Opinion
C081972
01-28-2020
THE PEOPLE, Plaintiff and Respondent, v. CHRISTOPHER DEXTER WILMER, JR., Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 14F04098)
Defendant Christopher Dexter Wilmer, Jr., was convicted by jury of second degree robbery (Pen. Code, § 211), witness intimidation (§ 136.1, subd. (c)), and possession of narcotics paraphernalia (Health & Saf. Code, § 11364.1). The robbery took place following a traffic collision, in which the victim rear-ended a car being driven by M. while defendant was seated in the passenger seat of M.'s car. Among other things, defendant took money from the victim's wallet in his immediate presence by means of fear. The unsuccessful witness intimidation occurred after the victim's mother arrived at the scene of the accident/robbery and expressed a desire to call the police. The narcotics paraphernalia was found in defendant's possession after his arrest.
Undesignated statutory references are to the Penal Code.
In a bifurcated proceeding, defendant admitted having two prior serious felony convictions (§ 667, subd. (a)) qualifying as strikes under the three strikes law (§§ 667, subds. (b)-(i), 1170.12). After an unsuccessful motion to strike these strike convictions under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero), the trial court sentenced defendant to serve an aggregate indeterminate term of 50 years to life consecutive to an aggregate determinate term of 20 years in state prison.
On appeal, defendant contends: (1) his trial counsel rendered constitutionally deficient assistance by failing to object to the admission of the following out-of-court statement defendant made to one of the responding police officers, "if I had an Uzi, I would have already used it on you"; (2) the trial court prejudicially erred and violated defendant's federal constitutional rights by excluding certain defense evidence, i.e., (a) the other responding officer called defendant and M. "shitheads" and "thugs" while speaking to the victim's mother at the accident site, and (b) several weeks before the accident, the victim was arrested for driving under the influence of marijuana; and (3) the cumulative prejudice flowing from the foregoing assertions of error requires reversal. Defendant also (4) asks us to review the trial court's determination, after conducting an in camera review of the responding officers' personnel files under Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess), that these files contain no additional discoverable material. Finally, defendant asserts: (5) the three strikes sentence imposed by the trial court amounts to cruel and/or unusual punishment in violation of the California and federal Constitutions; and (6) we must remand the matter for a new sentencing hearing because Senate Bill 1393 (2017 - 2018 Reg. Sess.) (Stats. 2018, ch. 1013, §§ 1 & 2 (SB 1393)) that became effective January 1, 2019 and gives the trial court discretion to strike five-year prior serious felony enhancements in the interest of justice, applies retroactively to cases not yet final on appeal.
Defendant's claim of ineffective assistance of counsel fails because he has not demonstrated prejudice. With respect to his assertions of evidentiary error, we conclude the officer's derogatory comments were improperly but harmlessly excluded. The latter claim regarding the DUI arrest is forfeited. We further reject defendant's assertion the cumulative prejudicial effect of the foregoing assertions of error requires reversal. With respect to defendant's assertion of Pitchess error, we conclude the record is ambiguous as to whether or not the trial court reviewed all personnel files produced by the custodian of records, or instead relied on a summary of those records apparently produced at the same time. In an attempt to clear up that ambiguity, we directed the trial court to conduct a hearing to confirm the materials it reviewed during the original Pitchess hearing and then augment the appellate record with those materials. As we explain, this procedure produced neither the requested personnel files, which were destroyed in the interim, nor clarification as to whether or not the trial court reviewed each file during the original hearing. Nevertheless, the record is sufficient to conclude any Pitchess violation was harmless and no grounds for reversal. Turning to defendant's claims of sentencing error, we conclude his sentence is neither grossly disproportionate to the crimes in light of his prior criminal history, nor does it shock the conscience of this court. Finally, however, defendant's claim regarding the retroactive application of SB 1393 has merit and requires remand for a new sentencing hearing.
FACTS
The victim was driving home after a family dinner celebrating his birthday when he rear-ended a car being driven by M. Defendant was in the passenger seat of M.'s car and M.'s infant child was in a car seat in the back. The accident occurred on Highway 99, adjacent to the Valley Hi/North Laguna neighborhood of Sacramento.
After both cars pulled over to the side of the highway, the victim got out of his car to assess the damage. When M. and defendant got out of the other car, defendant seemed upset and approached the victim asking for proof the car he was driving belonged to him. The victim returned to his car to retrieve his registration. Defendant followed and got into the victim's front passenger seat. As the victim retrieved his registration and proof of insurance, defendant asked if he had any "drugs or weapons in the car" while "rapidly looking around the car" and seeming to be "[a]ngry and anxious." This made the victim "a little scared." He became more afraid when defendant said: "I don't know if I want to knock you out or bust you up." The victim explained: "I just didn't know what he meant by it, if he was just going to assault me right there, or if I can calm him down." The victim tried to achieve the latter result by saying: "I have insurance, we can settle this." He also told defendant he wanted to call his mother to let her know he was in an accident. Defendant grabbed the victim's cell phone, which was on his center console, and moved it to the passenger side of the dash board, saying: "We'll get to that later. Mom[s] complicate matters."
Around this time, defendant grabbed the victim's wallet, also on the center console, took $100 in cash from the wallet, and asked how much money was on his ATM and credit cards. While the victim did not want defendant to take his money and did not give him permission to do so, he also did not try to stop defendant. As he explained: "I was pretty nervous so I just kept going along with it just trying to figure a way where I could either call the police or just not have him get mad at me." When defendant questioned the victim about the cards in his wallet, the victim said he had money on his ATM card. Defendant said they would have to go to the bank to take out the money. He then said he needed to talk to M. and returned to the other car.
Defendant was gone for several minutes. He left the victim's cell phone on the dash board, but the victim did not use it to try to call anyone because he was worried about a "violent reaction" if defendant saw him making a call. When defendant returned to the victim's passenger seat, he said they needed to get gas for the other car. The victim was "kind of confused" by this, but "was willing to do it" in order to "keep him calm." At defendant's direction, the victim drove to a nearby gas station. On the way, defendant told the victim to withdraw money from the ATM at the gas station. The victim did not remember the exact amount defendant told him to withdraw, but remembered it was more than $200 because he said in response that he could not afford more than $200. Defendant then said he would accept $200 plus the gas they were going to get for the other car. The victim testified he did not believe he could say no because defendant told him on the way to the gas station that he "done messed up" and would "have to pay for it one way or another." Defendant also pulled out a "blunt," i.e., a cigar wrapper filled with marijuana, during the short drive and told the victim to smoke some of it because he looked nervous. The victim did so.
At the gas station, the victim grabbed his cell phone as they got out of the car. The plan was to get $200 out of the ATM, buy a gas can, and then fill up the gas can to bring back to the car M. was driving. The victim went to the ATM at the back of the store while defendant stayed closer to the front. While inside the store, the victim used his cell phone to call his mother, told her he was in an accident and to meet him at the gas station, and quickly hung up the phone. He then completed the ATM transaction and tried to hand defendant the money. Defendant told him to do that back at the car so his image would not be captured on the ATM surveillance camera taking the money. Defendant also told the victim to pull out another $100 for himself. The victim did so in a second ATM transaction. After learning this particular gas station did not sell gas cans, defendant picked out about $20 worth of items for himself. The victim bought the items with his ATM card and the two returned to the car. In the car, the victim told defendant he talked to his mother on the phone while they were inside the store and he needed to call her back. In the meantime, she had been calling his cell phone, but he was not answering. Defendant became "a little upset" and told the victim to give him the $200, adding he would be "out of it" at that point. The victim handed defendant the money. The two then waited for the victim's mother to arrive.
The victim's mother arrived at the gas station with her brother and his girlfriend. The victim appeared nervous when they arrived. He told them about the accident, but not about defendant taking his money. Everyone then drove to the scene of the accident. When they got there, M.'s wife was picking up the child who had been in the back of the car M. was driving. The victim then spoke to M. for the first time while defendant told the victim's family "his situation was dealt with because [the victim] gave him the money." This was the first time the victim's mother learned about the robbery. As she described defendant's statement, he said, " 'he had been taken care of and . . . him and [the victim] were cool, not to worry, he wasn't even in the accident, and when the police got there, he had nothing to do with [it].' "
Three calls were made to the police by the victim's uncle's girlfriend. The first requested their presence at the accident site. About 10 minutes later, she called back and said their presence would not be needed. The third, about 15 minutes later, again requested their presence. It is unclear precisely when in relation to these calls defendant made the foregoing statement to the victim's mother, but it was apparently made after the first call and before the third. Around the time the third call was made, defendant threatened the victim's mother by saying he "was a member of the Bloods" who "had done 19 years in prison," he "was not going back," and "he had Bloods up and down the freeway that wouldn't be happy to see him go back to jail," adding, "we know where Galt is." The victim and his family lived in Galt. This threat scared the victim's mother enough to cause her to return to her car with her brother and his girlfriend and lock the doors until police arrived.
Officers Bradley Ryder and Robert Smeja of the California Highway Patrol arrived at the scene shortly after the third call. Officer Smeja talked to the victim and his family while Officer Ryder talked to M. and defendant. Defendant told Ryder he was not in M.'s car at the time of the collision and asked if he could leave. Ryder said he could not leave until the investigation was completed. It was apparently at this point that Smeja, who was speaking to the victim's mother, noticed defendant walking backwards away from M.'s car and towards the nearest highway onramp. Smeja interrupted his conversation with the victim's mother and approached defendant, asking if he was in the car during the accident. Defendant said he was not and "leaned in and locked eyes" with the officer, "taking a very aggressive posture." Smeja viewed this as an effort to intimidate him, so the officer "postured up too" and sternly asked the question again. Defendant admitted he was in the car. Smeja then asked defendant if he took money from the victim. Defendant denied doing so.
At this point, Officer Ryder resumed talking to defendant while Officer Smeja returned to the victim and his family. Ryder described defendant's demeanor as "agitated" and "somewhat aggressive" while they spoke. Similar to Smeja, Ryder described defendant's posture as "somewhat of a fighting stance," adding that he "stepp[ed] up aggressively" into the officer's "personal zone," i.e., within two feet of the officer. Defendant also rotated around the officer while they spoke, positioning himself on the higher side of the highway's grade. This indicated to Ryder defendant was attempting to "give himself a tactical advantage if there were to be some sort of a physical altercation." When defendant, who was wearing a hooded sweatshirt and backpack, repeatedly and quickly put his hands into and out of the sweatshirt's front pocket, Ryder told him to keep his hands out of the pocket and to put the backpack in the car. In an attempt to ease the tension he was feeling from his interaction with defendant, Ryder joked: "I just don't know if you have any sort of weapon like an Uzi." Defendant responded: "Bro, if I had an Uzi, I would have already used it on you." At that, Ryder told defendant to turn around and secured him in handcuffs for purposes of officer safety.
Both defendant and M. were arrested at the conclusion of the officers' roadside investigation, defendant for robbery and M. because of an unrelated outstanding warrant. One of the $20 bills defendant took from the victim's wallet was found on defendant during a search of his clothing. This $20 bill was already torn in half when defendant took it from the victim's wallet. Defendant admitted taking the bill, but said he did so "because it was defaced money and it was a crime for [the victim] to have the defaced money." Defendant denied taking any additional money. Specifically referring to the money the victim withdrew from the ATM, defendant repeatedly said the victim "must still have his money" because the officers did not find it on him during their search. This money was found in one of defendant's socks when he was more thoroughly searched while being booked into the jail. A glass pipe used to smoke methamphetamine was also found in defendant's pants pocket at the CHP station prior to his being taken to jail.
Based on the foregoing, defendant was convicted by jury of second degree robbery (the money taken from the wallet), witness intimidation (the threat to the victim's mother), and possession of narcotics paraphernalia (the methamphetamine pipe). The jury acquitted him of a second count of robbery and lesser-included offenses of grand and petty theft (based on the ATM transaction), witness intimidation (with the named victim as the alleged victim), removing a wireless communication device with the intent to prevent use of the device to call law enforcement (moving the victim's cell phone to the dash board), and both felony and misdemeanor false imprisonment (restraining the victim in his car and compelling him to go to the gas station).
DISCUSSION
I
Ineffective Assistance of Counsel
Defendant contends his trial counsel rendered constitutionally deficient assistance by failing to object to the admission of the following statement defendant made to Officer Ryder: "Bro, if I had an Uzi, I would have already used it on you." We disagree.
A criminal defendant has the right to the assistance of counsel under both the Sixth Amendment to the United States Constitution and article I, section 15, of the California Constitution. (People v. Ledesma (1987) 43 Cal.3d 171, 215.) This right "entitles the defendant not to some bare assistance but rather to effective assistance. [Citations.] Specifically, it entitles him to 'the reasonably competent assistance of an attorney acting as his diligent conscientious advocate.' [Citations.]" (Ibid.) The burden of proving a claim of ineffective assistance of counsel is squarely upon the defendant. (People v. Camden (1976) 16 Cal.3d 808, 816.) " 'In order to demonstrate ineffective assistance of counsel, a defendant must first show counsel's performance was "deficient" because his [or her] "representation fell below an objective standard of reasonableness . . . under prevailing professional norms." [Citations.] Second, he [or she] must also show prejudice flowing from counsel's performance or lack thereof. [Citation.] Prejudice is shown when there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." ' " (In re Harris (1993) 5 Cal.4th 813, 832-833; Strickland v. Washington (1984) 466 U.S. 668, 687 [80 L.Ed.2d 674, 693].)
We begin with the first element of this claim, deficient performance. "Generally, failure to object is a matter of trial tactics as to which we will not exercise judicial hindsight. [Citation.] 'When a defendant makes an ineffectiveness claim on appeal, the appellate court must look to see if the record contains any explanation for the challenged aspects of representation. If the record sheds no light on why counsel acted or failed to act in the manner challenged, "unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation" [citation], the contention must be rejected.' [Citation.] A reviewing court will not second-guess trial counsel's reasonable tactical decisions. [Citation.]" (People v. Kelly (1992) 1 Cal.4th 495, 520.)
Here, the record does not reveal why defense counsel, Williams, did not object to the admission of defendant's statement to Officer Ryder about the nonexistent Uzi. Nor was he asked for an explanation and not provide one. Thus, we must reject the claim on the basis of this first element unless there is no possible satisfactory explanation. In this regard, we note Williams was not defendant's original attorney in this matter. That attorney, Paula Spano, successfully moved to exclude the statement as irrelevant and unduly prejudicial. After Spano declared a conflict based on threats received from defendant, she was relieved as his attorney and Williams eventually took her place. New in limine motions were thereafter filed and Williams did not renew the motion to have the Uzi statement excluded. Nor did he object when that statement was introduced into evidence during Officer Ryder's testimony. Instead, he asked Ryder during cross-examination whether he believed defendant was joking when he made the statement. And while the officer answered he did not believe defendant was joking based on his tone and demeanor, defense counsel argued this view of the statement to the jury during his closing argument.
The Attorney General posits Williams could have made a rational tactical decision to argue to the jury the Uzi statement was a joke and further points out the trial court might not have excluded the statement the second time around because it was "relevant to show that [defendant's] aggressive behavior toward Officer Ryder was consistent with the aggressive behavior described by [the victim]." While we agree the Uzi statement was relevant and arguably admissible for this purpose, we cannot accept the argument that counsel made a rational tactical decision not to renew a motion to exclude damaging evidence already excluded by the trial court, whether or not that initial determination was correct. As the Attorney General acknowledges, counsel's decision to argue the statement was a joke was certainly "less effective than excluding the statement entirely."
Nevertheless, defendant's ineffectiveness claim fails on the second element for lack of prejudice. We first note defendant was acquitted of most of the charges. Thus, we need only determine whether it is reasonably probable he would have received a more favorable result with respect to the first robbery count (taking money from the victim's wallet), the second witness intimidation count (the threat to the victim's mother), and the possession of narcotics paraphernalia count. Beginning with the latter count, the Uzi statement had no bearing on whether or not a methamphetamine pipe was found in defendant's possession after he was arrested. Indeed, defendant's guilt of this crime was conceded at trial. Thus, there can be no prejudice with respect to this count.
Turning to the robbery count, evidence of defendant's guilt was strong. The victim testified defendant aggressively approached him following the accident, asked for proof the victim's car belonged to him, and then got into the passenger seat without invitation when the victim got into the driver's seat to retrieve his registration and proof of insurance. Defendant, seeming angry and anxious, started rapidly looking around while asking if the victim had drugs or weapons in the car. Defendant then said: "I don't know if I want to knock you out or bust you up." The victim was understandably afraid. He told defendant he wanted to call his mother to let her know he was in an accident, but defendant prevented this by moving his cell phone out of his reach. Defendant then took $100 out of the victim's wallet. The wallet was in his immediate presence. And based on the victim's account of the events leading up to the taking, the jury could easily have concluded the taking was accomplished by fear. The victim's testimony in this regard was corroborated by the fact defendant had one of the $20 bills on him when searched by Officer Ryder at the scene of the accident, despite his having denied taking any money from the victim when asked by Officer Smeja. Then, after that torn $20 bill was found, defendant offered the preposterous explanation that he took the money from the victim "because it was defaced money and it was a crime for [the victim] to have the defaced money." Defendant also lied to the officers about taking any additional money from the victim, which became apparent when the money the victim gave him following the ATM transaction was found in his sock at the jail. As the jury was instructed, defendant's false statements related to the charged crimes and his attempt to hide the money could be considered evidence of consciousness of guilt.
The evidence was also strong with respect to the witness intimidation charge. The victim's mother, her brother, and his girlfriend each heard the threat defendant made regarding their calling the police. While their versions of defendant's actual words differed, the differences are largely immaterial. The victim's mother testified defendant said he "had done 19 years in prison and was not going back," and if his "homies find out" he got arrested or went back to prison, "they know where Galt is." As mentioned, the victim and his family lived in Galt. The victim's uncle testified to hearing defendant say he "was a member of the Bloods gang and he had -- he had Bloods up and down the freeway that wouldn't be happy to see him go back to jail." The uncle's girlfriend, who was the one calling for police assistance, testified she heard defendant say, "if the police were called that there would be people up and down the freeway, Bloods up and down the freeway, that would be happy if he went back to prison." It is entirely possible "would" in the latter quote from the record is a typographical error. But even assuming it is not an error, viewing the testimony from the three witnesses together, a reasonable jury could have concluded the uncle's girlfriend misheard "wouldn't" as "would." It makes no sense for defendant, while "agitated" and "upset" about her making the call to police, to have informed them that his gang member friends would be happy about him going to prison. The jury could easily have concluded these statements were designed to dissuade the victim's mother from reporting the robbery of her son to police when they arrived on the scene. The jury could also have concluded the attempted dissuasion was accompanied by an implied threat of violence, i.e., his gang member friends "know where Galt is."
Defendant's aggressive conduct toward the responding officers provides further evidence corroborating the victim's account of the robbery and the other witnesses' accounts of the witness intimidation. And while the challenged Uzi statement is part of this evidence, it was by no means the centerpiece. Indeed, while it certainly would have been better to exclude the statement entirely, defense counsel managed to portray the exchange between defendant and Officer Ryder as two men exchanging flippant remarks. More damaging was the officers' testimony about defendant's aggressive posturing while they spoke to him on the side of the highway.
We conclude defendant has not carried his burden of demonstrating a probability of a more favorable result in the absence of the claimed deficient performance.
II
Exclusion of Defense Evidence
Defendant also claims the trial court prejudicially erred and violated his federal constitutional rights by excluding the following defense evidence: (a) Officer Smeja called defendant and M. "shitheads" and "thugs" while speaking to the victim's mother at the accident site; and (b) several weeks before the accident, the victim was arrested for driving under the influence of marijuana. The latter claim is forfeited. With respect to the former, we conclude Officer Smeja's comments were improperly but harmlessly excluded. We begin with that claim.
A.
Comments Made by Officer Smeja
At the scene of the accident, after briefly speaking with the victim's mother, Officer Smeja was captured on the patrol car's video recording system referring to defendant and M. as "shitheads." He was also recorded telling the victim's mother: "Unfortunately, thugs get to have kids too." This statement was made in response to the victim's mother expressing concern there was a baby in the car M. was driving during the accident. The defense sought to have these statements admitted into evidence to establish racial bias on the part of Officer Smeja. Defense counsel argued the officer automatically believed the victim's mother's account of events because they were both White, and conversely "jump[ed] to the conclusion" defendant and M. were "shitheads" and "thugs" because they were Black. The defense also sought to call an expert on "racial profiling." The trial court excluded these statements and the expert testimony. Defendant challenges only the exclusion of the officer's statements in this appeal. The trial court concluded the statements were irrelevant and, even if relevant, inadmissible under Evidence Code section 352 as "time consuming and potentially confusing."
"No evidence is admissible except relevant evidence" (Evid. Code, § 350), and "[e]xcept as otherwise provided by statute, all relevant evidence is admissible." (Id., § 351.) Evidence is relevant if it has "any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action," including "evidence relevant to the credibility of a witness." (Id., § 210.) However, "[t]he court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (Id., § 352.) This provision "permits the trial judge to strike a careful balance between the probative value of the evidence and the danger of prejudice, confusion and undue time consumption," but also "requires that the danger of these evils substantially outweigh the probative value of the evidence." (People v. Lavergne (1971) 4 Cal.3d 735, 744; People v. Tran (2011) 51 Cal.4th 1040, 1047.)
Here, Officer Smeja's statements calling defendant and M. derogatory terms after speaking briefly with the victim's mother does tend in reason to show a bias on his part against defendant and M. and in favor of believing the victim's mother's account of events. The possible existence of such a bias is relevant to the jury's assessment of his credibility as a witness. (Evid. Code, § 780, subd. (f).) "Proof of a witness' bias or prejudice against the specific individual who is a party in the litigation is clearly admissible." (In re Anthony P. (1985) 167 Cal.App.3d 502, 508, italics added.) Also admissible is evidence of general bias on the part of a prosecution witness against a racial group to which the defendant belongs. (Id. at pp. 511-512.) Such evidence "may be established through cross-examination as well as extrinsic evidence." (Id. at p. 510.) Because Officer Smeja's statements were directed towards defendant specifically (as well as M.), we need not determine whether they also revealed a general bias against African Americans. Admission of the officer's statements, either through cross-examination or by admission of the in-car camera video if the officer denied making the statements, would not have been unduly prejudicial. Nor would the probative value of the evidence have been substantially outweighed by any of the other statutory counterweights contained in Evidence Code section 352. While the trial court determined admission of this evidence would potentially confuse the jury and consume an undue amount of time, we conclude this determination was an abuse of discretion. It would not have taken much time for defense counsel to ask the officer whether he made the statements and if so, what he meant by them. Even if the officer denied making the statements, playing the relevant portions of the video would not have taken a substantial amount of time either. And far from creating confusion for the jury, this evidence would have provided it with evidence relevant to the credibility of one of the prosecution's witnesses.
Exclusion of this evidence also amounted to a violation of defendant's Sixth Amendment right of confrontation. " '[A] criminal defendant states a violation of the Confrontation Clause by showing that he [or she] was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness, and thereby, "to expose to the jury the facts from which jurors . . . could appropriately draw inferences relating to the reliability of the witness." ' [Citation.]" (People v. Frye (1998) 18 Cal.4th 894, 946, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) The question is whether "[a] reasonable jury might have received a significantly different impression of [the witness's] credibility had [defense counsel] been permitted to pursue his proposed line of cross-examination." (Delaware v. Van Arsdall (1986) 475 U.S. 673, 680 .) Here, the jury may well have had a significantly different impression of Officer Smeja's credibility had it learned the officer referred to defendant and M. as "shitheads" and "thugs" when speaking to the victim's mother at the accident scene.
However, the constitutional violation was manifestly harmless. "[T]he constitutionally improper denial of a defendant's opportunity to impeach a witness for bias, like other Confrontation Clause errors, is subject to Chapman harmless-error analysis. The correct inquiry is whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt. Whether such an error is harmless in a particular case depends upon a host of factors, all readily accessible to reviewing courts. These factors include the importance of the witness' testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution's case." (Delaware v. Van Arsdall, supra, 475 U.S. at p. 684.) Officer Smeja's testimony was not particularly important to the prosecution's case against defendant. Far more important was the testimony provided by the victim and his family. While Officer Smeja testified to his observations of defendant after his arrival at the scene of the accident and to certain untrue statements defendant made at that time, this testimony was largely cumulative of and corroborated by Officer Ryder's testimony. Finally, as we have more fully explained in connection with our analysis of defendant's claim of ineffective assistance of counsel, the case against defendant with respect to the robbery and witness intimidation counts was very strong.
Chapman v. California (1967) 386 U.S. 18 .
We conclude the erroneous exclusion of Officer Smeja's statements was harmless beyond a reasonable doubt.
Because the confrontation violation triggers the same heightened standard for assessing prejudice we would be required to employ were we to find a due process violation, we decline to address defendant's separate assertion that such a violation occurred.
B.
The Victim's Prior Arrest for Driving under the Influence
Two to three months before the accident, the victim was arrested for driving under the influence of marijuana. The defense sought to admit evidence of this arrest for purposes of establishing the victim was the one "who offered to handle this without involving insurance," but after settling the dispute with defendant, lied about defendant robbing him. After stating the defense's argument had "some traction," the trial court asked for the prosecution's response. The prosecutor stated there were no consequences from that arrest, "no charge," "no license suspension," "nothing at all." And while the victim smoked marijuana the night of the accident, that happened after the accident and "[t]here was no indication [the victim] was under the influence" when the accident occurred. Thus, argued the prosecutor, the prior DUI arrest had "nothing at all to do with this case." The trial court took the matter under submission.
When the trial court reconvened to rule on the matter, the prosecutor corrected the record regarding the prior DUI arrest, informing the trial court charges were filed against the victim about three months after the accident in this case. The victim entered a plea to misdemeanor driving under the influence, section 23103.5, a few months later and was granted three years informal probation. The prosecutor argued her position remained the same regarding admissibility of the DUI arrest because, at the time of the accident, no charges had been filed and the victim had no reason to believe charges would be filed. Defense counsel responded that the victim's knowledge of the arrest and the potential for charges to be filed at a later date was probative as to whether or not he lied about defendant's conduct following the accident. The trial court again took the matter under submission.
Again reconvening to rule on the matter, the trial court indicated it had reviewed "the procedural details relating to the original arrest, subsequent [section] 853.6 release, and citation, and so forth." The prosecutor then explained the victim was given a court date when he was cited and released. That court date was about six weeks before the accident. The victim appeared in court on that date and was told no charges had been filed, but to come back to court at a later date, 11 days after the accident in this case. On that date, there still being no charges filed, the matter was continued for two months, and thereafter, continued again for another month, at which point charges were filed and the victim ultimately entered the aforementioned plea to driving under the influence. These details did not alter the prosecution's position. The prosecutor argued, "it is pure speculation" the victim's DUI arrest "impacted any decision [he] did or did not make" following the accident. The prosecutor also argued admission of the evidence would require the prosecution "to explain this process to the jury, meaning put on evidence that says no, he wasn't facing charges, he was not told he was facing charges, this process went on for many months." In response, defense counsel pointed out the victim made various inconsistent statements concerning whether or not he wanted to handle the accident through insurance and argued: "I think his knowledge . . . he is continuously coming to court every month, every couple months at least, gives him knowledge that there is something possibly going on. He was arrested for a DUI, standard arrest. You get cuffed, and you get . . . jailed overnight for a DUI. So he is aware that there are some serious consequences that could happen from this arrest." With respect to the prosecution's argument regarding undue time consumption, defense counsel argued, "it would take about five questions" to cover the various court appearances.
Section 853.6 provides for "police-initiated pretrial release of misdemeanor arrestees by issuance of a citation." (Allen, Pretrial Release under California Penal Code Section 853 .6: An Examination of Citation Release (1972) 60 Cal. L. Rev. 1338, 1339.)
The trial court excluded the evidence, explaining: "I do not conclude that it is relevant, and to the extent that it is arguably relevant, which again, I say it isn't, just at this point, under [an Evidence Code section 352 analysis, I think it's time consuming and potentially confusing." (Italics added.) The trial court did, however, leave open the possibility of cross-examining the victim regarding the prior arrest depending on "whether indeed there does appear to be an issue about whether he was trying to avoid reporting it to insurance, and so forth, and he's disputing that." The trial court further explained, "if he's saying that it's not unusual that somebody might want to avoid having to report a matter to insurance," evidence of the DUI arrest would not be relevant; however, "if that's in dispute, and he's got a pending concern about a potential DUI based on an earlier arrest, then that's another matter and that does go to the defense argument that he did, in fact, want to avoid reporting it to the insurance company." The trial court then asked counsel: "Are you tracking me on that?" Both counsel indicated they understood the court's ruling.
During defense counsel's cross-examination of the victim, regarding the victim's interaction with defendant, defense counsel asked: "You never said, no, I want to handle this through insurance?" The victim answered: "I -- that is the first thing I offered, and he said, 'Oh, we'll get to that.' " Defense counsel asked whether the victim told M. he "would rather handle this informally," to which the victim responded: "I don't think so." Counsel then asked: "Do you remember testifying at the preliminary hearing that you told the driver that, in fact, you wished to handle this informally?" The victim answered: "I remember that it was both discussed on which way we would handle it, money or insurance, and I said the easiest way for you guys. So -- to the best of my ability, that's what I remember." The victim then agreed he was "okay with not hand[l]ing it with insurance" and explained he "just wanted to get the situation over with." During redirect, the prosecutor elicited responses clearing up that the conversation with M. regarding handling the matter through insurance or by other means occurred after the trip to the gas station with defendant. The victim denied making a deal with defendant in order to avoid informing his insurance company about the accident.
The victim's testimony essentially denied that he wanted to avoid reporting the accident to his insurance company. Indeed, as recounted immediately above, he claimed settling the matter through insurance was the first thing he offered when he spoke to defendant inside his car. He also denied telling M. that he wanted to handle the matter informally, instead claiming he was simply going along with what M. wanted to do. However, despite the fact the trial court's ruling left open the possibility of admitting evidence of the DUI arrest in such circumstances, the defense did not renew the motion to admit the evidence. This failure forfeits the claim on appeal. (See People v. Holloway (2004) 33 Cal.4th 96, 133; People v. Ennis (2010) 190 Cal.App.4th 721, 735-736.)
Neither defendant nor the Attorney General raised the issue of forfeiture in their briefing on appeal. Any party aggrieved by this conclusion may file a petition for rehearing under Government Code section 68081. However, as our Supreme Court has explained, this provision "does not require that a party actually has briefed an issue; it requires only that the party had the opportunity to do so. By requiring the parties to file opening and responding briefs, the Rules of Court automatically give the parties the opportunity to brief every issue that is raised in the appeal. [Citation.] Further, we hold that this also gives the parties the opportunity to brief any issues that are fairly included within the issues actually raised." (People v. Alice (2007) 41 Cal.4th 668, 677, italics added.) Where a claim on appeal is arguably forfeited, the issue of forfeiture is fairly included in the claim.
III
Cumulative Prejudice
Defendant further asserts the cumulative prejudice flowing from the foregoing claims requires reversal. We disagree. Neither singly nor cumulatively do these claims of error establish prejudice requiring reversal of defendant's convictions. (See People v. Lucas (1995) 12 Cal.4th 415, 475-476.)
IV
Pitchess Review
Defendant also asks us to review Officer Ryder's and Officer Smeja's personnel files under Pitchess, supra, 11 Cal.3d 531 in order to determine whether the trial court abused its discretion in concluding, after conducting an in camera review of various documents, that the files contain no additional discoverable material. We conclude any Pitchess violation was harmless.
A.
Pitchess Procedure
A criminal defendant has the right to "compel discovery" of certain information in police officer personnel files by demonstrating good cause. (Pitchess, supra, 11 Cal.3d at pp. 536-538.) That right is codified in sections 832.7 and 832.8 and Evidence Code sections 1043 through 1045. (City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 81 (City of Santa Cruz).)
A request for discovery of such records must be made by a written noticed motion (Evid. Code, § 1043, subd. (a)) supported by affidavits showing "good cause" for the discovery or disclosure of the documents sought. Good cause is shown by setting forth the "materiality" of the information sought to the subject matter of the pending litigation and stating "upon reasonable belief" that the identified governmental agency has the records or information sought. (Evid. Code, § 1043, subd. (b)(3); City of Santa Cruz, supra, 49 Cal.3d at p. 82.) This two-part showing is a "relatively low threshold for discovery." (City of Santa Cruz, supra, at p. 83.)
Once the trial court finds good cause has been shown, it must conduct an in camera review of the records and disclose only those records and information that are relevant and not subject to exclusion from disclosure. (Evid. Code, § 1045, subds. (a) & (b).) To facilitate meaningful appellate review, the trial court must make a record of the documents it considered before ruling on the motion. (People v. Mooc (2001) 26 Cal.4th 1216, 1228-1230.) A trial court's ruling on the discoverability of material in police personnel files pursuant to Pitchess is reviewed for an abuse of discretion. (People v. Hughes (2002) 27 Cal.4th 287, 330.)
B.
The Original Pitchess Proceedings and Subsequent Confirmation Hearing
Defendant filed a Pitchess motion seeking discovery of personnel files pertaining to Officers Ryder and Smeja. In support of the motion, defendant's original trial counsel, Paula Spano, submitted a declaration stating the defense contended these officers engaged in actions at the scene of the accident revealing racial bias. For example, the officers "searched, detained and arrested" defendant and M., who are African American, and also gave M. a sobriety test, while giving no such test to the victim, who is Caucasian and who caused the accident. Counsel also pointed out the officers searched M.'s car while not searching the victim's car. Counsel further asserted the "true facts differ substantially from those set forth by these officers" in their reports of the incident and they "were admittedly aggressive against [defendant]." The motion sought all complaints made against these officers during the five years preceding the underlying events involving "acts of unnecessary or excessive force," "falsification of evidence or testimony," "discrimination on the basis of race, national origin, religion, gender or sexual orientation," or "unlawful search and seizure."
At the hearing on the motion, Spano was allowed to incorporate into her declaration the derogatory statements made by Officer Smeja about defendant and M. described previously in this opinion. In opposition to the motion, the Attorney General argued (1) use of force complaints were not material to the charges against defendant, (2) complaints related to dishonesty or racial bias were also not material because the case turned on what the victim said to the officers, not what the officers observed at the scene, and (3) there was no plausible factual scenario substantiating a claim of unlawful search and seizure.
The trial court found good cause to review the officers' personnel files in camera, limited to complaints of use of excessive force, racial bias, material falsehoods, and unlawful search and seizure. The court began the in camera hearing by placing the custodian of records under oath. The court then asked the custodian whether he conducted a search for records relevant to the Pitchess motion, what department records the custodian searched, and whether he found potentially relevant records. The custodian indicated he conducted such a search and found files pertaining to complaints against Officer Smeja that were potentially relevant to the motion. The custodian provided the file numbers and orally described the complaints and internal findings as to each file. Regarding one complaint, the trial court asked the custodian, "give me a little more and factually what that was?" During the custodian's answer, the trial court interrupted and asked, "Do you have anything more than that, just the b[are] allegations? I mean some factual scenario." The custodian said he had a "summary," and the court asked if it could read it. The custodian replied, "[a]bsolutely." The court subsequently inquired about summaries for the other files, which the custodian provided.
No such files were found with respect to Officer Ryder. We therefore dispense with further reference to this officer.
The trial court then stated on the record that it had reviewed "the summary of facts on all allegations" and proceeded to make its rulings. In making its ruling on one incident, the court stated, "I did review the file," and subsequently stated it found the incident to be "remote and not material as to the particular charges." As for the matter about which the trial court had interrupted the custodian's oral summary, the court stated: "I did review that particular document as well. I find that to be dissimilar and not material." The trial court found the allegation involved in another incident to be material and ordered limited discovery.
During our preliminary review of this matter, we concluded the foregoing statements from the trial court were ambiguous concerning whether or not it reviewed each record produced by the custodian of records, or instead relied on the summary produced at the same time. It was also unclear to us whether that summary was part of the personnel files or something prepared by the custodian of records based on his review of the files. If the latter, this would be an improper delegation of the trial court's duty to review the documents in the file. (See Sisson v. Superior Court (2013) 216 Cal.App.4th 24, 39 [trial court may not "abdicate to a custodian its responsibility to examine the produced documents and assess the discoverability of the information contained in them"].)
We therefore issued an order directing the trial court to order the custodian of records to appear in camera to produce all records previously produced during the original Pitchess hearing, place the custodian under oath, and confirm the materials produced are those that were produced during the original hearing. We also augmented the appellate record to include the files so confirmed and directed the trial court to transmit copies of these files and the reporter's transcript of the in camera confirmation hearing to this court under seal.
The confirmation hearing provided this court with zero clarification. We decline to describe the hearing in any detail. It will suffice to note the confirmation hearing was held by the judge who presided over the trial, while the original Pitchess hearing was held by a different judge. The same district attorney was present during the new hearing, but had a "very shaky" memory of what happened. Two custodians of records appeared at the new hearing, neither of whom was the custodian who appeared originally. And finally, none of the actual complaint files were produced. As the custodians explained, hard copies of complaints are purged from the files after five years. What was produced was a printout retained by the district attorney with a brief summary of the four complaints made against Officer Smeja. This printout has a heading indicating it was produced using the California Highway Patrol's "Citizen Complaints Investigations System" and may be what the trial court was referring to in the original Pitchess hearing when it said it reviewed "the summary of facts on all allegations."
C.
Any Pitchess Error was Harmless
The record is essentially in the same state it was in before the confirmation hearing. To summarize, the trial court stated it reviewed "the file" with respect to one of the complaints and found the incident to be "remote and not material as to the particular charges." The record is ambiguous as to whether or not the trial court similarly reviewed the files with respect to the other two complaints made against Officer Smeja that were not disclosed to the defense, or instead relied on the summary produced by the custodian. In various contexts, we routinely presume the trial court performed its duty. (Evid. Code, § 664.) We need not, however, determine whether this presumption squares with the trial court's obligation to make "a record of the documents examined" (People v. Mooc, supra, 26 Cal.4th at p. 1229) during an in camera Pitchess hearing because we conclude any error was harmless.
"[A] defendant who has established that the trial court erred in denying Pitchess discovery must also demonstrate a reasonable probability of a different outcome had the evidence been disclosed." (People v. Gaines (2009) 46 Cal.4th 172, 182.) There is no such probability in this case for the same reasons we concluded exclusion of Officer Smeja's statements calling defendant and M. "shitheads" and "thugs" was harmless beyond a reasonable doubt. To repeat, Officer Smeja's testimony was not particularly important to the prosecution's case against defendant. Far more important was the testimony provided by the victim and his family. While Officer Smeja testified to his observations of defendant after his arrival at the scene of the accident and to certain untrue statements defendant made at that time, this testimony was largely cumulative of and corroborated by Officer Ryder's testimony. Finally, as we have more fully explained in connection with our analysis of defendant's claim of ineffective assistance of counsel, the case against defendant with respect to the robbery and witness intimidation counts was very strong.
V
Cruel and/or Unusual Punishment
Defendant also contends the three strikes sentence imposed by the trial court amounts to cruel and/or unusual punishment in violation of both the California and federal Constitutions. The contention is forfeited by defendant's failure to raise it before the trial court. Anticipating forfeiture, defendant asserts his trial counsel rendered constitutionally deficient assistance by failing to preserve the issue for review. We reject this assertion as well.
A.
Forfeiture and Ineffective Assistance
Because the determination of whether or not a sentence imposed in a particular case violates the constitutional proscription against cruel and/or unusual punishment is "fact specific, the issue must be raised in the trial court." (People v. DeJesus (1995) 38 Cal.App.4th 1, 27.) Here, as the Attorney General correctly observes, defense counsel made no objection to the sentence imposed by the trial court on the basis of cruel and/or unusual punishment. In an effort to avoid forfeiture, defendant asserts the claim is nevertheless preserved because counsel did move to strike his prior strike convictions under Romero. Defendant argues the Romero determination "involves essentially the same considerations" as those involved in determining whether or not a sentence amounts to cruel and/or unusual punishment. This is patently untrue. For that reason, we also reject his assertion the trial court's denial of the Romero motion rendered futile any objection on the basis of cruel and/or unusual punishment. Because defendant did not ask the trial court to decide the constitutionality of the sentence, he may not ask this court to do so. The claim is forfeited.
Anticipating forfeiture, defendant argues his trial counsel rendered constitutionally deficient assistance by failing to adequately raise the issue before the trial court. We disagree. As already set forth in detail, the right to counsel under the state and federal Constitutions "entitles the defendant . . . to 'the reasonably competent assistance of an attorney acting as his [or her] diligent conscientious advocate.' [Citations.]" (People v. Ledesma, supra, 43 Cal.3d at p. 215.) " 'In order to demonstrate ineffective assistance of counsel, a defendant must first show counsel's performance was "deficient" because his [or her] "representation fell below an objective standard of reasonableness . . . under prevailing professional norms." [Citations.] Second, he [or she] must also show prejudice flowing from counsel's performance or lack thereof. [Citation.] Prejudice is shown when there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." ' " (In re Harris, supra, 5 Cal.4th at pp. 832-833.)
Here, if it were true the sentence imposed amounted to cruel and/or unusual punishment, failing to raise the issue before the trial court would fall below the standard of reasonable competence and defendant would thereby be prejudiced by having to serve an unconstitutional sentence. (See, e.g., People v. DeJesus, supra, 38 Cal.App.4th at p. 27 [addressing merits despite forfeiture to forestall a claim of ineffective assistance of counsel].) So we address the merits of the claim, determine there are none, and conclude defendant's trial counsel did not render constitutionally deficient assistance. (See People v. Jones (1979) 96 Cal.App.3d 820, 827 [counsel is not required to advance meritless claims].)
B.
Analysis
The Eighth Amendment to the United States Constitution proscribes "cruel and unusual punishment" and "contains a 'narrow proportionality principle' that 'applies to noncapital sentences.' [Citation.]" (Ewing v. California (2003) 538 U.S. 11, 20 ; Lockyer v. Andrade (2003) 538 U.S. 63, 72 .) While this proportionality principle " 'does not require strict proportionality between crime and sentence,' " it does prohibit " 'extreme sentences that are "grossly disproportionate" to the crime.' [Citation.]" (Ewing v. California, supra, 538 U.S. at p. 23; Harmelin v. Michigan (1991) 501 U.S. 957, 1001 .) "Outside the context of capital punishment, successful challenges to the proportionality of particular sentences have been exceedingly rare." (Rummel v. Estelle (1980) 445 U.S. 263, 272 .)
Similarly, the California Constitution prohibits "cruel or unusual punishment." (Cal. Const., art. I, § 17, italics added.) A punishment may violate this provision "although not cruel or unusual in its method, [if] it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity." (In re Lynch (1972) 8 Cal.3d 410, 424 (Lynch).) In Lynch, our Supreme Court described three "techniques" the courts have used to administer the California Constitution's prohibition against cruel or unusual punishment: (1) an examination of the nature of the offense and/or the offender with particular regard to the degree of danger both present to society; (2) a comparison of the challenged penalty with the punishments prescribed for more serious offenses in the same jurisdiction, and (3) a comparison of the challenged penalty with the punishments prescribed for the same offense in other jurisdictions having an identical or similar constitutional provision. (Id. at pp. 425-427.) "A defendant has a considerable burden to overcome when he [or she] challenges a penalty as cruel or unusual. The doctrine of separation of powers is firmly entrenched in the law of California and the court should not lightly encroach on matters which are uniquely in the domain of the Legislature. We must always be aware that it is the function of the legislative branch to define crimes and prescribe punishments." (People v. Bestelmeyer (1985) 166 Cal.App.3d 520, 529.)
While acknowledging the different state and federal standards, defendant does not analyze the issue separately under each. Instead, he notes, "both standards prohibit punishment that is 'grossly disproportionate' to the crime or the individual culpability of the defendant" (People v. Mendez (2010) 188 Cal.App.4th 47, 64), and argues his sentence "is grossly out of proportion to [his] crimes, which did not involve any violence or injury." Not so.
We first note the United States Supreme Court has upheld statutory schemes that result in life imprisonment for recidivists against claims of cruel and unusual punishment. (See Lockyer v. Andrade, supra, 538 U.S. 63 [two 25-years-to-life terms for two separate thefts of videotapes]; Ewing v. California, supra, 538 U.S. 11 [25-years-to-life term for theft of three golf clubs]; Harmelin v. Michigan, supra, 501 U.S. 957 [LWOP for possession of a large quantity of cocaine].) In none of those cases did the offense triggering the life sentence involve any violence or injury.
In People v. Haller (2009) 174 Cal.App.4th 1080 (Haller), this court rejected a claim that a sentence of 78 years to life imposed upon a third-strike offender convicted of making criminal threats, stalking, and assault with a deadly weapon amounted to cruel and/or unusual punishment under either constitutional provision. (Id. at p. 1087.) With respect to gross disproportionality, we compared "the harm caused or threatened to the victim or society and the culpability of the offender with the severity of the penalty." (Id. at p. 1088.) We explained the defendant's actions, i.e., making threatening phone calls and going to the victims' home with a knife, "caused or threatened harm and violence." (Ibid.) We also noted that while the penalty prescribed for these crimes alone was far less than a life sentence, "we take into consideration that defendant is a repeat offender whom the Legislature may punish more severely than it punishes a first-time offender." (Id. at p. 1089.) However, "because the penalty is imposed for the current offenses, the focus must be on the seriousness of these offenses. [Citations.] 'Past offenses do not themselves justify imposition of an enhanced sentence for the current offense. [Citation.] The double jeopardy clause prohibits successive punishment for the same offense. [Citations.] The policy of the clause therefore circumscribes the relevance of recidivism. [Citations.] To the extent the "punishment greatly exceeds that warranted by the aggravated offense, it begins to look very much as if the offender is actually being punished again for his [or her] prior offenses." [Citation.]' [Citation.]" (Ibid.) Thus, focusing on the seriousness of making repeated threats of violence against the victims and going to their home with a knife, we noted this conduct was aggravated by the fact the defendant engaged in this conduct "while on probation for the same type of conduct" and with a long history of criminal conduct, including "enough serious felonies to trigger the three strikes law." (Id. at p. 1090.) Based on the foregoing, we concluded the defendant's sentence was neither grossly disproportionate to the crime in violation of the federal Constitution nor so disproportionate to the crime that it shocks the conscience and offends fundamental notions of human dignity in violation of our Constitution. (Id. at p. 1092.)
Here, defendant attempts to minimize the seriousness of his crimes by noting the robbery "involved the taking of $100 from [the victim's] wallet without the use of force or a weapon" and the witness intimidation was based on a threat that "did not bother or scare two of the three people who heard it . . . ." We acknowledge the victim's uncle and his girlfriend testified they were not scared or bothered by the threat. The victim's mother, however, was afraid enough to return to her car and lock the doors until police arrived. The threat itself impliedly threatened violence against the victim's family that would be committed by defendant's gang member friends were he to be sent back to prison. The robbery also involved an implied threat of violence, i.e., "I don't know if I want to knock you out or bust you up." This statement and defendant's aggressive conduct in the car made the victim afraid enough to not offer any resistance when defendant took $100 from his wallet. Thus, the crimes threatened violence against the victims. Defendant also "recognizes that he was punished for being a repeat offender, and not just for his current crimes," and also that "he has a significant history of criminality." Indeed, both of defendant's strike convictions were for robberies. As in Haller, supra, 174 Cal.App.4th 1080, focusing on the seriousness of defendant's current crimes, but also taking into account his lengthy criminal record, including repeated robberies, we conclude the sentence imposed is not grossly disproportionate to the crime and does not shock the conscience of this court.
Nevertheless, defendant argues a comparison of "the punishment in this case to the punishments prescribed in California for far more serious offenses" supports his claim of gross disproportionality. However, under the federal standard, this factor becomes relevant "only in the rare case where a comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality . . . ." (People v. Meeks (2004) 123 Cal.App.4th 695, 707.) We have already concluded this is not one of those rare cases. We therefore address the argument under the California Constitution only. As mentioned, the second Lynch "technique" used to administer the California Constitution's prohibition against cruel or unusual punishment is to "compare the challenged penalty with the punishments prescribed in the same jurisdiction for different offenses which, by the same test, must be deemed more serious." (Lynch, supra, 8 Cal.3d at p. 426, italics omitted.) Defendant argues second degree murder, voluntary manslaughter, mayhem, kidnapping, first degree robbery, rape, and various child sex offenses are "far more serious offenses" and yet his sentence of 70 years to life is "several times as severe as most of the offenses listed above, and more than twice that for first degree murder." (AOB 57-58) Setting aside the fact the maximum punishment for first degree murder is the death penalty (§ 190), defendant is a third-strike offender who committed robbery and witness intimidation after previously committing two robberies, as well as other prior non-strike offenses. Thus, he is not comparable to a non-recidivist defendant who commits a more serious crime for the first time. (See Haller, supra, 174 Cal.App.4th at p. 1092-1093.)
Defendant does not argue the third Lynch technique in his appellate briefing and has therefore forfeited any claim that an interjurisdictional analysis would support his claim of gross disproportionality.
Because defendant's challenge to the constitutionality of his sentence lacks merit, his trial counsel did not render constitutionally deficient assistance by not raising the issue before the trial court.
VI
Retroactivity of SB 1393
Defendant was sentenced on April 22, 2016. The law at that time did not allow the trial court to strike a serious felony prior used to impose a five-year enhancement under section 667, subdivision (a)(1). Senate Bill 1393 removed this prohibition effective January 1, 2019. (Stats. 2018, ch. 1013, §§ 1, 2.)
Relying on In re Estrada (1965) 63 Cal.2d 740 (Estrada), defendant argues these amendments apply to him because his judgment is not yet final. In Estrada, our Supreme Court stated: "When the Legislature amends a statute so as to lessen the punishment it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act. It is an inevitable inference that the Legislature must have intended that the new statute imposing the new lighter penalty now deemed to be sufficient should apply to every case to which it constitutionally could apply." (Id. at p. 745.) This includes "acts committed before its passage provided the judgment convicting the defendant of the act is not final." (Ibid.) Thus, under Estrada, absent evidence to the contrary, we presume the Legislature intended a statutory amendment reducing punishment to apply retroactively to cases not yet final on appeal. (Id. at pp. 747-748; People v. Brown (2012) 54 Cal.4th 314, 324.) Our Supreme Court has also applied the Estrada rule to amendments giving the trial court discretion to impose a lesser penalty. (People v. Francis (1969) 71 Cal.2d 66, 76.)
Defendant argues, "the new legislation gives trial courts discretion they did not previously have to impose a lesser penalty," thereby triggering the Estrada rule and requiring a remand to the trial court for resentencing. (Estrada, supra, 63 Cal.2d 740.) The Attorney General concedes the rule of Estrada requires retroactive application of SB 1393 to defendant's case, but argues remand is nevertheless unnecessary. As the Attorney General points out, we are not required to remand the matter to allow the trial court to exercise its discretion if "the record shows that the trial court clearly indicated when it originally sentenced the defendant that it would not in any event have stricken [the] enhancement." (People v. McDaniels (2018) 22 Cal.App.5th 420, 425.) Moreover, the trial court need not have specifically stated at the original sentencing hearing that it would not have stricken the enhancement if it had the discretion to do so. Rather, we may infer what the trial court's intent would have been from its statements and sentencing decisions at the original sentencing hearing. (See People v. McVey (2018) 24 Cal.App.5th 405, 419 ["In light of the trial court's express consideration of the factors in aggravation and mitigation, its pointed comments on the record, and its deliberate choice of the highest possible term for the firearm enhancement, there appears no possibility that, if the case were remanded, the trial court would exercise its discretion to strike the enhancement"]; see also People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896 ["the trial court indicated that it would not, in any event, have exercised its discretion to lessen the sentence" and therefore "no purpose would be served in remanding for reconsideration"].)
The Attorney General argues remand is unnecessary because the trial court denied defendant's Romero motion, and thereby clearly indicated it would not have exercised its discretion to strike the prior serious felony for purposes of the five-year enhancement. We disagree.
In denying defendant's Romero motion, the trial court stated: "The Court is constrained by statute and precedent in respect to exercising its discretion in striking a strike or striking both strikes, and whether the Court endorses the policy that was adopted by the [L]egislature and by the People is not of any relevance in this case. By saying that, I don't indicate whether I do or do not endorse that policy; I'm just saying that my obligation under the law is to follow the law. [¶] The People rather recently revisited the sentencing scheme known as Three Strikes and narrowed it so that it would focus on more serious offenders . . . . And [defendant]'s situation is what the People were looking at even when they narrowed it, and they said: We want to have Three Strikes (a) continue and (b) apply to people who have prior strikes and commit new serious or violent offenses, such as you have . . . . [¶] So what's presented here is a landscape in which the defendant has committed not one, but two new strike offenses, or two new serious offenses, and also have led a life of one serious crime after another. It is true that most of the . . . serious offenses you committed were when you were much younger, which is not unusual. And it did look like you may have come to the point upon your release from your most recent and longest stint in state prison that you might have turned your life around. [¶] But a situation presented -- and as I indicated, I totally disagree with and have struck the language that the Department of Probation had supplied in regard to this being a planned or sophisticated crime -- and you saw a vulnerable victim and you took advantage of that victim in committing the robbery. [¶] As robberies go, I agree with [defense counsel] that this is by no means the most aggravated that I've seen, but nonetheless it was a robbery, it was a serious crime, and it falls fully within the scope of the Three Strikes sentencing scheme. [¶] While it was not a planned thing -- at least not any extensive planning, that's for sure -- and it was a situational event, the situation presented and you took advantage of it, . . . it wasn't just a confined situational event, and it wasn't just a moment of bad and criminal judgment, it extended for a long period of time that day, and it extended into other chargeable offenses, many of which you were acquitted on, and it extended into the other felony offense for which you were convicted. [¶] So on the one hand, and while it is a factor to consider that the current offense is, you know, how serious a robbery is it. All robberies are serious, but some are more aggravated than others, and this is a less aggravated one, and that inures to your benefit. But the overall calculus of these things is informed considerably by the whole history of violent crime that you have engaged in and substantial evidence that you have not changed your ways. [¶] You continued by the way to pick up all kinds of disciplinary issues when you were in jail pending this matter. Often when I sentence somebody and I look at what they've been doing in jail, I sometimes deny them their good time. I'm not going to do that in the case, but the point I'm making is that you continue to violate the law, and you continue to violate it in serious ways after many opportunities to get your act together. [¶] I accept and respect the argument that [defense counsel] has made on your behalf that you had a very tough background, tough childhood, not the chances that a lot of people have, and I very much appreciate the letters that members of your family and friends and other folks who know you have written on your behalf, but the reality is . . . that you are exactly within the scope of the Three Strikes Law, that it is the intention of the [L]egislature and the intention of the public in the passage of the law in this state that somebody who has a history like you do and who comes out and then resumes criminality with new serious crime, including the same kind of crime, robbery, that got you in prison in the first place, you are within the Three Strikes sentencing scheme, and the Court is denying the Romero motion ably filed and argued by [defense counsel] because, in my view, it would be an abuse of discretion to grant it."
We need not determine whether or not, as the trial court suggested, it would have been an abuse of discretion to find, "in light of the nature and circumstances of [defendant's] present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects," that defendant fell outside the spirit of the three strikes law and therefore "should be treated as though he had not previously been convicted of one or more serious and/or violent felonies" for purposes of three strikes sentencing. (People v. Williams (1998) 17 Cal.4th 148, 161.) It was manifestly not an abuse of discretion for the trial court to find defendant fell within the spirit of the law. And perhaps the trial court will reach the same conclusion with respect to imposing the five-year enhancements. However, in ruling on the Romero motion, the trial court made clear it felt "constrained" by the case law following the Romero decision to deny the motion. And while a similar analysis should be employed in determining whether or not to strike a prior for purposes of the five-year enhancement, this is a separate inquiry from the Romero inquiry. In light of the trial court's statements expressing constraint in ruling on the Romero motion, we cannot conclude "the record shows that the trial court clearly indicated . . . it would not in any event have stricken [one or more five-year] enhancement[s]." (People v. McDaniels, supra, 22 Cal.App.5th at p. 425.)
DISPOSITION
The matter is remanded to the trial court for the limited purpose of allowing the trial court to exercise its sentencing discretion in determining whether or not to strike one or more serious felony priors for purposes of imposing the previously mandatory five-year enhancement under Penal Code section 667, subdivision (a)(1). In all other respects, the judgment is affirmed.
/s/_________
HOCH, J. We concur: /s/_________
BLEASE, Acting P. J. /s/_________
MURRAY, J.