter, his parole was again revoked on October 30, 1996. On March 24, 1998, defendant was convicted of misdemeanor marijuana possession. On March 28, 1999, defendant was again received in state prison following his conviction for making criminal threats. He was sentenced to four years in state prison. Defendant was on parole at the time of his arrest in this case on November 26, 2001. On December 15, 2003, defendant was subsequently found to be incompetent to stand trial in this matter.
At the time the section 1385, subdivision (a) motion was heard, defense counsel argued: defendant never should have been permitted to plead guilty to the criminal threats charge; the prosecutor’s case in the criminal threats case was weak; had defendant known that, he would never have pled guilty; and defendant’s first prior serious felony conviction was very old. In refusing to exercise its section 1385, subdivision (a) discretion, the trial court explained: “I’ll just summarize which I think I already told counsel, I have taken a long look at [defendant’s] prior record and based on - - since 1985, there has been virtually no significant period of time in which he has been free from state prison incarceration. And that’s 19- - - it’s 2007 today, so 22 years. [¶] There would be nothing that would mitigate under the spirit or theme of the three strikes law to strike either of the alleged strikes in this case, even though the first one being in 1985 is an old strike, he really didn’t have - - you were in prison basically, very short period of time between 1985 and today. So I see no indication that you’ve turned your life around from that standpoint. [¶] With respect to the arguing with respect to the 422, as we all know, many times the People will justify a good offer by saying that they had a weak case. I mean, I don’t know if that was it in this case. I’ve certainly heard that argument. [¶] There’s nothing in the record that suggests that other than the fact that maybe [defendant] had buyers remorse because now he thought that the People were admitting the he had - - they had a weak case. There’s nothing to suggest that there was anything other than that wrong with the plea or that he was misled when he initially took his plea agreed to the plea bargain in this case. Buyers remorse just isn’t sufficient. [¶] Later on he thinks maybe he didn’t have a strong case so he shouldn’t have pled. He got the benefit of the bargain at that time. I don’t see anything upon that basis that would warrant a striking of the strike on that basis. Furthermore, the argument that he wasn’t advised at the time of the three strikes consequences because the three strikes consequences were not in effect at the time, the appellate court decisions had basically - - you know, [defendant], you’re aware of this, basically indicated that that is not a factor.” The trial court indicated that it had read and considered numerous letters written on defendant’s behalf. There was no abuse of discretion in the trial court’s factually based decision not to strike defendant’s prior serious felony conviction findings pursuant to section 1385, subdivision (a). (People v. Cole (2001) 88 Cal.App.4th 850, 874; People v. Strong (2001) 87 Cal.App.4th 328, 346.)
Defendant argues that his sentence is so grossly disproportionate as to violate the United States and California Constitutions. (U.S. Const., 8th Amend.; Cal. Const., art I, § 17.) More specifically, defendant argues that the 35-year- to-life sentence constitutes cruel and unusual punishment. Preliminarily, defendant’s failure to object on these grounds in the trial court constitutes a waiver of the issue on appeal. In the case of In re Seaton (2004) 34 Cal.4th 193, 197-198, the California Supreme Court held: “Penal Code section 1259 provides: ‘Upon an appeal taken by the defendant, the appellate court may . . . review any question of law involved in any ruling, order, instruction, or thing whatsoever said or done at the trial or prior to or after judgment, which thing was said or done after objection made in and considered by the lower court, and which affected the substantial rights of the defendant.’ (Italics added.) Thus, as a general rule, ‘the failure to object to errors committed at trial relieves the reviewing court of the obligation to consider those errors on appeal.’ [Citations.] This applies to claims based on statutory violations, as well as claims based on violations of fundamental constitutional rights. [Citations.]” (Accord, People v. Barnum (2003) 29 Cal.4th 1210, 1224, fn. 2; People v. Saunders (1993) 5 Cal.4th 580, 590.) The courts have long held that a defendant’s failure to object to a sentencing decision is not a jurisdictional error. (People v. Scott (1994) 9 Cal.4th 331, 355 [defendant’s claim that reasons used for sentencing were “inapplicable, duplicative, and improperly weighed” was waived]; People v. de Soto (1997) 54 Cal.App.4th 1, 7-8 [improper dual use of facts underlying weapons use to impose the upper term waived by failure to impose a more specific objection at sentencing]; People v. Kelley (1997) 52 Cal.App.4th 568, 581-582 [failure to consider mitigating factors]; People v. Middleton (1997) 52 Cal.App.4th 19, 36-38 [defendant cannot object to enhancement for first time on appeal], overruled on another point in People v. Gonzalez (2003) 31 Cal.4th 745, 752, fn.3.) The cruel or unusual punishment contention has been forfeited.
Even if this issue were preserved, the trial court could properly impose the 35-year-to-life sentence in compliance with state law. Defendant was sentenced in accordance with sections 667, subdivision (e)(2)(A)(ii) and 1170.12, subdivision (e)(2)(A)(ii). As a result, defendant was subject to a 25-year term. In addition, defendant admitted that he was previously convicted of two serious felonies pursuant section 667, subdivision (a)(1). Five years is added for each of those prior convictions. Given defendant’s prior history and the facts related both to him and his offenses, no constitutional violation has occurred by reason of his 35-year-to-life sentence. (Rummel v. Estelle (1980) 445 U.S. 263, 268; Spencer v. Texas (1967) 385 U.S. 554, 560; People v. Martinez (1999) 71 Cal.App.4th 1502, 1510-1517; People v. Cooper (1996) 43 Cal.App.4th 815, 820-828; People v. Cartwright (1995) 39 Cal.App.4th 1123, 1134-1137.)
IV. DISPOSITION
The judgment is affirmed.
We concur: ARMSTRONG, J. MOSK, J.