Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. F07905501 Robert H. Oliver, Judge.
Emry J. Allen, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Alice Su, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Gomes, J.
A jury convicted Derric Meredith Rick Gene Stitt of the following: (1) second degree robbery (count 1; Pen. Code, § 211 ); (2) second degree commercial burglary (count 2; §§ 459/460, subd. (b)); (3) receiving stolen property (count 3; § 496, subd. (a)); (4) attempted grand theft of property (count 4; §§ 664/487, subd. (a)); (5) identity theft (count 5; § 530.5, subd. (a)); and (6) resisting a peace officer (count 6; § 148, subd. (a)(1)). In a bifurcated proceeding, the jury found true allegations that Stitt had suffered the following five prior serious or violent felony convictions pursuant to sections 667, subdivisions (b) through (i), 1170.12, subdivisions (a) through (d), and 667, subdivision (a)(1): (1) two November 8, 1983, robbery convictions (§ 211); (2) a July 3, 1985, robbery conviction; (3) a November 20, 1992, robbery conviction; and (4) a November 20, 1992, first degree burglary conviction (§§ 459/460, subd. (a)). The jury further found true allegations that the July 3, 1985 and November 20, 1992 convictions were prior convictions within the meaning of section 667.5, subdivision (b).
All further statutory references are to the Penal Code, unless otherwise stated.
Stitt filed a Romero motion, which requested, inter alia, that the trial court strike or dismiss his prior strike convictions, stay any prison term to be imposed, and order him into an in-patient drug treatment program. The trial court denied the motion and sentenced Stitt as follows: (1) an indeterminate term of 25 years to life on count 1; (2) a consecutive indeterminate term of 25 years to life on count 2; and (3) stayed indeterminate terms of 25 years to life on counts 3 through 5. The trial court also imposed a 15-year term and an additional stayed five-year term for the section 667, subdivision (a) priors.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
On appeal, Stitt contends: (1) the prosecution’s failure to timely disclose material evidence constituted prosecutorial misconduct and violated his due process rights under Brady v. Maryland (1963) 373 U.S. 83 (Brady); (2) the trial court erred when it permitted him to be impeached with his prior felony convictions; (3) the trial court’s inability to locate the section 969, subdivision (b) packet admitted as evidence at trial denies him his federal constitutional rights to due process and meaningful appellate review; (4) the trial court abused its discretion when it refused to strike his prior convictions under Romero; (5) the three strikes law is cruel and unusual punishment on its face and as applied to him; and (6) the conviction on count 3 for receiving stolen property must be reversed. As we shall explain, while we agree with the last contention and therefore will remand for reversal of the conviction on count 3, in all other respects we affirm the judgment.
FACTS
At around 6 or 7 p.m. on July 15, 2007, Rodolfo Sanchez stopped at a gas station in Fresno. After speaking with Starlene Hale about an exchange of sex for money, she got into his truck and directed him to a nearby cemetery. The two walked to a secluded area, where they removed Sanchez’s pants. Hale grabbed the pants, in which were Sanchez’s car keys and wallet, and ran away. Inside the wallet were Sanchez’s credit cards and driver’s license. At almost the same time, Stitt, who Sanchez described as having at least one tattoo on his shoulder and arm, appeared with another man. Stitt came within six feet of Sanchez and threatened him with an 18- to 24-inch long piece of metal. Sanchez was scared and started running. Sanchez saw Stitt, Hale and the other man leave together in a truck. Sanchez did not give anyone permission to take his things. Sanchez did not contact the police, although he called his credit card company when he got home.
At around 10:30 p.m. that night, an employee at a Fresno superstore sold a watch to a white gentleman who had tattoos on his arms, neck and body. The man used Sanchez’s credit card and driver’s license to make the purchase and signed Sanchez’s name on the receipt’s signature line. While the employee determined the names on the credit card and driver’s license matched, she did not look to see if the driver’s license picture matched the man’s face.
After this, a man tried to purchase a digital camera and a video camera totaling $726.53 from another store employee, Michelle Mejia, who identified the man as Stitt. Stitt gave Mejia Sanchez’s credit card. When Mejia asked for identification, Stitt gave her Sanchez’s driver’s license. While the names on the driver’s license and credit card matched, the picture on the license did not look like Stitt, as the picture was “totally different.” Mejia alerted the store manager, Francisco Hernandez, who, under the guise of needing to obtain transaction approval, took both the credit card and identification to the back of the store and called the police. Mejia stayed at the register with Stitt, who was “very jumpy,” impatient and frustrated. At one point, Hale came up to the register with a few articles of clothing and spoke with Stitt, but left when Stitt told her he was waiting for approval. After waiting 20 to 30 minutes, Stitt asked for the credit card and identification back.
While still at the register, Stitt saw a police officer, who had been dispatched to the superstore, coming toward him and began running out of the store. Although the officer gave Stitt a lawful command to stop, he continued running. The officer was unable to detain Stitt, but arrested Hale outside the store. Fresno Police Officer William Wyatt spoke with Hale after she was in custody. Officer Wyatt did not notice any symptoms that would indicate Hale was under the influence of drugs. Hale told him she had taken Sanchez’s property at the cemetery and Stitt had been there as well. She stated Stitt ran up to where she and Sanchez were, and she left the cemetery with Stitt. Hale did not mention anyone else being there.
Other officers were dispatched to the area. They saw a white male, later identified as Stitt, running through a store parking lot and attempted to detain him. When Stitt refused to stop, the officers got out of their patrol car and chased him. Eventually they caught up to him and got him on the ground. Stitt resisted the officers’ commands to place his hands behind his back and only complied after an officer applied pressure on his back.
Fresno Police Detective Richard Mora, who conducted a follow-up investigation, used a computer program to generate two photographic lineups of six persons which he showed to Sanchez, one that included a photograph of Stitt and the other a photograph of Hale. Sanchez identified Stitt and Hale as the individuals who robbed him. Detective Mora acknowledged that in Stitt’s lineup, his was the only picture that showed tattoos, and explained that while he searched the lineup the computer gave him for people with tattoos, he could not find anyone with tattoos who had facial features similar to Stitt’s, so he elected “to go with facial features.” Although Sanchez had told an officer the men at the cemetery were between 19 and 25 years old, he did not consider including individuals with tattoos who were 19 to 25 years old in Stitt’s lineup because he was trying to match Stitt’s age, which was around 44 at the time.
Hale testified she did not remember much of what happened that day because she was coming off of drugs. Hale had decided to rob someone because she needed money for drugs and planned to take Sanchez to the cemetery and rob him. She identified the two other men at the cemetery as Kyle and Jason, who were between 18 and 25 years old. After Hale ran away with Sanchez’s pants, she met up with Kyle and Jason, who drove her to another gas station, where Stitt picked her up. She did not remember Stitt going to the cemetery or telling officers he was there. Hale acknowledged she and Stitt went to the superstore, and testified she handed the credit card and identification to Stitt before they went into the store so he could purchase items for her. Hale claimed she told Stitt she had permission to use the credit card and identification, and may have told Stitt the items were stolen only after Stitt was waiting for transaction approval.
Defense
While Hale had been a co-defendant in the present case, she pled to a felony before trial. Hale confirmed her testimony was that after she ran away from Sanchez, two men who were at the cemetery gave her a ride to a gas station, where she called Mike for a ride. In response to that call, Stitt came and gave her a ride to her mother’s, where he stayed with her and worked in the yard. Hale did not tell him what had taken place at the cemetery. Hale claimed Stitt was reluctant to help her with the purchases at the superstore, but she assured him she had the owner’s permission to ask a man to help with the purchases.
Defense investigator Herbert Crumb spoke with Sanchez about the description Sanchez provided to the police on the day of the robbery. Sanchez did not deny he told the police the description included the age range of 19 to 25. Sanchez told Crumb he wasn’t very good at judging age and although he told officers the age range was 19 to 25, the individual he saw was anywhere between 30 and 40. Crumb conceded the only difference between Sanchez’s original description to police and the description he gave Crumb was the age range.
Stitt testified in his own defense. He denied being at the cemetery and stated that after Hale called for a ride, he picked her up at a gas station and took her to her stepmother’s house, where they ingested drugs. Later that day, he agreed to take Hale to the superstore and use Sanchez’s credit card and driver’s license which Hale said a friend had given her to use to purchase a digital camera. Stitt claimed he did not know the credit card had been stolen earlier that day. Hale gave Stitt Sanchez’s credit card and driver’s license in the superstore’s parking lot, and reassured him she had permission to use them. Stitt said he got nervous when the transaction approval was taking a long time, which was when Hale whispered to him that the card was stolen. Stitt told the cashier to keep the stuff and turned to leave the store when he saw a cop. Stitt said he ran because he was afraid due to his criminal record. When he ran out of the store, he went across the street, sat down, and either passed out or fell asleep. He awoke and ran some more when officers approached him. Stitt conceded he resisted the officers who arrested him.
Although Stitt admitted on cross-examination that he used Sanchez’s credit card and identification to buy the watch, and signed Sanchez’s name, he claimed he never intended to pretend he was Sanchez. Stitt admitted he had two prior convictions for robbery in 1984, robbery convictions in 1985 and 1992, a “theft-related felony” conviction in 1985, and a residential burglary conviction in 1992.
When recalled, Sanchez remembered viewing the photographic lineup and identifying Stitt. Sanchez admitted the individuals in the lineup did not look to be between 19 and 25 years old. He identified Stitt in the lineup based on “his face only” and not on his tattoos. Sanchez agreed he initially lied to police when he stated he met Hale at the circus that day, but he later told police he had not been completely forthright and had actually seen Hale when he was driving and she was walking on the side of the road.
DISCUSSION
I. The Prosecution’s Suppression of the Photographic Lineup
Stitt contends the prosecutor’s failure to timely disclose a police report that contained Sanchez’s description of the men at the cemetery and the photographic lineup constitutes prosecutorial misconduct under federal and state law, as well as a Brady violation. We disagree.
Trial Proceedings
While a public defender was appointed to represent Stitt at the July 18, 2007 arraignment, a conflict was declared on July 24, 2007 and Stitt was appointed counsel from the alternate defender’s office, which represented Stitt at the August 29, 2007 preliminary hearing. On February 5, 2008, the first day of trial, defense counsel, who was from the alternate defender’s office but did not represent Stitt at the preliminary hearing, reported she had received a police report and photographic lineups that had not been provided to her previously. The prosecutor stated the information was not new and should have been provided with the original discovery. Defense counsel explained the report was not in the alternate defense office file and she had no reason to believe it had been received by her office. The court granted defense counsel’s request to revisit the issue after she had a chance to review the documents.
All subsequent references to dates are to dates in 2008 unless otherwise indicated.
Defense counsel subsequently filed a motion for sanctions or dismissal based on asserted violations of the California discovery statutes, Brady, and denial of Stitt’s rights to confrontation and due process, arising from the prosecutor’s failure to disclose evidence with respect to the out-of-court identification procedure, Sanchez’s out-of-court identification of Stitt, and Sanchez’s identification statement. At the hearing on the motion, defense counsel stated that based on her knowledge, her office had never received the photographic lineup and the day before trial was the first time she received the lineup and Detective Mora’s report, which was dated July 19, 2007 — the date the photographic lineup was actually shown to Sanchez.
Defense counsel confirmed she was asking the court to (1) dismiss the case or impose some other evidentiary sanction against the People because of the failure to provide the additional reports in a timely fashion in violation of Stitt’s due process rights and section 1054.1, or (2) take some action with respect to Sanchez’s identification of Stitt, e.g., preclude his testimony, as he was shown an impermissibly suggestive lineup that resulted in an irreparable misidentification or substantial likelihood of that. Defense counsel asserted that because the defense was not aware of the photographic lineup, Sanchez could not have been cross-examined at the preliminary hearing about his identification of Stitt, and argued there was nothing to suggest Sanchez had an independent basis for identifying Stitt other than Stitt being the only person in the lineup with visible tattoos.
The prosecutor asserted the reports were part of the original discovery provided to defense counsel at the arraignment, although he did not have personal knowledge of this since he did not handle the arraignment and acknowledged Sanchez was shown the lineup the day after the arraignment. He also did not have a record of any discovery being turned over after the arraignment, although he believed the reports were turned over before the preliminary hearing since Stitt’s counsel did not ask Sanchez at that hearing more questions about his identification of Stitt. The prosecutor argued the lineup was not unduly suggestive because all of the individuals were of a similar age group, and had similar characteristics and facial features.
The court found a serious issue had been raised regarding whether the defense was provided the discovery earlier, noting that neither attorney could personally vouch for whether that had occurred. The court thought there was “sufficient evidence to suggest that it probably did not occur until the beginning of this trial.” The court stated that while the failure to disclose “may be a technical violation” of the prosecutor’s obligation under section 1054.1 to provide the materials 30 days before trial, “in the court’s view it certainly doesn’t rise to the level of a due process violation. There’s no suggestion at this point that this is Brady material at all. As a matter of fact, I think there’s an argument at least that it further demonstrates the defendant’s culpability in the fact that it’s a previous identification of him in other than a courtroom setting. So I’m not inclined to accept the principle right now that this is Brady information at all.” The court denied the request to dismiss the case or impose an evidentiary sanction.
With respect to whether the lineup was unduly suggestive, the court found the issue premature and speculative, since “all kinds of things could have happened” when Sanchez was shown the photographic lineup, and offered the defense the opportunity to hear testimony from Sanchez and Detective Mora on that issue. Defense counsel requested a continuance of the trial so she could have her investigator interview Sanchez and possibly retain an eyewitness identification expert; she renewed that request after the court gave her an opportunity to discuss the options with Stitt. The prosecutor informed the court he had spoken with the prosecutor who handled the case before him, who told him everyone was aware of the information before the preliminary hearing, although she could not point to a specific date when the information was turned over and was unwilling to come to testify under oath that she gave the discovery over on a particular date. The court stated it did not need to go any further “on that” and continued the trial until March 13.
The trial began on April 22. Included in defense counsel’s in limine motions were motions to dismiss count 1 or exclude Sanchez’s statements to officers and at the preliminary hearing regarding his identification of Stitt on the grounds of denial of due process because (1) the prosecution suppressed the police report that stated Sanchez had been shown a photographic lineup and identified Stitt as being present at the robbery, and (2) the photographic lineup was unduly suggestive. Noting that defense counsel would have the opportunity to fully and completely cross-examine Sanchez during trial, the court denied the motion with respect to the prosecution’s failure to provide the report and photographic lineup before the preliminary hearing. With respect to the suggestiveness of the lineup, the court delayed ruling on the motion so it could study the issue further.
The following day, the prosecutor informed the court that he had reached an agreement with defense counsel that the prosecution would not seek to introduce the photographic lineup of Stitt and Sanchez would not testify regarding it, but Sanchez would be able to testify regarding his in-court identification of Stitt at the preliminary hearing.
At trial, Sanchez testified that of the two men at the cemetery, he paid more attention to Stitt because Stitt was closer to him and looked directly at him, which allowed him to get a good look at Stitt’s face. Sanchez was able to see the tattoo on Stitt’s body, but did not remember what the tattoo depicted. Sanchez further testified he had identified both Hale and Stitt at the preliminary hearing; he had given police a description of Stitt when he first spoke to them, which was “[m]ore or less the same description of what [Stitt]... looked like”; he did not remember exactly the description he gave police; he did not know Stitt’s age, but thought he looked to be between 30 and 35 years old; and he knew Stitt was the person he saw at the cemetery. On cross-examination, Sanchez testified he did not remember telling police that the men were between 19 and 25 years old. Sanchez admitted he could not tell “exactly very well” what the man who approached him looked like, explaining: “I don’t forget his face, but the rest I didn’t even pay attention.” Sanchez agreed everything at the cemetery happened very fast.
During the defense case, defense counsel informed the court she wanted to recall Sanchez so she could question him about his ability to identify Stitt based on his viewing of the photographic lineup. In a discussion outside the jury’s presence, defense counsel explained to the court it was her position that Sanchez did not remember Stitt’s face from the cemetery, but he remembered it from the photographic lineup he saw four days after the crime. The prosecutor objected to the defense recalling Sanchez for this purpose, explaining that the prosecution had intended to use the photographic lineup but agreed not to do so because the court had “made it clear” that it would grant the defense’s motion in limine to exclude the lineup, and to allow the defense to bring the lineup in now would make it appear as if the prosecution was “hiding the ball.” The prosecutor asked to reopen the People’s case-in-chief so he could call the detective who showed the lineup to Sanchez. The court granted the People’s request.
The court read the following stipulation to the jury: “It is stipulated between the parties[,] the Defense, the Prosecution and this Court[,] that the defense previously sought to exclude evidence of a photo line-up. The Court granted that request to exclude that evidence. Based upon that order, the People did not previously introduce the photo line-up into evidence. The Defense has now withdrawn their objection and wishes the Court to order that the photo line-up be admitted into evidence for purposes of questioning Mr. Sanchez regarding identification issues. Based upon this change of position, the Court is allowing the People to reopen their case regarding testimony regarding the photo line-up.”
Detective Mora then testified about his compilation of the photographic lineup and Sanchez’s identification of Stitt from the lineup. He explained that before showing Sanchez the lineup, he advised him that the lineup may or may not contain the person who committed the crime being investigated, that hairstyles and beards may change, complexions might not always be the same, it was important for him to pick the right person, and to let him know if he didn’t see the person involved. When he showed Sanchez the lineup, Sanchez scanned every photo and then “key[ed] in” on Stitt’s photo, which he pointed to and said “this one right here.” Sanchez confirmed that was the person who robbed him. When defense counsel recalled Sanchez, she showed Sanchez the lineup and asked if he recognized it. Sanchez responded, “I think it’s him.” Sanchez confirmed that was the lineup he was shown and testified he did not talk about the tattoos or the ages of the individuals in the photos.
Analysis
Stitt first contends that the prosecution’s suppression of the photographic lineup, Sanchez’s identification before the preliminary hearing and his statements to police constituted prosecutorial misconduct that rendered his trial fundamentally unfair. Under federal law, a prosecutor’s conduct constitutes misconduct if it “‘so infected the trial with unfairness as to make the resulting conviction a denial of due process.’” (Darden v. Wainwright (1986) 477 U.S. 168, 181.) “‘Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves “‘“the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.”’” (People v. Hill (1998) 17 Cal.4th 800, 819.)
Stitt has not demonstrated that the prosecutor engaged in misconduct within the meaning of either the state or federal definition. Stitt has not shown that the prosecutor’s failure to disclose the photographic lineup or Sanchez’s description of the robbers in a timely manner was intentional or constituted deceptive or reprehensible conduct. The belated production of the evidence did not render Stitt’s trial fundamentally unfair. After the trial court found that the evidence was not provided to defense counsel until the eve of trial, it granted a continuance of the trial so the defense could investigate further. At trial, defense counsel was able to fully cross-examine Sanchez about his identification of Stitt as the robber and to question him about the photographic lineup, the use of which defense counsel stipulated to at trial. From this, defense counsel was able to argue in closing that Sanchez identified Stitt from the lineup because his picture showed a tattoo. Defense counsel also was able to cross-examine Detective Mora about the lineup and Sanchez’s statements about the robbers’ ages. Simply put, defense counsel was able to develop fully the inconsistencies in Sanchez’s description of the robbers, as well as the inconsistencies between that description and his identification of Stitt from the photographic lineup.
On appeal, the People contend that it can be presumed from the questioning at the preliminary hearing that the evidence was provided before that hearing. In ruling on the defense motion in February 2008, however, the trial court found the evidence had not been provided until the eve of trial. This finding is supported by the record, as shown by the prosecutor’s acknowledgement that he had no personal knowledge or notation in his file that could prove when the evidence was turned over to the defense and defense counsel’s statements that the evidence was not in the defense file. Accordingly, for purposes of this discussion, we will presume that the evidence had in fact not been turned over until February 2008.
But even if we were to conclude otherwise, prosecutorial misconduct requires reversal of a conviction only if it is prejudicial. “Misconduct that infringes upon a defendant’s [federal] constitutional rights mandates reversal of the conviction unless the reviewing court determines beyond a reasonable doubt that it did not affect the jury’s verdict. [Citations.] A violation of state law only is cause for reversal when it is reasonably probable that a result more favorable to the defendant would have occurred had the district attorney refrained from the untoward [conduct].” (People v. Pigage (2003) 112 Cal.App.4th 1359, 1375 (Pigage).)
Stitt cannot show prejudice because apart from Sanchez’s identification of Stitt as one of the robbers, other evidence placed Stitt at the scene of the robbery. Significantly, Hale told the officer that day that Stitt was at the cemetery. Hale’s statement, coupled with Stitt’s possession and use of Sanchez’s credit card just hours later, showed Stitt’s presence there. Moreover, defense counsel was able to cross-examine Detective Mora about the photographic lineup and cross-examine Sanchez regarding his identification of Stitt and the photographic lineup, and from there assert that Sanchez identified Stitt because he was the only man in the lineup with a tattoo, rather than from his independent recollection of the man who was at the cemetery. While Stitt asserts Sanchez’s identification would have been cast into doubt had he been asked about the photographic lineup at the preliminary hearing, there is nothing in the record to suggest that Sanchez would have testified any differently than he did at trial, i.e. that Stitt was the person he saw at the cemetery and he picked Stitt out of the lineup based on his face, not his tattoos. In short, even were we to agree with Stitt’s claim that prosecutor engaged in misconduct, that error was harmless beyond a reasonable doubt in this case. (Pigage, supra, 112 Cal.App.4th at p. 1375.)
Because Stitt cannot show prejudice, his claim that the prosecution’s failure to provide the identification and lineup before the preliminary hearing constituted a Brady violation also must fail. Under Brady, supra, 373 U.S. 83, 87, the prosecution must not suppress “evidence favorable to an accused.” A failure to disclose such evidence, whether willful or inadvertent, violates due process if the evidence “is material either to guilt or to punishment.…” (Ibid.) Evidence is material only if there is “‘… a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.’” (In re Williams (1994) 7 Cal.4th 572, 611.) Evidence “favorable to the accused” includes both exculpatory evidence and impeachment evidence. (Strickler v. Greene (1999) 527 U.S. 263, 281-282.)
The “touchstone of materiality is a ‘reasonable probability’ of a different result, and the adjective is important. The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence. A ‘reasonable probability’ of a different result is accordingly shown when the government’s evidentiary suppression ‘undermines confidence in the outcome of the trial.’” (Kyles v. Whitley (1995) 514 U.S. 419, 434.) In determining materiality, “[t]he reviewing court should assess the possibility that such effect might have occurred in light of the totality of the circumstances and with an awareness of the difficulty of reconstructing in a post-trial proceeding the course that the defense and the trial would have taken had the defense not been misled by the prosecutor’s incomplete response.” (United States v. Bagley (1985) 473 U.S. 667, 683.)
For the reasons stated above, Stitt has not demonstrated any prejudice from the late disclosure. The record shows that the disclosure of the evidence was not so late that appellant could not effectively address it; since the trial was continued, defense counsel was able to fully cross-examine Sanchez and Detective Mora about the photographic lineup, and argue to the jury that Sanchez identified Stitt because of his tattoo. “No denial of due process occurs if Brady material is disclosed to appellees in time for its effective use at trial.” (United States v. Higgs (3d Cir. 1983) 713 F.2d 39, 44.)
Furthermore, Stitt has not shown that the information belatedly discovered was material under Brady. Evidence other than Sanchez’s identification of Stitt placed Stitt at the scene of the robbery, namely Hale’s statement to the officer that Stitt was there and Stitt’s possession of Sanchez’s credit card just hours later. Defense counsel was able to cross-examine Detective Mora about the photographic lineup and cross-examine Sanchez regarding his identification of Stitt from the lineup, and argue that Sanchez identified Stitt because he was the only man in the lineup with a tattoo, not from his independent recollection of the man who was at the cemetery. Stitt has not shown that it is reasonably probable the verdict would have been different had the evidence concerning the photographic lineup and Sanchez’s statements to police been disclosed earlier by the prosecution, nor does the prosecution’s belated disclosure of that evidence undermine our confidence in the verdict. Accordingly, the court did not err in finding no Brady violation occurred.
II. Impeachment with Prior Convictions
Stitt contends the trial court abused its discretion in permitting the prosecutor to use five prior felony convictions for impeachment. He claims the convictions were remote; admission of the convictions was prejudicial by virtue of their sheer number; and that, because the prior offenses were based on similar conduct, the court at least should have “sanitized” them. We find no abuse of discretion.
Trial Proceedings
Stitt brought a motion in limine to exclude his prior felony convictions, which the court deferred ruling on until it was determined whether Stitt would testify. When the court took the matter up before Stitt’s testimony, the prosecutor explained that Stitt had six felony convictions of the following crimes of moral turpitude: (1) two 1984 robbery convictions arising from the same incident; (2) a 1985 robbery conviction; (3) a separate 1985 forgery conviction; and (4) 1992 convictions for robbery and residential burglary arising from the same incident. The court offered to sanitize the names of the convictions. Defense counsel requested the crimes be described as “theft-related crimes,” while the prosecutor asked to be allowed to impeach with the names of the crimes.
The court noted the second 1985 conviction for forgery had not been brought to its attention before, which the prosecutor agreed was a theft-related felony. The court ruled that the each crime could be described as a “theft-related felony.” The court further ruled that Stitt could be impeached with only one of the 1984 convictions, since the two 1984 convictions arose from the same incident, one of the 1992 convictions, for the same reason, and both of the 1985 convictions since they occurred at different times. Accordingly, the court stated the jury was entitled to know about: “a 1984 theft-related conviction, a 1985 theft-related conviction, a 1985 theft-related conviction and a 1992 theft-related conviction.”
On direct examination, the following exchange occurred between defense counsel and Stitt:
“Q. Can you explain to this jury why you didn’t just stay there and explain to the officer that hey, I didn’t know it was stolen?
“A. Can I explain to them?
“Q. Um-hum.
“A. I was -- I was afraid to, um, stay there and try to clean it up, talk my way out of it.
“Q. And why were you afraid?
“A. Because I got five strikes, and I just freaked.
“Q. You have a prior past?
“A. Yes.
“Q.... Having a past criminal record, did you feel that whatever you said to the officer would not be believed?
“A. You know, honestly, I can’t say that that’s what went through my mind. What went through my mind was oh, no, is what went through my mind really. I was just scared. I can’t say that I thought those thoughts.
“Q. Okay.
“A. I don’t know. I just know I thought I gotta get out of there. That’s what I thought.
“Q. Okay. Can you explain why you felt a need to get out of there?
“A. Um, isn’t fear enough reason to -- yeah, I’m an ex-felon.
“Q. Let me stop you there. I’m not asking you to speculate. I’m not trying to put words in your mouth. I just want the jury to understand why you ran from police. Is it your testimony you ran because you were afraid?
“A. Yeah.
“Q. Okay. And can you tell the jury what you were afraid of?
“A. Life.”
“Q. Can you elaborate on that?
“THE COURT: Ms. [Defense Counsel].”
After that, a sidebar was held. Later on direct, Stitt admitted he resisted the officers and he did so because of his past criminal record. Stitt also responded “Yes,” when defense counsel asked him if this past criminal record was “theft-related offenses.”
On cross-examination, the prosecutor asked Stitt whether it was true he suffered two felony convictions for robbery in February 1984, a robbery felony conviction in August 1985, a theft-related felony conviction in October 1985, and robbery and residential burglary convictions arising from the same incident in 1992. Stitt confirmed he suffered each conviction.
After Stitt’s testimony, the court explained, outside the jury’s presence, the discussion held during the sidebar. The court noted that Stitt had volunteered that he had five strikes and used the term “life,” and stated the prosecutor accordingly had asked to be allowed to inquire as to the description of the felonies “in excess of those which the Court had ruled,” except for the forgery, which was still referred to as a theft-related offense. The court explained that “[w]ithout objection, that was the state of the testimony which the Court allowed given Mr. -- Mr. Stitt’s unsolicited response.” The court noted Stitt was present during its ruling on the in limine motion and the court’s limitation as to the number of prior convictions that could be mentioned, upon which Stitt expanded, and that defense counsel indicated it was not her intent that he discuss “that penalty or punishment.” Defense counsel explained that she discussed with Stitt before his testimony that the People would be able to use the four felonies as theft-related to impeach him and his past was being sanitized so as not to unduly inflame the jury, and Stitt “knowing that the jury would learn of his past, communicated that he wanted to take the stand and that he was not concerned about the jury learning of his past criminal record.”
Analysis
Any witness in a criminal trial may be impeached with a prior felony conviction. (Evid. Code, § 788; People v. Sizelove (1955) 134 Cal.App.2d 104, 108.) The rationale is that the conviction is relevant to the jury’s assessment of the witness’s credibility, since the offense may reflect on the witness’s honesty and veracity. (People v. Castro (1985) 38 Cal.3d 301, 314 (Castro); People v. Antick (1975) 15 Cal.3d 79, 97-98, disapproved on other grounds in People v. McCoy (2001) 25 Cal.4th 1111, 1123.)
The California Supreme Court in Beagle held that admissibility of prior felonies is subject to the trial court’s discretion pursuant to Evidence Code section 352, which allows the trial court discretion to exclude evidence if its probative value is substantially outweighed by the probability that its admission would create a danger of undue prejudice. (People v. Beagle (1972) 6 Cal.3d 441, 452-453.) In Castro, the court further held that, subject to the trial court’s discretion under section 352, only felonies involving moral turpitude (Castro, supra, 38 Cal.3d at p. 306), or a “ general readiness to do evil, ” may be used for impeachment (id. at p. 314).
A trial court’s decision to admit or exclude evidence under Evidence Code section 352 is reviewed for abuse of discretion. (People v. Mendoza (2007) 42 Cal.4th 686, 699.) A trial court’s exercise of discretion will not be disturbed on appeal unless the court exceeds the bounds of reason such that the result manifests an injustice. (People v. Green (1995) 34 Cal.App.4th 165, 182-183 (Green); People v. Muldrow (1988) 202 Cal.App.3d 636, 644 (Muldrow).)
In exercising its discretion to admit prior convictions for impeachment, the trial court should be guided by the four factors set out in Beagle: whether the prior conviction reflects on honesty and integrity; whether it is near or remote in time; whether it was incurred for the same or substantially similar conduct for which the witness-accused is on trial; and what effect admission would have on the defendant’s decision to testify. (Castro, supra, 38 Cal.3d at p. 307, citing Beagle, supra, 6 Cal.3d 441.) Here, Stitt does not contest that the first and last Beagle factors weigh in favor of admission, i.e. that the prior convictions were crimes of moral turpitude and the court’s ruling did not prevent him from testifying. He claims, however, that the convictions should have been excluded on account of their remoteness, numerousness and similarity. We discuss each factor separately.
On the issue of remoteness, Stitt argues the 1984, 1985 and 1992 convictions were very remote and, therefore, more prejudicial than probative since the current offenses occurred in July 2007. Stitt asserts the convictions had little bearing on whether he was likely to tell the truth at trial 24, 23 and 16 years later. With regard to remoteness, Beagle instructs that a conviction from “long before,” which “has been followed by a legally blameless life, should generally be excluded on the ground of remoteness.” (Beagle, supra, 6 Cal.3d at p. 453, internal quotation marks omitted.) The trial court thus is entitled to consider not only the length of time elapsed since the prior offense, but also the defendant’s subsequent conduct. (People v. Burns (1987) 189 Cal.App.3d 734, 738-739 (Burns).)
Appellate courts have concluded that 20-year-old convictions are not too remote to have probative value for impeachment purposes. (People v. Mendoza (2000) 78 Cal.App.4th 918, 925; Green, supra, 34 Cal.App.4th at p. 183; Burns, supra, 189 Cal.App.3d at pp. 737-738; People v. Massey (1987) 192 Cal.App.3d 819, 825.) Although the prior convictions at issue were 24, 23, and 16 years old at trial, Stitt did not lead a “‘legally blameless life’” after his convictions. (Beagle, supra, 6 Cal.3d at p. 453.) Since his 1984 convictions, he suffered subsequent convictions in 1985 and 1992 for offenses involving moral turpitude. He was sentenced to 17 years in prison on the 1992 convictions and violated parole in 2004. Although Stitt minimizes the convictions, asserting they were “low-grade property crimes” related to his drug addiction, and points out that since his 1992 convictions he married, had a child, and had held a job since 2004 or 2005 as an in-home health care worker, the trial court reasonably could conclude, as it did, that Stitt’s continuing criminality outweighed the length of time that had passed from the original date of conviction. The systematic occurrence of Stitt’s priors over a 24-year period created a pattern that was relevant to his credibility. (Green, at p. 183, citing Muldrow, supra, 202 Cal.App.3d at p. 648.) The trial court did not abuse its discretion in failing to exclude the priors on grounds of remoteness.
Stitt asserts that “many if not most courts have endorsed ten years as a presumptive cutoff date for prior convictions,” citing People v. Pitts (1990) 223 Cal.App.3d 1547, 1554 (Pitts). The court in Pitts held that the trial court exercised its discretion when determining whether a prior conviction was too remote by establishing a 10-year presumptive cutoff date for prior convictions. (Ibid.) It did not establish ten years as a presumptive cutoff date in all cases. Stitt also cites two federal cases and a case from Texas which state that convictions over 10 years old are presumptively inadmissible, but these cases were decided under either federal or Texas rules of evidence that contain such a presumptive cutoff. (Unites States v. Pope (11th Cir. 1998) 132 F.3d 684, 687; United States v. Sloman (6th Cir. 1990) 909 F.2d 176, 181; Sinegal v. State of Texas (Tex.App. 1990) 789 S.W.2d 383, 387.) California does not have a similar rule.
Stitt next argues the trial court erred in permitting evidence of the nature of the robbery convictions, particularly in light of the fact that those convictions were identical to the charged offenses. Stitt ignores, however, that the trial court initially ordered the convictions be referred to solely as theft-related felony offenses. It was only after Stitt spontaneously testified that he had five strikes and was afraid of “life” that the trial court, without objection from defense counsel, granted the prosecutor’s request to refer to the nature of the robbery convictions. Given that it was Stitt’s testimony that precipitated the change in the trial court’s ruling, to which defense counsel did not object, arguably Stitt cannot complain now that the trial court allowed the prosecutor to mention the nature of the crimes.
Nevertheless, the trial court did not abuse its discretion in refusing to sanitize the prior convictions after Stitt testified that he had five strikes and was afraid of “life.” Given Stitt’s admissions, the trial court reasonably could have determined the jury should know the nature of those crimes so as not to be misled into speculating what the five strikes were or to conclude the crimes were especially egregious, as well as to judge Stitt’s credibility. By learning of the specific nature of Stitt’s priors, the jurors were able to determine for themselves exactly how to factor them into an assessment of his credibility.
The fact that the prior convictions were identical to the crime charged does not automatically compel their exclusion. (People v. Stewart (1985) 171 Cal.App.3d 59, 66 (Stewart).) Courts have allowed as many as four identical convictions to impeach a defendant in a criminal trial. (Green, supra, 34 Cal.App.4th at p. 173 [four prior convictions for unlawful driving of a vehicle admitted in prosecution for unlawful driving of a vehicle]; Muldrow, supra, 202 Cal.App.3d at p. 647 [three prior convictions for burglary admitted in prosecution for burglary]; Stewart, supra, 171 Cal.App.3d at p. 63 [four prior convictions for robbery admitted in prosecution for robbery].) The trial court did not exceed the bounds of reason in admitting four prior convictions that were identical to the charged crime of robbery.
Finally, Stitt contends the trial court abused its discretion by allowing five prior convictions to be admitted for impeachment, asserting one conviction would have been sufficient to show the jury the nature of his prior record. But appellate courts have refused to impose arbitrary limits on the number of prior convictions admissible for impeachment. (People v. Castro (1986) 186 Cal.App.3d 1211, 1216 (Castro II); People v. Dillingham (1986) 186 Cal.App.3d 688, 695.) As many as 10 prior convictions have been held proper for impeachment in criminal trials. (Mendoza, supra, 78 Cal.App.4th at pp. 923, 927 [10 priors]; Green, supra, 34 Cal.App.4th at p. 173 [six priors]; Muldrow, supra, 202 Cal.App.3d at p. 646 [six priors]; Stewart, supra, 171 Cal.App.3d at p. 63 [four priors].) Stitt is simply wrong in asserting that five is “too many.” A series of crimes relevant to credibility is more probative than a single such offense. (Stewart, supra, 171 Cal.App.3d at p. 66.) Stitt had a history of convictions stretching from 1984 to 1992. Moreover, his convictions — for robbery and forgery — were all extremely relevant to truthfulness. (Beagle, supra, 6 Cal.3d at 453.)
In sum, it is not the number of convictions used, but the question of whether there was undue prejudice by the use of any number of convictions such that we can say the trial court abused its discretion. We cannot find an abuse of discretion on this record. The prior convictions were probative of credibility and used only for that limited purpose. It cannot be said reasonably that allowing the use of five prior convictions was more prejudicial than any other number. In any event, we are satisfied the trial court’s decision in this case, which was made after careful consideration, was not an abuse of the very broad discretion the trial court has in weighing the probative value of evidence against any potential for undue prejudice.
III. The Lost Section 969, Subdivision (b) Packet
At the bifurcated trial on the prior conviction allegations, the court first heard, outside the jury’s presence, the issue of identification. Joe Isquierdo, an identification technician with the Fresno Police Department Crime Scene Bureau, compared Stitt’s right thumbprint, which he obtained when he took inked fingerprints from all 10 of Stitt’s fingers, to the right thumbprint on two pages of Stitt’s section 969, subdivision (b) packet, and determined the prints matched. The fingerprint record Isquierdo obtained was entered into evidence as Exhibit 9, while the section 969, subdivision (b) packet, was entered into evidence as Exhibit 8. The trial court reviewed the section 969, subdivision (b) packet; the court noted the packet had the Department of Corrections’ seal on it with a signature dated August 2, 2007, and that the last page of the packet was a photograph which showed a picture of an individual dated April 5, 2005 bearing the name Stitt and a number “D12370.” The court compared the photograph to Stitt and stated it believed the photograph was of Stitt. The court then determined beyond a reasonable doubt that the section 969, subdivision (b) packet was Stitt’s.
The jury was then called in to determine the matters of the prior convictions and prior prison felonies. Emilio Valle, a probation services manager with the Fresno County Probation Department, testified that Exhibit 8 was Stitt’s certified section 969, subdivision (b) packet, which contained a chronological history and several abstracts of judgment pertaining to particular convictions. Valle found the following abstracts of judgment in the packet, which belonged to Stitt: (1) a November 8, 1983, section 211 robbery conviction out of Fresno County Superior Court case number 303672-0; (2) a November 8, 1983, section 211 robbery conviction out of Fresno County Superior Court case number 303672-0; (3) a July 3, 1985, section 211 conviction out of Kern County Superior Court case number 29743; (4) a November 20, 1992, section 211 conviction out of Fresno County Superior Court case number 470546-3; and (5) a November 20, 1992, section 459/460(a) conviction out of Fresno County Superior Court case number 470546-3.
Valle reviewed the chronological history in the packet and did not see any five-year period since August 5, 1985, the date he was received into custody on his July 3, 1985 section 211 conviction, that he had been free of custody, and that during that period, Stitt had picked up a section 459/460(a) felony conviction in Fresno County Superior Court case number 470546-3 on November 20, 1992. Valle also testified that based on the abstract of judgment for the section 459/460(a) conviction, the conviction looked to be for a first degree, or residential, burglary. Valle reviewed the report of the probation officer for the section 459/460(a) conviction, the first and last pages of which were entered into evidence as Exhibit 7a, and determined from the face sheet that the conviction was for first degree residential burglary.
The jury was instructed that it already had been determined that Stitt was named in the exhibits and the jury was to determine whether the evidence proves Stitt was convicted of the alleged crimes. The jury was further instructed that if it found Stitt had been convicted of a violation of section 211 on July 3, 1985 and of section 459/460 on November 20, 1992, the jury must also decide whether the People had proven Stitt served a separate prison term for the crimes and did not remain out of prison custody and free of a new felony conviction for five years. After deliberating, the jury found true allegations that Stitt had been convicted of the felony convictions Valle had testified to and that Stitt had been convicted of a felony violation of section 211 on July 3, 1985, and a felony violation of section 459/460 on November 20, 1992, and served a term in prison for each conviction within the meaning of section 667.5(b).
Based on the jury’s finding, the court found that the five prior convictions, four for robbery and one for residential burglary, were all strikes pursuant to the three strikes law, section 667, subdivisions (b) through (i) and 1170.12, subdivision (a), and also were serious felonies within the meaning of section 667, subdivision (a)(1).
Before the opening brief was filed on appeal, we granted appellant’s request to augment the record with, inter alia, People’s exhibits 7-A, 8 and 9, and directed the Fresno County Superior Court clerk to transmit the exhibits. In response, a deputy clerk declared to this court that the trial court had received the order to augment the record and, after two extensive searches of the case file, exhibit clerk’s office and exhibit room, the requested items could not be located.
Seizing upon this error, Stitt argues we must reverse the prior convictions findings because the actual exhibits are not available for us to review. He asserts that without the section 969, subdivision (b) packet, he lacks a complete record to secure “appellate review of possible issues relating to the prior convictions and the validity of the ‘true’ findings thereon.” He contends record settlement is not a viable option because without the actual trial exhibit, “there is nothing with which to compare a substitute exhibit for purposes of determining the accuracy and completeness of the substitute.” Citing People v. Serrato (1965) 238 Cal.App.2d 112 (Serrato), he argues his inability to affirmatively show error cannot be held against him because the exhibits were lost due to state action, and contends his federal rights to meaningful appellate review, due process and equal protection have been violated.
We disagree. Stitt is correct that a criminal defendant is entitled to a record on appeal that is “adequate to permit meaningful appellate review.” (People v. Seaton (2001) 26 Cal.4th 598, 699 (Seaton); People v. Harris (2008) 43 Cal.4th 1269, 1280 [state law entitled a defendant only to an appellate record adequate to permit him to argue the points raised on appeal; federal constitutional requirements are similar].) There is no rule of appellate procedure, however, that mandates reversal per se for lost trial exhibits; instead, “‘[t]he record on appeal is inadequate... only if the complained-of deficiency is prejudicial to the defendant’s ability to prosecute his appeal.’” (Seaton, supra, 26 Cal.4th at p. 699; People v. Coley (1997) 52 Cal.App.4th 964, 969 (Coley).)
Reconstruction of lost parts of the original trial record is an accepted mechanism that permits meaningful appellate review and avoids automatic reversal. (People v. Osband (1996)13 Cal.4th 622, 663 (Osband).) In Coley, supra, 52 Cal.App.4th 964, a defendant convicted of assault with a deadly weapon and found to have prior convictions contended he was entitled to reversal because the knife used in the assault and the documentation supporting the prior conviction allegations had been lost. The Court of Appeal rejected this contention, explaining: “Criminal defendants are entitled to due process, not perfect process. [Citation.] Thus, an imperfect representation of the exhibits is not grounds for reversal unless it is reasonably probable the outcome is affected by the deficiencies in the record.... [¶] While the defendant is entitled to a record adequate to afford a meaningful appeal, he bears the burden to show the deficiencies in the record are prejudicial. [Citation.] That burden is not carried by simply citing an administrative dereliction. Lost exhibits may be reconstructed in many instances. [Citation.] If they can be reconstructed, the appellate court can review them as if they had not been lost, with no resulting prejudice to the defendant. As models or replicas are admissible in the absence of an actual piece of evidence to assist the jury, reconstructed exhibits similarly assist the appellate court. [Citation.] Consequently, it would be a violation of the constitutional requirement that we not reverse a conviction absent prejudice if we were to reverse a conviction because the exhibits were lost when no attempt has been made to reconstruct them. [Citation.] The test is whether the exhibits can be reconstructed sufficiently to determine there was no prejudicial error at trial.” (Coley, supra, at pp. 969-970, citing Osband, supra, 13 Cal.4th 622.)
The court in Coley held that since an appellant has the burden to perfect the appeal and to show error and resulting prejudice, “the defendant must move for reconstruction of lost exhibits because, without at least an attempt at reconstruction and a settled statement concerning any exhibit that cannot be reconstructed, the defendant cannot show the loss of the exhibits resulted in prejudice to his right to a record adequate to afford meaningful appellate review.” (Coley, supra, 52 Cal.App.4th at p. 972.) The court concluded that because the defendant made no effort to obtain reconstruction of the lost exhibits, his contentions concerning sufficiency of the evidence were not properly raised. (Id. at p. 973.)
The reasoning in Coley applies here. Stitt failed to move for reconstruction of the section 969, subdivision (b) packet. Although he asserts it cannot be reliably reconstructed, this cannot be determined until reconstruction is at least attempted. Since there is nothing before us to show that the packet cannot be reconstructed, Stitt’s reliance on Serrato is misplaced. There, no reporter’s transcript was filed as a result of court officials’ mistakes, and the transcript could not be reconstructed because the reporters’ notes had been destroyed, the judge who tried the case had died, the district attorney was no longer in office, and the official court reporter was no longer available. (Serrato, supra, 238 Cal.App.2d at pp. 114-115.) The appellate court ordered the convictions reversed because the state was responsible for the inability to provide a transcript and there was a complete failure to furnish the documents necessary to permit the defendant to urge a reversal of the judgment. (Id. at pp. 118-119.) In contrast here, no attempt has been made, because Stitt did not request reconstruction, to determine whether the packet can be reconstructed. Without such a request, Stitt is not entitled to reversal of the findings on the prior conviction allegations.
Moreover, Stitt does not show what error could possibly be revealed if we had the section 969, subdivision (b) packet. Stitt’s consecutive 25-to-life terms were based on his having been sentenced as a three-striker under the three strikes law due to his prior convictions, all of which he admitted at trial were his. Of the five convictions the jury found Stitt had suffered, four were for robbery, which unambiguously constitutes a violent felony, and therefore a strike, within the meaning of the three strikes law. (§§ 667, subds. (b), (d), 667.5, subd. (c)(9) [listing “[a]ny robbery” as a “‘violent felony’”].) Stitt also was sentenced to a determine 15-year-term under section 667, subdivision (a), which provides increased punishments for prior convictions for serious felonies defined in section 1192.7, subdivision (c), that includes “robbery or bank robbery.” (§§ 667, subd. (a), 1192.7, subd. (c)(19).) Although the jury also found true allegations that Stitt had suffered prior prison terms within the meaning of section 667.5, the court did not impose any additional sentence pursuant to these findings. Under the circumstances, there is no chance that, once the exhibit is reconstructed, this court will conclude either that the trial court or jury erred in finding the prior conviction allegations true or that prejudice resulted from any error.
IV. The Romero Motion and Cruel and Unusual Punishment
Stitt argues that the trial court’s ruling declining to strike his strike priors was an abuse of discretion and an imposition of constitutionally disproportionate punishment. We disagree.
The standard of review of the abuse of discretion aspect of the trial court’s ruling is deferential. (People v. Carmony (2004) 33 Cal.4th 367, 371 (Carmony); Romero, supra, 13 Cal.4th 497; Pen. Code, § 1385.) Two fundamental precepts guide our review. First, the party challenging the sentence has the burden of clearly showing the sentencing decision was irrational or arbitrary. (Carmony, at p. 376.) In the absence of the requisite showing, we will presume the court acted to achieve legitimate sentencing objectives and will allow the sentencing decision to stand. (Id. at pp. 376-377.) Second, we have no authority to substitute our judgment for that of the trial court, so we cannot reverse a sentencing decision merely because reasonable people might disagree. (Id. at p. 377.) “Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.” (Ibid.)
Since all discretionary authority is contextual, we look to the legal principles and policies germane to the trial court’s ruling. (Carmony, supra, 33 Cal.4th at p. 377.) The intent of the three strikes law was to restrict the discretion of the trial courts in sentencing repeat offenders. (Ibid.) The three strikes law does not offer a discretionary sentencing choice, as do other sentencing laws, but instead establishes a sentencing norm, carefully circumscribes the power of the trial courts to depart from the norm, requires an explicit justification of any ruling that departs from the norm, and creates a strong presumption that any sentence conforming to the norm is rational and proper. (Id. at pp. 377- 378.)
Before the sentencing hearing, Stitt filed a motion requesting the exercise of the trial court’s discretion to strike or dismiss his strike priors within the scope of the three strikes law. His motion acknowledged his five strike priors and five prior serious felonies that were found true. He argued his case was an appropriate one for relief because: (1) his prior strike offenses were remote, as they occurred 16 to 25 years ago; (2) his “criminal history ha[d] been prompted by a number of factors over which he had no control[,]” and he was “motivated by emotions and addiction which he ha[d] begun to understand”; (3) his prior offenses were committed when he was much younger and “were ‘out of character’ for him at the time”; (4) he had never been given a chance to “work on his drug and emotional issues”; (5) he did not have a criminal record prior to his mother’s death; (6) while he used fear to commit serious and violent felonies, he had not inflicted serious injuries on any of his victims; (7) with completion of a drug treatment program he “would once again be a productive member of society”; (8) he had community support as shown by letters attached to the motion; (9) the interests of justice would be satisfied because he was still facing significant punishment even without the prior convictions; and (10) imposing a sentence without striking his prior convictions would lead to cruel and unusual punishment.
At the sentencing hearing, Stitt made a statement to the court, in which he noted “the first time I ever got in trouble, I turned myself in” and “I got two strikes now for that,” and then “I continued down the same path using drugs,” and “the same thing happened in ’85.” Stitt admitted that in 1992 “I went to my ex-girlfriend’s. My tools weren’t there, I took the TV. I got 17 years and two strikes for that. I got five strikes. That’s the extent of my criminal history.” Stitt admitted having a drug problem, that he began using again after almost 13 years of not doing drugs, and urged the court to take a chance on him because “there’s a chance that I can find out what my problem is exactly, and there is a chance that I can be helped with it.”
The trial court stated that when it looked at Stitt’s entire record, including the violations of probation, his time in custody, and violations of parole upon his release, it could not in good conscience find he had gone through any substantial period where there had not been criminality involved. The trial court reviewed some of the points raised in Stitt’s brief, stating it: (1) questioned whether there were factors over which Stitt had no control; (2) had no evidence that Stitt’s crimes were out of character; (3) rejected the contention Stitt had never been afforded an opportunity to work through his drug and emotional issues; and (4) agreed there was no criminality before Stitt’s mother’s death in 1982. An exchange ensued between the trial court and Stitt, at the conclusion of which the trial court stated that while it could strike all five strikes and stay the prison priors, it should not, “as a trial court judge, even with the most minimal adherence to stare decisis or the established law,” do so.
The prosecutor argued Stitt was “a textbook case for why the Three Strikes Law should be in effect,” since his criminal record consists of the same type of offenses on which Stitt was being sentenced, his crimes began in the 1980s and continued to the present, his crimes were serious since they involved weapons and guns, and although Stitt had been given numerous chances, he continued committing crimes. With respect to Stitt’s contention the crimes were drug-related and he had been clean for 13 years, the prosecutor asserted the only 13-year period of time that did not involve new offenses is when Stitt was in prison; there was no 13-year period since 1982 when Stitt was out of prison and clean, which suggested he could only maintain sober living in prison.
Noting that Stitt had opportunities to be a productive member of society outside of custodial status, the trial court denied Stitt’s invitation to strike the prior strike offenses for the reasons previously stated. The court, however, stayed one section 667, subdivision (a) enhancement based on the understanding that the two section 211 counts in 1983 were consolidated and tried as one case.
On appeal, Stitt reiterates most of the arguments he made to the trial court, i.e. that his prior convictions are remote, his crimes are drug-related and not serious, and although he could not get help for his drug problem, he remained drug-free for 13 years. The trial court, however, rejected each of these contentions and found Stitt’s ongoing pattern of criminality confirms he still represents a danger to society. Since he fails to discharge his burden on appeal of clearly showing the sentencing decision was irrational or arbitrary, we will presume the court acted to achieve legitimate sentencing objectives and will allow the sentencing decision to stand.
Consequently, we turn to his argument that his sentence is constitutionally disproportionate. In determining whether punishment is constitutionally disproportionate, the courts examine the nature of the offense and offender, the punishment the same jurisdiction imposes for other offenses, and the punishment other jurisdictions impose for the same offense. (Solem v. Helm (1983) 463 U.S. 277, 290-291, overruled on another ground by Harmelin v. Michigan (1991) 501 U.S. 957, 964-965; In re Lynch (1972) 8 Cal.3d 410, 425-427.) A punishment involving “unnecessary and wanton infliction of pain” or “grossly out of proportion to the severity of the crime” violates the Eighth Amendment. (Gregg v. Georgia (1976) 428 U.S. 153, 173.) A punishment “so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity” violates article I, section 17 of the California Constitution. (In re Lynch, supra, 8 Cal.3d at p. 424, fn. omitted.)
California statutes imposing harsher punishment on recidivists have long withstood constitutional challenge. (See People v. Weaver (1984) 161 Cal.App.3d 119, 125-126, and cases cited.) Stitt argues “the ‘robbery’ in the present case was a nonviolent theft[,]” that was technically a felony robbery by operation of law which permitted “a simple theft to be characterized as a robbery if a threat of force is employed to effect an escape with the fruits of the theft after the fact of the theft.” He also asserts the triggering offense is “relatively minor” and if there was a pattern, it was broken by his 13-year abstinence from drugs. Not so. The primary goals of a recidivist statute “are to deter repeat offenders and, at some point in the life of one who repeatedly commits criminal offenses serious enough to be punished as felonies, to segregate that person from the rest of society for an extended period of time.” (Rummel v. Estelle (1980) 445 U.S. 263, 284-285.) Defining that point in one’s life and setting that time are both “matters largely within the discretion of the punishing jurisdiction.” (Id. at p. 285.) Stitt’s sentence constitutes neither cruel and unusual punishment under the federal Constitution nor cruel or unusual punishment under the state Constitution. (U.S. Const., 8th Amend.; Cal. Const., art. I, § 17; see Ewing v. California (2003) 538 U.S. 11, 20-31; Lockyer v. Andrade (2003) 538 U.S. 63, 66-77; People v. Martinez (1999) 71 Cal.App.4th 1502, 1516-1517.)
V. The Receiving Stolen Property Conviction
Stitt contends, and respondent concedes, that he was improperly convicted of both count I, robbery of Rudolfo Sanchez, and count III, receiving Rudolfo Sanchez’s stolen property. We agree, and accordingly will reverse the count 3 conviction. (People v. Allen (1999) 21 Cal.4th 846, 866-867.) As the court stayed the term imposed for count 3, there is no net effect to Stitt’s aggregate term.
DISPOSITION
Appellant’s conviction in count 3 for receiving stolen property is reversed. On remand, the trial court is directed to prepare an amended abstract of judgment reflecting this fact and to forward it to the proper authorities. In all other respects, the judgment is affirmed.
WE CONCUR: Vartabedian, Acting P.J., Cornell, J.