Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 03F06958
OPINION
CANTIL-SAKAUYE, J.
Defendant Anthony Marcelous Knox waived jury trial on a multi-count information arising from allegations he raped his 14-year-old sister-in-law Kayla G. Thereafter, the court granted defendant’s motion to dismiss the charge of forcible rape alleged in count one (Pen. Code, § 261, subd. (a)(2)), and found him guilty of committing a lewd or lascivious act upon a 14-year-old child and being at least 10 years older than the victim (§ 288, subd. (c)(1) -- count two), felony unlawful sexual intercourse (§ 261.5, subd. (d) -- count three), aiding and abetting false impersonation (§ 529, subd. (3) -- count four), and misdemeanor resisting a peace officer (§ 148, subd. (a)(1) -- count five). It also found true the allegations defendant had served a prior prison term (§ 667.5, subd. (b)) and suffered three prior serious felony convictions within the meaning of the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12).
Hereafter, undesignated statutory references are to the Penal Code.
The court denied defendant’s request to dismiss two or more “strikes” and sentenced him to 26 years to life: 25 years to life in count two plus one year for the prior prison term; and 25 years to life in counts three and four, each to be served concurrently and stayed pursuant to section 654. The court did not sentence defendant for the misdemeanor in count five. The court awarded defendant 381 days of actual credit at the sentencing hearing, but the minute order and abstract of judgment reflect a total of 432 days of presentence credit.
On appeal, defendant argues he is entitled to reversal of his conviction in counts two, three and five because: (1) the trial court admitted stipulations that amounted to guilty pleas without advising him of his constitutional rights as required under Boykin v. Alabama (1969) 395 U.S. 238 [23 L.Ed.2d 274] (Boykin) and In re Tahl (1969) 1 Cal.3d 122 (Tahl), overruled in part on another ground in Mills v. Mun. Court (1973) 10 Cal.3d 288, 306-307; (2) his trial counsel provided ineffective assistance in proffering stipulations that amounted to guilty pleas with no benefit to defendant; and (3) the trial court’s coercive threats to charge two key witnesses with perjury violated defendant’s right to confrontation and to present a defense. He also argues the trial court violated his right to be present at trial by proceeding without sufficient evidence that his absence was voluntary and without allowing him to present evidence about his absence in support of his motion for new trial. Defendant challenges his sentence, arguing: (1) the court abused its discretion in denying his motion to strike prior strike convictions; (2) his sentence constituted cruel and unusual punishment; and (3) the court erred in calculating his presentence credits. We shall modify the judgment to award defendant additional presentence credits, and affirm the judgment in all other respects.
FACTUAL AND PROCEDURAL BACKGROUND
Before trial, defendant stipulated that: (1) he had sexual intercourse with Kayla G.; (2) he was 33 years old and Kayla was 14 years old at the time; (3) Kayla was not his wife; (4) as a result, Kayla gave birth to a child; (5) DNA testing established that he was the child’s father; and (6) Kayla’s doctor would testify that the child was delivered on February 7, 2003, after full term pregnancy, and that the probable date of conception was between May 10 and May 14, 2002 (pretrial stipulation).
Kayla was 17 years old at the time of trial. She lived with her grandmother, Mary B. Defendant was married to Kayla’s half-sister Ella, and was Kayla’s brother-in-law.
Ella was pregnant with her third child in April and May 2002, when Kayla was 14 and in the ninth grade. Kayla babysat for Ella at defendant’s home every other weekend for about five hours in the evening while Ella was at work. Defendant was usually at work or out doing other things when Kayla was there.
Kayla testified that she and defendant had consensual sexual intercourse on one occasion, at defendant’s house, while Ella was at work and the children were asleep. She denied that defendant forced himself on her. Kayla stated that she and defendant discussed the matter beforehand. They engaged in sexual intercourse in the bathroom, which had a lock on the door. Kayla leaned over the sink, and defendant penetrated her from behind, which was her idea. She did not think to ask him about birth control.
By July or August of 2002, Kayla knew she was pregnant as a result of the encounter. However, Kayla kept the pregnancy to herself until her grandmother, Mary B., “found out on her own” in late October 2002. When asked, Kayla told Mary B. that she and defendant “had sex together.” Mary B. told Ella what had happened. Kayla believed Mary B. contacted the police.
Kayla’s trial testimony contradicted statements she had made in January 2003 to Sacramento Police Officer Ryan Cleveringa, the investigating officer, and Detective Jim Vigon. Under Kayla’s 2003 version of the events, she was folding clothes in her niece’s room while the children were watching television in the living room. Defendant entered the room, pushed Kayla onto the bed, pulled off his pants and her pants and underwear. Kayla testified defendant overpowered her resistance and had sexual intercourse with her for 15 to 20 minutes, ejaculating inside of her while not wearing a condom. Kayla told the investigating officer that she had not had sex before or since. Kayla told substantially the same story when she spoke with the police detective a week later.
In February 2004, Kayla met with defendant’s attorney and investigator. She testified she told them “something different” from what she told Cleveringa and Vigon, specifically, that she “let” defendant “do it” to her in the bedroom because she was “curious.” Kayla denied knowing at the time that the prosecutor had recently added a forcible rape charge against defendant.
On April 12, 2004, Kayla delivered a notarized letter to the district attorney’s office stating she never had intercourse with defendant and he was not the father of her baby. At trial, Kayla admitted the letter was untruthful. When asked why she wrote the April 12, 2004 letter, Kayla testified she “wanted the calls [from people] to stop.”
Kayla also denied informing Cleveringa or Vigon that defendant told her not to tell anyone about the incident and that she was afraid defendant would hurt her. She also denied saying that defendant told her to lie about how she got pregnant by “tell[ing] them that it was somebody else.” Kayla testified she lied to Cleveringa and Vigon about defendant raping her because she was afraid of how people would view her. Kayla said she did not want people to judge her to be a “slut.” She also wanted her family to think it was defendant’s fault they had sex, not hers. Kayla testified she knew defendant had a criminal record and “had already been found bad before.”
In early February 2003, Vigon took a “DNA swab” from Kayla and her baby. Two months later, Kayla received a report stating that defendant was not the baby’s father. She contacted Vigon to question the results. When Vigon described the person who provided the DNA sample, Kayla told him the person was defendant’s cousin Lamont Whitaker. At trial, Whitaker admitted he had pled guilty to falsely impersonating defendant, but denied it was for the purpose of providing a false DNA sample for defendant. Whitaker also denied showing Vigon defendant’s identification, asserting that Vigon simply assumed he was defendant.
After Vigon confirmed that defendant was not the person who provided the DNA sample, he put out a bulletin for officers to “keep their eyes open” for defendant. During trial, defendant stipulated to the contents of the report of the officer who arrested him (midtrial stipulation).
Defendant testified at trial. He acknowledged he lied about not having sex with Kayla “all the way up until for awhile” just before trial. He also admitted trying to escape on the day he was finally arrested and that the police used a dog to capture him. However, defendant continued to deny giving Whitaker his identification the day Whitaker provided Vigon with the DNA sample. Defendant testified that Whitaker had simply accompanied him to the police station and had gone inside alone when defendant was reluctant to do so.
DISCUSSION
I.
Defendant’s Boykin/Tahl Rights
The trial court is required to expressly advise a defendant pleading guilty or no contest to a criminal charge about various constitutional rights -- including the right to trial by jury, to confront and cross-examine witnesses, and to refuse to testify on grounds of self-incrimination -- and to obtain a knowing and voluntary waiver of those rights. The record must also show that the defendant understood the nature and consequences of his or her plea. (Boykin, supra, 395 U.S. at pp. 242-244 [23 L.Ed.2d at pp. 279-280]; Tahl, supra, 1 Cal.3d at pp. 130-132.) The California Supreme Court extended the Boykin/Tahl requirements to cover “slow pleas” and other circumstances “tantamount to a plea of guilty.” (People v. Adams (1993) 6 Cal.4th 570, 576 (Adams); Bunnell v. Superior Court (1975) 13 Cal.3d 592, 605; In re Mosley (1970) 1 Cal.3d 913, 924-925.)
Defendant argues his pretrial stipulation admitting, among other things, sexual intercourse with 14-year-old Kayla, was tantamount to a guilty plea to counts two and three, and his midtrial stipulation to facts surrounding his arrest was tantamount to a guilty plea to count five. He maintains he is entitled to reversal of his conviction of those counts because the trial court failed to follow the Boykin/Tahl requirements.
A. The Stipulations Were Subject to Boykin/Tahl:
Circumstances “tantamount to a plea of guilty” are those in which the stipulation admits all the facts necessary for a conviction and defendant raises no affirmative defenses. (Adams, supra, 6 Cal.4th at p. 577; People v. Little (2004) 115 Cal.App.4th 766, 778 (Little).) Stipulations to evidentiary facts that do not admit every element necessary for a criminal conviction are not subject to the Boykin/Tahl constitutional requirements. (Adams, supra, 6 Cal.4th at p. 580 [admonition and waiver not constitutionally required where stipulation relieved the prosecution of the burden of offering evidence on the existence of just one element of the sentence enhancement]; People v. Gaul-Alexander (1995) 32 Cal.App.4th 735, 746-747 [admonition and waiver not constitutionally required where stipulation relieved the prosecution of the burden of proving only the actus reus of bigamy, leaving it to prove the mens rea]; compare Little, supra, at pp. 772, 778, 780 [admonition and waiver required where stipulation cited the statute and mirrored the charges].) Here, defendant’s pretrial stipulation and midtrial stipulation were tantamount to guilty pleas to counts two, three and five.
The amended information charged defendant in count two with violating section 288, subdivision (c)(1) by “willfully, unlawfully and lewdly commit[ing] a lewd and lascivious act upon and with the body of KAYLA G., a child of 14 years, with the intent of arousing, appealing to, and gratifying the lust, passions, and sexual desires of the defendant[] and the child, the defendant being at least 10 years older than the child.” Defendant’s pretrial stipulation expressly admitted all the elements of the offense except intent. The facts, as stipulated, admit sexual intercourse and are therefore sufficient to establish the requisite specific intent. (See People v. Smith (1966) 246 Cal.App.2d 489, 490-491.) Moreover, defendant never disputed intent and, in fact, both parties and the court understood that his stipulation “admit[ted] to Count[] Two . . . .”
At oral argument, the Attorney General noted that defendant’s stipulation in count two omitted the intent element. Referring to cases after Bunnell v. Superior Court, supra, 13 Cal.3d 592, he argued that a lesser standard of review applies to the failure to give the required admonitions in count two because the stipulation was not tantamount to a guilty plea. As we shall explain, the lesser standard is inapplicable here because we decide that the stipulation was tantamount to a guilty plea.
Count three charged defendant with violation of section 261.5, subdivision (d) by being over the age of 21 years and “engag[ing] in an act of unlawful sexual intercourse with KAYLA G., a minor under the age of 16 years . . . .” Defendant’s pretrial stipulation admitted all the elements of that offense. The Attorney General acknowledges defendant admitted every element of count three by entering into the pretrial stipulation.
Count five charged defendant with the misdemeanor violation of section 148, subdivision (a)(1) by his “willfully and unlawfully resist[ing], delay[ing] and obstruct[ing] SACRAMENTO POLICE OFFICER KNUTILA, BADGE #491, who was then and there a peace officer attempting to and discharging the duty of his/her office and employment.” In his midtrial stipulation, the parties stipulated to the contents of Officer Knutila’s report. When the prosecutor added, “The stipulation would also be that this report is accurate with respect to what happened,” defense counsel responded, “Yes.” Defense counsel then stated, “it would be consistent with the testimony the officer would give.” The report established that Officer Knutila had noted defendant’s license plate number and photo from an alert he had read a couple of weeks before. Knutila followed a car bearing the license number as it abruptly pulled into a parking lot. A passenger resembling defendant jumped out and fled. Knutila yelled for defendant to stop and ran after him. Defendant continued to run, jumping several fences and hiding behind some bushes. By that time, Officer Jenkins and a K-9 officer arrived to assist Knutila. When defendant was slow to come out, the dog went after him in the bushes, and bit defendant on the arm. Defendant still did not comply with repeated commands to come out. The officers “dragged [defendant] out of the bushes,” and placed him under arrest. Contrary to the Attorney General’s argument on appeal, we are satisfied defendant’s stipulation was “tantamount to a guilty plea” because the facts of Knutila’s report satisfied all the elements of the charged offense. This was clearly the understanding of defense counsel and defendant.
Although the trial court erred in not advising defendant of his Boykin/Tahl rights before accepting the stipulations, as we shall explain the error was harmless. (People v. Howard (1992) 1 Cal.4th 1132, 1174 (Howard).)
B. The Stipulations Were Voluntary and Intelligent:
If the stipulation is not “tantamount to a guilty plea,” courts will affirm where “it is not reasonably probable an outcome more favorable to defendant would have resulted had the error not been committed.” (People v. Wright (1987) 43 Cal.3d 487, 491.) However, where, as here the stipulation is tantamount to a guilty plea, the “failure to specifically articulate each of the three constitutional rights waived by a plea of guilty” requires reversal unless “the record . . . makes it clear that the ‘plea was voluntary and intelligent under the totality of the circumstances.’” (Adams, supra, 6 Cal.4th at p. 576, fn. 5, quoting Howard, supra, 1 Cal.4th at p. 1178.) Having reviewed the record, we conclude the totality of the circumstances show the pretrial and midtrial stipulations were voluntary and intelligent.
At the start of trial, defendant was informed he faced between 25 and 60 years to life based on the three felony charges, the great bodily injury enhancement and the three prior serious felony convictions or “strikes.” The pretrial stipulation concerning counts two and three was connected to defendant’s decision to waive jury trial. In open court the stipulation and waiver of jury trial were raised and discussed on the record at the same time. The court’s admonitions regarding waiver of jury trial were interwoven with the discussion about the pretrial stipulation. Defendant agreed to the stipulation in the middle of the admonitions on the jury trial waiver. Having entered into the first stipulation in the midst of expressly waiving his right to jury trial and electing to proceed by way of court trial is a circumstance leading us to conclude that defendant’s stipulations were entered into voluntarily and intelligently.
At oral argument, in response to a question from the court, the Attorney General represented that defendant’s exposure at the start of trial was 35 years to life, composed of one term of 25 years to life plus two five-year priors. This estimate failed to account for the felony violation of section 529, subdivision (3) alleged in count four which the court could have sentenced separately. The trial court’s estimate of “more like” a minimum of 50 or 60 years appears to be more accurate.
Further circumstances leading us to conclude that the stipulations were voluntary and intelligent are revealed in the defense strategy. The record reveals the defense strategy was to waive jury trial, then admit counts two (§ 288, subd. (c)(1)) and three (§ 261.5, subd. (d)) in order to establish defendant’s forthrightness and willingness to accept responsibility for his actions such that he could then credibly deny and successfully defend the forcible rape charge in count one.
Specifically, defendant emphasized the pretrial stipulation in his argument on the section 1118 motion to dismiss the charge of forcible rape in count one. The following exchange took place between the court and defense counsel: “[DEFENSE COUNSEL]: Normally defense wouldn’t respond to, terribly much to this motion because we wouldn’t want to, if you will, tip our hand to our defense, but I think this case is rather straightforward. This has been a case all along where my client has admitted that he had sexual intercourse with Kayla G.
“THE COURT: All along?
“[DEFENSE COUNSEL]: Well, in front of this trial, yes.
“THE COURT: Oh, all right.
“[DEFENSE COUNSEL]: Okay. Not since he had –- I’m saying not prior to having an attorney, okay. But here in this trial, he’s walked in and first thing we did was admit to Counts Two and Three, or stipulate to it. [¶] This being a Court trial, we’re asking for not guilty verdict [on count one] . . . .”
And, more importantly, the defense strategy appears to have been to have defendant voluntarily admit counts two and three to establish his veracity before the trial court in order to be viewed as outside the spirit of the Three Strikes law and thus worthy of leniency in the defendant’s Romero motion to strike two or more “strikes.”
People v. Superior Ct. (Romero) (1996) 13 Cal.4th 497, 530.
Specifically, defense counsel used the stipulations to argue for leniency in defendant’s motion to strike at least two of the “strikes” in furtherance of justice. Counsel stressed, “[I]t was [defendant], he was admitting to the court at that time what had occurred. He was coming forth. [¶] We can have emotional innuendos and emotional speculation as to what may have happened while he was on the run or where he went, and why he went. [¶] But the fact of the matter is we have a record before the court where, in fact, he stood up as the man he is, and he admitted to the court by stipulation, yes, through his attorney, by, I am sure, the court’s holding [defendant] to those stipulations, that he did do what he did. [¶] . . . [¶] [I] am suggesting to the court that I believe [defendant] should be given the benefit of having been straightforward to the court, and made this court aware that he was accepting responsibility for his actions. . . .” Clearly, defense counsel indicated defendant admitted what had occurred to gain a tactical advantage with the court.
In light of this strategy, the record also supports the conclusion defendant’s stipulation to the police report was voluntary and intelligent. After counsel described the nature of the stipulation, the court asked the following questions:
“THE COURT: And, [defense counsel], you have explained to your client that if you stipulate to the report, that he will most likely be found guilty of that misdemeanor charge once the Court has had a chance to review it?
“[DEFENSE COUNSEL]: Yes. Yes, I have, Your Honor.
“THE COURT: All right. Mr. Knox, is that agreeable to submit the testimony of that particular officer on the police report that he’s already written?
“DEFENDANT: Yes.”
Thus, under the totality of the circumstances, we find defendant’s stipulations were voluntary and intelligent.
II.
Ineffective Assistance of Counsel
Defendant argues he is entitled to reversal because “[t]rial counsel’s decision to formulate and propose the stipulations . . ., and apparent advice to [defendant] that he should agree to those stipulations, constituted ineffective assistance.” As defendant notes in his opening brief, “In order to prevail on [an ineffective assistance of counsel] claim on direct appeal, the record must affirmatively disclose the lack of a rational tactical purpose for the challenged act or omission.” (People v. Majors (1998) 18 Cal.4th 385, 403; People v. Frye (1998) 18 Cal.4th 894, 979-980.) “Evidentiary stipulations have long been recognized as tactical trial decisions which counsel has discretion to make without express authority of the client.” (Adams, supra, 6 Cal.4th at p. 578.) Here, the stipulations served the rational tactical purposes of providing a basis for the successful motion to dismiss count one and for claiming leniency in the face of defendant’s multiple felony convictions and three prior serious felony convictions under the Three Strikes law.
III.
Admonitions Regarding Perjury
The trial court admonished Kayla and Whitaker that it was a crime to lie on the witness stand. Defendant contends he is entitled to reversal of counts two, three and four because the trial court’s “coercive threats” violated his right to fully cross-examine witnesses and present a defense. We conclude there is no merit in this contention.
Defendant acknowledges defense counsel failed to object to the court’s admonitions. Although claims of judicial misconduct are ordinarily forfeited if no objection is made at trial (People v. Hines (1997) 15 Cal.4th 997, 1041), we address the merits of defendant’s argument to forestall a subsequent claim of ineffective assistance of counsel (People v. Martin (1995) 32 Cal.App.4th 656, 661, disapproved on another ground in People v. Deloza (1998) 18 Cal.4th 585, 600).
“Just as an accused has the right to confront the prosecution’s witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law.” (Washington v. Texas (1967) 388 U.S. 14, 19 [18 L.Ed.2d 1019, 1023].) In Webb v. Texas (1972) 409 U.S. 95 [34 L.Ed.2d 330] (Webb), the United States Supreme Court reversed the defendant’s burglary conviction, holding that the trial judge’s actions deprived the defendant of due process. (Id. at p. 98 [34 L.Ed.2d at p. 333].) “The trial judge gratuitously singled out . . . one witness for a lengthy admonition on the dangers of perjury. But the judge did not stop at warning the witness of his right to refuse to testify and of the necessity to tell the truth. Instead, the judge implied that he expected [the witness] to lie, and went on to assure him that if he lied, he would be prosecuted and probably convicted for perjury, that the sentence for that conviction would be added on to his present sentence, and that the result would be to impair his chances for parole. At least some of these threats may have been beyond the power of this judge to carry out. Yet, in light of the great disparity between the posture of the presiding judge and that of a witness in these circumstances, the unnecessarily strong terms used by the judge could well have exerted such duress on the witness’ mind as to preclude him from making a free and voluntary choice whether or not to testify.” (Id. at pp. 97-98 [34 L.Ed.2d at p. 333].) Due process also requires reversal where the prosecutor’s actions force a material witness to invoke his or her Fifth Amendment privilege not to testify. (People v. Bryant (1984) 157 Cal.App.3d 582, 588 [the prosecutor’s statements “went far beyond reminding the witness of the duty to tell the truth or advising him of the consequences of perjured testimony”] (Bryant); see also United States v. Smith (D.C. Cir. 1973) 478 F.2d 976, 979 [“the prosecutor’s warning was plainly a threat” and “was calculated to transform [the witness] from a willing witness to one who would refuse to testify”].)
In order to establish a due process violation for coercive threats, defendant must demonstrate that the governmental agent committed misconduct by “engag[ing] in activity that was wholly unnecessary to the proper performance of his duties and of such a character as ‘to transform [a defense witness] from a willing witness to one who would refuse to testify . . . .’ [Citations.]” (In re Martin (1987) 44 Cal.3d 1, 31 (Martin).) Defendant must also “demonstrate interference, i.e., a [substantial] causal link between the misconduct and his inability to present witnesses on his own behalf. . . . The misconduct in question may be deemed a substantial cause when, for example, it carries significant coercive force [citation] and is soon followed by the witness’s refusal to testify [citation].” (Ibid.) In addition, the defendant must “‛at least make some plausible showing of how [the] testimony [of the witness] would have been both material and favorable to his defense.’ [Citation.] Under California law he must show at least a reasonable possibility that the witness could have given testimony that would have been both material and favorable. [Citations.]” (Id. at p. 32.) Defendant fails to satisfy the three-part test for coercion or judicial misconduct set forth in Martin as to admonitions given to Kayla and Whitaker.
At the start of direct examination, it became clear Kayla was reluctant to testify about her earlier statements to law enforcement. The court held an unreported bench conference at the request of defense counsel, then admonished Kayla at the request of the prosecutor. The following exchange took place between the court and the witness:
“THE COURT: All right. Kayla, I’m guessing from your attitude that you’re not happy about being here; is that a fair statement?
“THE WITNESS: Yes.
“THE COURT: Okay. We all understand that. But when you took that chair, you raised your hand and promised to tell the truth. You took an oath. So you can’t just sit there and make things up and lie or anything like that. You must tell the truth. Do you understand that?
“THE WITNESS: Yes.
“THE COURT: All right. Even if it’s painful and you don’t like being here, this is Court of law. You took an oath so you have to tell the truth. All right?
“THE WITNESS: Yes.
“THE COURT: All right. Do you know what happens when you lie under oath?
“THE WITNESS: Yes.
“THE COURT: What?
“THE WITNESS: Um, there’s consequences.
“THE COURT: That’s right. That’s a crime in and of itself. So we just want to find out what happened. All right?
“THE WITNESS: Uh-huh.
“THE COURT: So the attorneys are going to ask you some more questions now. Before you answer, I want you to think, and I only want you to tell the truth. [¶] If you don’t know, you can certainly say you don’t know. If you don’t recall, you can say you don’t recall, if those are truthful answers. [¶] Do you understand how important it is?
“THE WITNESS: Yes.”
The record demonstrates that the court properly performed its duty to remind Kayla of her oath to tell the truth. The court’s statement that lying under oath is “a crime in and of itself” was made in a matter-of-fact, non-coercive manner. (Compare Webb, supra, 409 U.S. at pp. 95-96 [34 L.Ed.2d at p. 332].) Equally fatal to defendant’s claim of misconduct is the fact Kayla continued to testify in defendant’s favor. (Compare Bryant, supra, 157 Cal.App.3d at p. 590.) Kayla recanted her earlier statements to law enforcement and testified in defendant’s favor that the sexual intercourse was consensual.
During direct examination, Whitaker testified he did not misrepresent himself as defendant when he met with Detective Vigon, although Whitaker had already pled guilty to a false impersonation charge in connection with the incident. When defense counsel began cross-examining Whitaker about his meeting with Vigon, the court interjected:
“THE COURT: All right. All right. I’ve had enough of this. You are not protected from perjury charges.
“THE WITNESS: I know, ma’am. I know, ma’am.
“THE COURT: You have already pled guilty to falsely impersonating him.
“THE WITNESS: I know.
“THE COURT: And I’m going to warn you one last time. If you’re lying, the people can prosecute you for perjury. That’s another felony related to this.
“THE WITNESS: I know ma’am. I know, Your Honor. I know. I never went in there [and] showed Detective Vigon no I.D. Never.
“THE COURT: He so stupid
“THE WITNESS: No, ma’am.
“THE COURT: -- he just decided you were Anthony
“THE WITNESS: No, ma’am.
“THE COURT: You be careful. You played a game. How much time are you doing for the game you played the first time.
“THE WITNESS: I’m doing almost 14 months.
“THE COURT: Okay. That can be added to by, what, three years.
“THE WITNESS: Three years four months something.
“THE COURT: All right. Now every time either one of them asks you a question, I want you to think twice before you answer. And if the DA hears anymore lies, you know what they’re going to do? They’re going to consider arresting you again.”
Although the court used stronger language with Whitaker than it did with Kayla, the admonition was necessary to the proper performance of the court’s duties. (Martin, supra, 44 Cal.3d at p. 31.) However, even if we were to conclude it was coercive, which we do not, defendant fails to meet the second prong of the three-prong test set forth in Martin. (Id. at pp. 31-32.) The court’s strong admonition did not result in Whitaker refusing to testify further. He continued to answer defense counsel’s questions, maintaining it was his own idea to meet with Vigon and denying defendant paid him to do it.
Accordingly, the court’s admonitions did not deny defendant his constitutional right to present a defense. Both Kayla and Whitaker continued to testify and support defendant’s version of the events.
IV.
Defendant’s Absence From The Courtroom
Defendant argues he is entitled to reversal because the court proceeded with the trial in his absence without sufficient evidence that his absence was voluntary. He maintains the court compounded the error at the motion for new trial by refusing to allow him to present evidence to explain his absence. We reject defendant’s arguments.
The federal Constitution guarantees a criminal defendant the right to be present “at any stage of the criminal proceeding that is critical to its outcome if his presence would contribute to the fairness of the procedure.” (Kentucky v. Stincer (1987) 482 U.S. 730, 745 [96 L.Ed.2d 631, 647].) A criminal defendant also has the right to be personally present during critical proceedings under California constitutional and statutory law. (Cal. Const., art. I, § 15; §§ 977, subd. (b) & 1043, subd. (a); People v. Bradford (1997) 15 Cal.4th 1229, 1357.)
“A defendant’s right to presence, however, is not absolute. The high court has stated that a defendant’s ‘privilege may be lost by consent or at times even by misconduct. [Citation.]’ [Citations.] Under the Penal Code, a defendant ‘at all other proceedings’ may waive in writing the right to be personally present with leave of court. (§ 977, subd. (b)(1) . . . .) Also, a defendant’s absence ‘in a felony case after the trial has commenced in his presence shall not prevent continuing the trial to, and including, the return of the verdict in . . . [¶] . . . [¶] [a]ny prosecution for an offense which is not punishable by death in which the defendant is voluntarily absent.’ (§ 1043, subd. (b)(2)).” (People v. Gutierrez (2003) 29 Cal.4th 1196, 1202-1203, fn. omitted.) “‛An appellate court applies the independent or de novo standard of review to a trial court’s exclusion of a criminal defendant from trial, either in whole or in part, insofar as the trial court’s decision entails a measurement of the facts against the law.’ [Citation.]” (Id. at p. 1202.)
Defendant relies on People v. Connolly (1973) 36 Cal.App.3d 379, a 30-year-old case, which states, “When looking to the initial proceedings involving the determination to proceed with trial, sufficient facts must be before the court to establish what reasonably appears to be a prima facie showing of voluntary absence. In the usual case a continuation of at least a few hours in order to locate defendant is appropriate.” (Id. at p. 385.) However, Connolly also holds that in determining whether the defendant’s absence was voluntary, the court must consider the entire record, including information that was before the court when it decided to proceed, and any information or explanation that was subsequently offered to the court. (Ibid.) Here, viewed as a whole, the record supports the court’s initial decision that defendant’s absence was voluntary.
On the next to last day of trial, the court warned defendant he was going to be found guilty of at least two offenses and would go into custody the following day. The court continued, “Your failure to be present is a whole –- another charge. So you be here at nine o’clock. And when the Court pronounces you guilty on at least two charges, you be ready to go into custody. [¶] . . . [¶] I just want to make sure you understand that. We’re not going to have any struggle. We’re not going to have any arguments. . . .” Defendant responded, “Okay,” and “No problem.”
When defendant did not appear the following morning, the following discussion occurred:
“THE COURT: [Defense counsel], you have been here since nine o’clock. Any explanation why your client is still not here when it is 9:45?
“[DEFENSE COUNSEL]: No, Your Honor. I would only make a record that at about 8:40 this morning, I communicated with [defendant] by using his cell phone, that I told him to meet me in Department 24 no later than nine a.m., that we would continue with the proceedings. He assured me he would be here. He told me that he was dropping his daughter off at school, and I said, okay. . . . [¶] And at about 9:20 this morning, I called my office and asked them to use [defendant’s] cell phone number to get in contact with him to see if there is any explanation for his tardiness, and my office informed me that his cell phone was turned off or not working. [¶] . . . [¶]
“THE COURT: Well, I will entertain a motion to continue with the trial and find that his absence is voluntary and we will proceed.
“[THE PROSECUTOR]: People so move to proceed in the defendant’s absence.
“THE COURT: It would appear if he has a cell phone on him, there’s absolutely no excuse why he hasn’t communicated if he, in fact, had some sort of traffic situation. He certainly has the number of your office, [defense counsel], if he doesn’t have the number of the courtroom. [¶] So, it would appear he has, well, one, if he was alive and well at 8:20 this morning, and is carrying a cell phone, that there is no excuse for his not being here or communicating with us what his problem is.”
Thereafter, the court heard closing argument, found defendant guilty of counts two, three, four and five, found true the prior serious felony convictions, and issued a bench warrant for defendant’s arrest. Defendant was located and arrested in Nevada nearly a year later.
Defendant unsuccessfully moved for new trial, arguing, based on Connolly, that the court should have waited at least a few hours before ruling that defendant’s absence was voluntary. The court also rejected defendant’s request to present evidence on why defendant did not appear the last day of trial. It noted that “[i]n the day of cell phones, there is no reason why we would have to wait two hours to all be sure that [defendant] wasn’t going to come. [¶] In addition, as you know, he never did show up that day, the next day, or the next, what was it, eight months.” The court stated it was there “the rest of that day, all the rest of the year, and the court never heard that [defendant] had a flat tire, blow out of some kind, problem getting there. He never showed up, he never called. [¶] I have seen [trial counsel] numerous times since that trial was over, and he never told me that [defendant] got a hold of him, and said there had been a problem. So we are well beyond that now.”
Nothing in this record suggests defendant’s absence was anything but voluntary. There was no error in the court’s ruling.
V.
Defendant’s Sentence Under The Three Strikes Law
Defendant maintains the court abused its discretion in denying his request to exercise discretion under Romero to strike two or more of his “strikes” in furtherance of justice. He also contends his sentence of 26 years to life constituted cruel and unusual punishment. There is no merit in either argument.
“‘[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.’ [Citation.]” (People v. Carmony (2004) 33 Cal.4th 367, 374, 377.) A court’s decision to reject defendant’s invitation to dismiss or strike a prior serious felony conviction is reviewed under the deferential abuse of discretion standard. (Id. at pp. 374, 375.)
Here, the record amply supports the court’s finding that defendant was a repeat offender well within the spirit of the Three Strikes law. Addressing defendant, the court stated it was “really . . . astonishing to go back and try to figure out what period of your life, Mr. Knox, you were not either in jail, in prison, on diversion, on wardship, on probation.” After describing defendant’s lengthy criminal record, the court turned to the current offenses and stated: “[A]fter analyzing this many times, it is clear to me that [defendant] has earned the prison term he is going to get for one continuous course of conduct throughout his life, and that he’s always failing to take responsibility for his own actions. [¶] You deny sexual relationships, call the victim a liar, sends [sic] his cousin for DNA, and runs away from his trial. . . . [¶] You have also taken away your lawyer’s ability to credibly argue you deserve leniency. . . . [¶] You have shown utter lack of remorse, and it makes the claim that you will not reoffend absolutely unbelievable.” There was no abuse of discretion.
We also reject defendant’s claim his sentence under the Three Strikes law violates the constitutional ban on cruel and unusual punishment. First, defendant forfeited the opportunity to raise the issue on appeal by failing to object at the sentencing hearing. (People v. Kelley (1997) 52 Cal.App.4th 568, 583.) Second, even if we were to consider the comment that a sentence including two or more strikes “would be disproportionate to what the activity and behavior was in this particular case” sufficient to preserve the issue, defendant’s claim fails on the merits. Defendant acknowledges that the United States Supreme Court has upheld sentencing under the Three Strikes law against claims of cruel and unusual punishment based on arguments the sentences were “disproportionate,” even where the current crimes were not serious felonies. (See, e.g., Ewing v. California (2003) 538 U.S. 11 [155 L.Ed.2d 108]; Lockyer v. Andrade (2003) 538 U.S. 63 [155 L.Ed.2d 144].) We agree with the Attorney General that “[defendant’s] present offenses, including having unprotected intercourse with his 14-year-old sister-in-law and causing his cousin to impersonate him in an attempt to avoid punishment for that crime, are . . . more serious than the theft crimes involved in Andrade and Ewing, showing [defendant] to be even more deserving of harsh punishment.” Defendant’s sentence did not constitute cruel and unusual punishment on this record.
VI.
Presentence Credits
The parties agree the trial court erred in calculating defendant’s presentence credits. The abstract of judgment shows defendant received 288 days of actual credit and 144 days of local conduct credit for a total of 432 days of presentence credit. The probation department and the court correctly stated that defendant was entitled to 381 days of actual credit, but did not calculate the section 4019 credits. It appears the clerk inserted a completely different set of figures on the minute order and abstract of judgment. We conclude defendant is entitled to a total of 571 days of presentence credit, consisting of 381 actual days plus 190 days of custody credit. (People v. Smith (1989) 211 Cal.App.3d 523, 526.)
DISPOSITION
The judgment is modified to award defendant a total of 571 days of presentence credit and affirmed in all other respects. The trial court is directed to forward a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
We concur: DAVIS, Acting P.J., HULL, J.