Opinion
G050742
04-28-2015
THE PEOPLE, Plaintiff and Respondent, v. CHARLES MARCOS BADILLO III, Defendant and Appellant.
Randi Covin, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115 .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. SWF10001582) OPINION Appeal from a judgment of the Superior Court of Riverside County, Albert J. Wojcik, Judge. Affirmed. Randi Covin, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
Charles Marcos Badillo III appeals from a judgment after the jury convicted him of making a criminal threat and unlawful possession of a firearm and ammunition and found he used a firearm while he made the criminal threat. Badillo argues the trial court erred in admitting gang evidence and the court erred in denying his motion to strike two of his prior strike convictions. Although we are troubled by the volume of gang evidence admitted at trial, we conclude the court did not err. Additionally, we conclude the court did not abuse its discretion in refusing to strike one or more of Badillo's prior strike convictions. We affirm the judgment.
FACTS
The Offenses
Vernon "Bubba" Phillips hired Ivory Russell, who is African-American, to move his belongings. Russell brought his friend, Christopher Kaiser, who is half African-American. Phillips was Badillo's neighbor and friend. Russell and Kaiser planned to move Phillips in the morning, but because of logistical problems, they did not start until that very hot July afternoon. Phillips was not home.
As Russell and Kaiser worked, Russell saw a man and woman walk up and down the street and he noticed Badillo, whom he had never met, look at them from across the street. Russell heard Badillo tell the couple, "They're not supposed to be in this area" or something similar. Russell told Kaiser to ignore him. Badillo continued staring at Russell, and Badillo said, "Yeah, we don't like your kind in this area." Russell said, "Hey, man. I'm here to work. Do a job. It ain't got nothing to do with you." Russell saw the couple walk away. Russell heard Badillo say, "Nigger[,]" or "Nigga."
Russell angrily asked Badillo, "Well, what do you want to do?" Russell and Badillo stepped towards each other, but Badillo retreated to his home, and Russell continued to work. About 20 or 30 seconds later, Badillo came out of his house with a rifle. Badillo raised and pointed the rifle at Russell and said, "I'll kill you, nigger." Badillo raised the rifle above his hips but not to eye level. Kaiser saw Badillo point the gun at Russell, but he never pointed it at Kaiser. Badillo also made statements to the effect: "You don't know who you're messing with," "I'll shoot you," and "We don't like your kind in this neighborhood." Fearing for his life, Russell said, "Well, if you're going to shoot me, you might as well shoot me. Because if you miss and I get my hands on you, I'm going to kill you."
Kaiser, who had called 911, yelled at Russell to get inside the house. Badillo lowered the rifle, which he had pointed at Russell's torso for five to eight seconds, and walked back inside his house. Badillo reappeared with his children, and as they got into his car, police officers detained Badillo. Officers, including Jamie Gonzalez, found the rifle and ammunition in Badillo's backyard. Both Russell and Kaiser told an officer they feared for their lives. Officers arrested Badillo.
Pretrial Proceedings
An information charged Badillo with making a criminal threat against Kaiser (Pen. Code, § 422, all further statutory references are to the Penal Code, unless otherwise indicated) (count 1), making a criminal threat against Russell (§ 422) (count 2), possession of a firearm by a felon (§ 12021, subd. (a)(1); § 29800, subd. (a)(1), now provides the same thing) (count 3), and possession of ammunition by a felon (§ 12316, subd. (b)(1); § 30305, subd. (a)(1), now provides the same thing) (count 4). The information alleged Badillo committed counts 1 and 2 because of the victims' race (§ 422.75, subd. (a)), while he personally used a firearm (§§ 12022.5, subd. (a), 1192.7, subd. (c)(8)). The information also alleged Badillo suffered the following: three prior prison terms (§ 667.5, subd. (b)); two prior serious felony convictions (§ 667, subd. (a)); and three prior serious and violent felony convictions (§§ 667, subds. (c) & (e)(2)(A), 1170.12, subd. (c)(2)(A)).
Badillo filed a motion to strike his prior 1995 and 1997 strike convictions pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497, because the convictions were associated "with his lifelong struggle with a serious drug addiction." The 1995 convictions were for two counts of assault with a deadly weapon (§ 245, subd. (a)(1)), and the 1997 conviction was for one count of robbery (§ 211). Badillo argued he was outside the spirit of the "Three Strikes" law scheme because of the following: during the current offense, he did not fire the rifle, no one was injured, and it was brief; his prior convictions are remote; and he struggled for many years with drug addiction and since 2009 he has rehabilitated through substance abuse, literacy, parenting, and vocational programs. He repeatedly claimed a term of 25 years to life "would be a disproportionate punishment in light of his history of non-violent offenses." He included supporting letters and certificates. He never once mentioned cruel and unusual punishment.
The prosecutor opposed the motion, arguing Badillo used a gun during the offenses, which were racially motivated. The prosecutor argued Badillo had three prior strikes and he violated parole six times from 2001 to 2009. The prosecutor concluded Badillo had not earned a dismissal of a strike. Badillo replied, adding his character and prospects were much improved from his last incarceration. He included pay stubs and more support letters.
Jury trial commenced in late January 2012. The following month, the trial court declared a mistrial after the jury could not reach verdicts on any of the counts. A second trial commenced in February 2013; an amended information changed the date of one of the prison priors. The prosecutor filed a motion to introduce gang evidence to prove the charged hate crime allegations. Badillo filed opposition to the motion, arguing gang evidence was impermissible character evidence and it was unduly prejudicial. Although Badillo said his rights to due process and a fair trial were violated, he did not mention the Sixth Amendment's confrontation clause.
At an Evidence Code section 402 hearing, the prosecutor asserted gang evidence was introduced at Badillo's first trial and it should be admitted again. Defense counsel objected arguing Badillo moved from Pico Rivera when he was a teenager, and the gang evidence would inflame the jury against him. The court indicated expert testimony would be relevant if the expert would testify "Pico Rivera 13" (Rivera 13) gang members commit hate crimes or express racist opinions because that evidence was relevant to the hate crime allegations. The court explained all evidence presented against a defendant is prejudicial, but in this case the probative value of the evidence was not substantially outweighed by its undue prejudice.
Prosecution Evidence
At trial, the prosecutor offered the testimony of Alden Allen, the man who walked up and down the street with his girlfriend Sheena Pitts. Allen testified he heard an argument but insisted he did not see anything. However, Allen also said he talked to Badillo the day after the incident and Badillo admitted he had a rifle and pointed it at Russell and Kaiser. Allen said he spoke with Riverside District Attorney investigator Kim Robinson over the telephone.
Robinson testified he recorded his telephone conversation with Allen; the recording was played for the jury. Allen told Robinson that Badillo had issues with Phillips because Badillo thought Phillips "hit[] on" Badillo's wife. Allen told Robinson that Badillo pointed a gun at Russell and Kaiser. He also said that he spoke with Badillo the day after the incident and Badillo said the rifle was not loaded.
Shawn Steele, a Riverside County Sheriff, testified that when Badillo was booked, he admitted he was a Rivera 13 gang member who "'[d]oes not get along with whites or blacks.'" On cross-examination, Steele admitted she did not book Badillo. She also said he was housed with Caucasians and African-Americans, and he was not involved in any race-related altercations while in jail.
Officer Eric Goodwyn testified that in September 2008 he conducted a traffic stop where Badillo was a passenger in a car driven by a woman. Badillo gave his home address as the Hemet address where the incident occurred here. Badillo said his gang was "Rivera Parkside" out of Pico Rivera, where he was born. Badillo had the following tattoos: "Sureno" over his right eye; "13" on his neck; "310" on his stomach; and "Southeast" and "Rivera" on his chest. Badillo said he worked at "Desert Concrete."
Deputy Sheriff Joshua Carrasco testified that in January 2009 he conducted a traffic stop involving Badillo. Badillo admitted to Carrasco he was in a gang. Badillo had the following tattoos: "13" on his neck; and "SE" and "Fuck Love" on his head.
Officer Takashi Nishida testified that in April 2008 he conducted a traffic stop of Badillo and his ex-girlfriend. Badillo said he was a member of "Rivera Trese Parkside." He said he was employed at "Badillo Concrete."
Officer Kevin Lloyd testified as the prosecution's gang expert. After detailing his background, training, and experience, Lloyd testified concerning primarily criminal street gangs in Pico Rivera, including Rivera 13, one of four major gangs in Pico Rivera. Lloyd testified concerning the culture and habits of criminal street gangs, including how someone joins a gang, the importance of respect, and the significance of gang tattoos. Lloyd said Rivera was a southern Hispanic gang that was loyal to the Mexican Mafia and was called "Rivera 13," "Rivera Trece," "Viejo Rivera," "Viejas," "R13," "RV," or "Rivera Trece Parkside." He testified at length concerning the Hispanic gang hierarchy from Rivera, to Surenos, who are southern gang members, to the Mexican Mafia. He analogized the gang hierarchy to sports and said Rivera was high school level, Surenos college level, and Mexican Mafia professional level. He said Surenos have "Sureno" and "Southside" tattoos and Mexican Mafia have "black hand," "E," "M-A," "red lipstick kiss," which represents the number "13", and "13" tattoos. He said the number "13" is significant because it represents "M," the 13th letter of the alphabet.
Lloyd stated Rivera 13's primary activities were vandalism, possession of weapons, narcotics sales, and assaults from beatings to murder. Lloyd said there were not many racially motivated crimes in Pico Rivera because the city was predominantly Hispanic but there were racially motivated crimes in jail involving Rivera 13 against African-Americans even though they are segregated. He added Rivera 13 gang members have disdain for African-Americans and any disrespect has to be met with violence. He stated Rivera 13 gang members are almost always armed and they use weapons to sell narcotics, the proceeds of which they send to the Mexican Mafia. The parties stipulated "Pico Rivera 13" also known as "Rivera 13" or "R13" is an active criminal street gang in Los Angeles County.
Lloyd said it was common for Rivera 13 gang members to move from Pico Rivera and still be a part of the gang because if you rise to the level of a Sureno, you are respected throughout Southern California. He said to leave the gang you have to remove the gang tattoos. Lloyd opined Badillo was an active member of Rivera 13 based on his review of his criminal history, prior law enforcement contacts, tattoos, police reports, corrections records, and jail telephone calls. He added Badillo was a "hardcore Sureno" and "a more violent gang member predator."
Lloyd testified concerning the significance of Badillo's tattoos, including numerous Rivera tattoos. He stated the "13" on his neck indicates he is a Sureno and a Mexican Mafia member and "310" was the area code for Pico Rivera. He said "rock and roll gangster" means Badillo is proud to be a gangster and "R" on his face means he is proud to be from Pico Rivera. He explained the clown on his shoulder has the following meanings: his gang moniker, "Payaso," which is Spanish for "clown"; and it demonstrates he chose a gangster lifestyle and is prepared to accept the eventual consequences—prison or death. Lloyd said "Sureno" over his eye is "just so there is no doubt that he's a member of the Sureno or the Southern Hispanic gang" and "SE" on the top of his head means he has graduated from Rivera to all of southeast Los Angeles; he said facial tattoos indicate an intent to appear menacing. He said "I rather fuck you" on his forehead is derogatory to women, consistent with Rivera 13's male domination. According to Lloyd, "You can't get to the level of a Sureno with respect with these tattoos . . . unless you have committed violence, done prison terms." Based on hypothetical questions mirroring the facts of the case, Lloyd opined the hypothetical defendant's conduct was consistent with that of a Rivera 13 gang member.
On cross-examination, Lloyd stated a Rivera 13 gang member could have a Caucasian friend or an African-American girlfriend but the gang member could not take the girlfriend to a Rivera 13 party. He added there was one African-American Rivera 13 gang member. The trial court instructed the jury on the limited purpose of the gang testimony after each of the officers testified.
The parties stipulated that in August 2004 Badillo was convicted of violating section 591, felony damaging or destroying a telephone line, and he was prohibited from possessing a firearm or ammunition for life.
Defense Evidence
Badillo offered Pitts's testimony. Pitts testified she saw Badillo holding the gun in his arms, with his hands, but she did not hear him threaten anyone. She did hear Badillo say something to the effect it was "Bubba's gun." Badillo's wife, Marlene Badillo (Marlene), testified concerning Badillo's friendship with Phillips, Phillips's guns, and Phillips making suggestive comments to her. Elton Johnson, an African-American, testified he knew Badillo for 20 years and he did not know him to be a racist and never heard him make any racist comments.
Badillo also offered the testimony of his own gang expert, Martin Flores, a community activist who after he graduated from University of California at Berkeley, devoted his life to educating at-risk youth after his younger brother was killed in a drive-by shooting. After detailing his background, training, and experience, Flores testified concerning Hispanic criminal street gangs, including Rivera 13. Flores explained he reviewed prior testimony transcripts, corrections documents, field interview cards, investigator reports, interview transcripts, and telephone call transcripts. He also interviewed Badillo and his father, and Marlene. Flores explained Badillo's statement "he does not get along with . . . 'blacks and whites'" concerned jail housing politics and did not represent his "everyday life[]" views. He stated there were no African-American or Caucasian gangs in Pico Rivera because they do not live there. He added there were no documented racial crimes in Pico Rivera. Flores testified Badillo's "Sureno" tattoo meant he had been in prison and not that he had reached an elevated status within Rivera 13. He explained the rules dictating who a gang member may associate with in prison do not apply on the street. Flores stated Badillo's "SE" tattoo meant he was a gang member from southeast Los Angeles.
Flores opined Badillo was not a gang member at the time of the incident. He based his opinion not only of his review of the above-mentioned documents but also on the fact Badillo lived in Hemet, about 80 miles away from Pico Rivera, and there was no reported Rivera 13 activity in Hemet. He also relied on the fact Badillo was not with other Rivera 13 gang members during his recent law enforcement contacts and he did not have any recent gang tattoos. He added there was no evidence Badillo was Mexican Mafia or a Sureno, although he did have to follow their rules while incarcerated. Additionally, he had consistent work history and law enforcement did not find any gang indicia at his home. Flores concluded Badillo had not been an active gang member for years. On cross-examination, Flores testified he knew Badillo was involved in a race riot in Pelican Bay prison in 2000.
Badillo testified on his own behalf. Badillo admitted he aggressively said to Russell, "'My nigga, my nigga, where's Bubba? What's happening. Where's Bubba? I'm a little upset. I need to talk to Bubba.'" He described this as street talk and meant no disrespect. Badillo explained that earlier the day of the incident he saw Phillips left a rifle in Badillo's backyard, and when Russell did not respond to him, he went to his backyard to get the rifle to return to Phillips. Badillo said as he walked towards Phillips's house he first held the rifle by the barrel "up and down" and then at a 45 degree angle. He denied ever pointing the rifle at Russell or Kaiser or raising the rifle to eye level. Russell told Badillo, "'Nigga, you better make it count[,]'" and "'I'm gonna kill you.'" Badillo said he did not want to give the gun to Russell because the situation was escalating and he put the rifle where officers found it.
Badillo testified he was the youngest of seven boys; all his brothers were Rivera 13 gang members. He moved from Pico Rivera to Hemet with his parents when he was about 13 years old. He dropped out of high school in the ninth grade, became addicted to heroin, and committed crimes to fuel his drug habit; he had been clean for five years. He committed the 1995 and 1997 offenses to get money to buy drugs.
Badillo denied he hated African-Americans. He also denied telling the deputy in jail he "does not like blacks or whites." Badillo said he told the deputy he "house[s] with southern Mexicans" and "cannot house with blacks or whites[]" for his safety and others pursuant to jail rules. Badillo denied he participated in the riot in Pelican Bay prison, denying it was a race riot.
Badillo denied telling officers who pulled him over he was Rivera 13, but he admitted he told them he was from Pico Rivera. He got his first tattoo at age 11 and his first gang tattoo at age 13. He got a gang tattoo to be a part of something. Badillo explained the significance of all his tattoos, providing innocuous reasons for many of them. With respect to his "Sureno" and "SE" tattoos, he said they signified only that he was a southern California gang member from southeast Los Angeles and they did not signify he had reached any upper echelon in the Surenos. Badillo did not remove his tattoos because it was "who [he] was." Badillo testified he had not been active in Rivera 13 since he was a teenager and did not "gang bang[]" in Hemet. He spoke of his rehabilitation efforts, including drug treatment and steady employment, since being released from prison in July 2009.
In rebuttal, the prosecutor called Phillips to testify. Phillips testified the rifle was Badillo's but he stored it at Phillips's house. He also stated he heard Badillo say "nigger" a couple times and that he did not like African-Americans; they made racial jokes. Gonzalez was recalled. He testified Badillo never told him that he found a gun in his backyard. In surrebuttal, Badillo was recalled. Badillo denied it was his rifle.
As relevant here, the trial court instructed the jury with CALJIC No. 17.24.3. This instruction concerned the limited purpose of the gang evidence.
Verdicts & Sentencing
After asking four questions during jury deliberations, the jury convicted Badillo of counts 2, 3, and 4 and found true the firearm use enhancement as to count 2. The jury could not reach a verdict on the hate crime allegation as to count 2, or on count 1; the trial court later dismissed that count and allegation. At a bifurcated bench trial, the court found true all the prior conviction allegations.
The prosecutor filed a sentencing memorandum, which included opposition to Badillo's request to strike his prior convictions. The prosecutor argued Badillo illegally possessed a weapon and threatened to shoot two unarmed men, he suffered three prior strike convictions, and any remoteness of the 1995 and 1997 convictions was outweighed by his 2004 conviction and numerous parole violations.
At the sentencing hearing, the trial court stated it had read and considered the parties' written submissions and the probation report. Defense counsel indicated that if the trial court dismissed the 1995 conviction and sentenced him for the one strike, the court could sentence Badillo to 28 years and four months, a sentence more appropriate for the offense, and one where he would be released when he is about 60 years old. Counsel argued Badillo's 1995 and 1997 convictions were remote, and his 2004 conviction was a result of him pulling the telephone line from the wall when his wife tried to call his parole officer and report Badillo for using heroin. The prosecutor reiterated Badillo had not been law abiding since 1997 and submitted.
The trial court denied Badillo's request to strike one or more of his prior strike convictions. The court noted that in addition to his felony convictions, Badillo's parole was revoked numerous times and he had not led a blameless life. The court determined the current offense was in fact a violent felony and concluded Badillo was a danger to society. The court concluded there was no "factual legal basis" for it to exercise its discretion pursuant to section 1385 and Badillo did not fall outside the spirit of the Three Strikes law. The court added, "I further find that under the circumstances the penalty does not constitute cruel and unusual punishment."
The trial court sentenced Badillo to a determinate term of 21 years as follows: the upper term of six years on count 3; the middle term of four years on the section 12022.5, subdivision (a), enhancement attached to count 2; two five-year terms on the section 667, subdivision (a), prior serious felony conviction enhancements; and a one-year term on the section 667.5, subdivision (b), prior prison term enhancement. The court sentenced Badillo to an indeterminate term of 25 years to life on count 2. The court stayed the sentence on count 4 pursuant to section 654.
DISCUSSION
I. Admission of Gang Evidence
Badillo argues the trial court erred in admitting gang evidence, when there were no gang charges, because the evidence was irrelevant, unduly prejudicial, and violated his Sixth Amendment confrontation rights. In addition to arguing the court should not have admitted any gang evidence, Badillo contends undue prejudice substantially outweighed the probative value of the following evidence: evidence Badillo was an active Rivera 13 gang member and Mexican Mafia associate; evidence Rivera 13 gang members committed crimes; evidence he was involved in a race riot in prison; and evidence he told a deputy he does not get along with African-Americans or Caucasians. He also contends admission of the evidence of his statement to the deputy while in jail violated his federal right to confront the witnesses against him and was hearsay.
The Attorney General argues Badillo forfeited his federal confrontation clause claim because he did not object on those grounds below and the evidence was relevant and not unduly prejudicial because the trial court repeatedly instructed the jury on the limited use of the gang evidence and the jury's verdicts demonstrate it was not swayed by the gang evidence. As we explain below, although we are troubled by much of the gang evidence, we conclude the court did not err.
In People v. Lindberg (2008) 45 Cal.4th 1, 6, defendant was charged with among other things murder because of the victim's race. There was evidence that before the offense defendant and family members formed a white supremacist gang, defendant made written and oral statements establishing the murder was racially motivated, defendant possessed indicia of membership in white supremacist organizations, defendant committed a racially motivated assault while in custody, and defendant made other racially derogatory statements in and out of custody. (Id. at pp. 8-11, 14-17.) The prosecutor offered the testimony of a police officer who was an expert on white supremacist organizations and who opined defendant was a white supremacist. (Id. at pp. 17, 41.) The Supreme Court rejected defendant's argument admission of the expert's testimony was error. (Id. at pp. 41, 45-50.) The court explained the expert testimony was relevant because it would assist the jury in determining defendant's state of mind—whether defendant committed the murder because of the victim's race. The court added the expert's testimony would assist the jury in understanding racist symbols, phrases, leaders, and beliefs. (Id. at pp. 45-46.) The court also stated the trial court properly concluded the probative value of the evidence was not substantially outweighed by its prejudicial effect—there was other evidence establishing defendant was a racist, and the trial court properly instructed the jury not to be influenced by passion.
Based on Lindberg, we conclude gang evidence, including expert testimony, may be admissible, even when gang offenses and enhancements are not charged, if the gang evidence is relevant to an issue in the case. Here, the prosecutor alleged Badillo made criminal threats because of Russell's and Kaiser's race (§ 422.75, subd. (a)). Thus, any gang evidence that tended to prove the hate crime allegations was relevant. In other words, evidence Rivera 13 gang members harbor ill feelings towards African-Americans and Badillo was a Rivera 13 gang member would be relevant because it would tend to establish Badillo harbored ill feelings toward African-Americans and he made the criminal threats against Russell and Kaiser because they were African-American. Other evidence Badillo was racist, including his statements, was relevant, assuming the statements satisfied all required evidentiary rules.
However, the gang evidence went beyond that here. In fact, this panel has seen less gang evidence in cases where the gang offense and enhancement are at issue.
The prosecutor elicited testimony from Lloyd that Rivera 13 gang members are almost always armed and their primary activities include violent offenses, even though the parties before trial anticipated they would stipulate Rivera 13 was a criminal street gang. Additionally, Lloyd testified his opinion Rivera 13 gang members "disdain" for African-Americans was based on his experience "mostly in the jail." The prosecutor elicited from Lloyd significant testimony about Surenos and the Mexican Mafia which bore little if any relevance to the issues at trial. Lloyd testified at length about prison culture concerning Surenos and the Mexican Mafia and what gang members do while incarcerated. Needless to say, the incident here did not occur while Badillo was in custody, and a person's institutional behavior is not necessarily predictive of how that person will act while out of custody. Because the prosecutor was free to question Lloyd about the Surenos and the Mexican Mafia, Lloyd was also allowed to testify concerning Badillo's "Sureno" tattoos and portray him as "a more violent gang member predator." This was not the issue at trial. The issue, as it related to the gang evidence, was whether Badillo was a racist because he was a member of Rivera 13.
The record reflects the prosecutor went beyond the scope of the trial court's Evidence Code section 402 ruling. However, during the prosecutor's questioning of Lloyd, defense counsel never objected to the prosecutor's questions as violating the court's pretrial ruling. Additionally, we note Badillo does not argue on appeal his defense counsel was ineffective. Perhaps this is because a claim for ineffective assistance of counsel "'is more appropriately raised in a petition for writ of habeas corpus.' [Citation.]" (People v. Gray (2005) 37 Cal.4th 168, 207.)
The prosecutor's attempt to prove the hate crime allegation by resorting to this irrelevant evidence can perhaps be attributed to the fact there was no evidence Rivera 13 gang members committed hate crimes. Lloyd, the prosecution expert, said there was no evidence Rivera 13 committed race-based hate crimes because Pico Rivera was nearly entirely Hispanic. Additionally, on cross-examination, Lloyd admitted Rivera 13 had one African-American gang member. Finally, the defense expert, Flores, testified there were no documented racial crimes in Pico Rivera in part because only Hispanics lived there. Although much of the gang evidence was irrelevant or more prejudicial than probative, we conclude the court did not err in admitting it.
II. Sentence
Badillo contends the trial court erred when it refused to dismiss a prior conviction and his sentence constituted cruel and unusual punishment. We disagree.
The purpose of the Three Strikes law is to "ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of one or more serious and/or violent felony offenses." (§ 667, subd. (b).) A defendant who commits any felony with one strike prior must be sentenced to twice the base term of the current felony. (§ 667, subd. (e)(1).)
Section 1385, subdivision (a), allows a court to dismiss strike priors in "furtherance of justice." There is a "legislative presumption that a court acts properly whenever it sentences a defendant in accordance with the three strikes law." (People v. Carmony (2004) 33 Cal.4th 367, 376 (Carmony).) Departure from this presumption will be justified only by extraordinary circumstances. (Id. at p. 378.) The question is "'whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.'" (Id. at p. 377.) We review the trial court's decision for abuse of discretion. (Id. at p. 376.)
As the Carmony court explained, two legal principles guide our review: First, "'"[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary."'" (Carmony, supra, 33 Cal.4th at p. 376.) If this is not shown, the trial court "'"is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review."'" (Id. at pp. 376-377.) Second, a "'"decision will not be reversed merely because reasonable people might disagree. 'An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.'"'" (Id. at p. 377.) Thus, "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.) "'[W]here the record demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the trial court's ruling, even if we might have ruled differently in the first instance.'" (Id. at p. 378.)
Here, we cannot say the trial court's denial of Badillo's request to strike his prior convictions was irrational or arbitrary. The court concluded Badillo was not outside the scheme's spirit after considering his prior convictions, the present offense, and his background, character, and prospects. The court stated Badillo had served three prior prison sentences and his parole had been revoked "about nine times," most recently in 2009. The court opined this record indicated he had not led a blameless life since his strike convictions and this weighed against a finding they were too remote. The court stated count 2, because of the firearm use enhancement, was a violent felony. The court reasoned Badillo's conduct of threatening Russell, going to his house to get the rifle, and returning demonstrated he was a danger to society. The court stated that after considering his background, history, and prospects, it could find no factual basis to exercise its discretion and dismiss a strike conviction. The record demonstrates the court properly considered all the relevant factors in exercising its discretion.
Badillo argues a number of factors lessened his culpability, i.e., Phillips previously made an untoward advance at his wife, Russell was confrontational and irritated, the rifle was not loaded and no one was injured, and the first jury could not reach verdicts. The trial court considered these facts, which were included in Badillo's Romero motion, and it was within the court's discretion to conclude they did not justify relief. Badillo also asserts his prior convictions were the result of his heroin habit he has since kicked. We commend Badillo on his sobriety and his attempt to be a better parent and improve his career prospects. But the trial court concluded that despite his attempts to be a better person, his act of retrieving a rifle and confronting Russell indicated he was still a danger to society. There was no evidence the current offense had anything to do with Badillo's substance abuse problem. Indeed, he testified he had been clean for five years. Even if we were to disagree with the trial court's ruling, we cannot substitute our judgment for the trial court's judgment when the court was aware of its discretion and relied on the proper factors. (Carmony, supra, 33 Cal.4th at p. 378.)
In a related claim, Badillo argues his "effective LWOP sentence" constitutes cruel and unusual punishment. The Attorney General responds Badillo forfeited appellate review of this claim because he did not raise it below. Although Badillo, in arguing the trial court should dismiss a strike, stated his 25 years to life sentence would be disproportionate because of his non-violent offenses, he did not raise the cruel and unusual punishment argument below. Indeed, he did not mention, much less discuss, the factors courts look to in deciding cruel and unusual claims. (In re Lynch (1972) 8 Cal.3d 410, 424 (Lynch); accord, People v. Dillon (1983) 34 Cal.3d 441, 478 (Dillon).) It is true the trial court stated the sentence was not cruel and unusual punishment, but it was an isolated statement without any reasoned analysis. We also note Badillo focuses on the self-serving reason he committed his prior convictions, drug addiction, and not the nature of the actual conviction. Badillo was not convicted of drug offenses; he was convicted of two counts of assault with a deadly weapon and robbery.
On appeal, the gravamen of Badillo's cruel and unusual punishment claim is his sentence of 21 years plus 25 years to life is a de facto life sentence because he will be 75 years old when he is first eligible for parole and his life expectancy is considerably shorter than that. He cites to a life expectancy table for Hispanic males out of custody and asserts his life expectancy in custody is lower. Badillo relies on Graham v. Florida (2010) 560 U.S. 48 (Graham), and People v. Perez (2013) 214 Cal.App.4th 49 (Perez), to support his claim. The Attorney General notes both those cases involved juvenile offenders, and Badillo was not a juvenile offender. Badillo does not explain how Graham and Perez are applicable to non-juvenile offender cases. Nor does he discuss the Lynch-Dillon test. Thus, Badillo has not carried his burden of establishing his sentence was cruel and unusual punishment.
DISPOSITION
The judgment is affirmed.
O'LEARY, P. J. WE CONCUR: RYLAARSDAM, J. ARONSON, J., Concurring.
I write separately to explain further why I join in the majority's decision to affirm even though it appears the jury heard unduly prejudicial gang evidence.
The prosecution sought a pretrial ruling allowing it to present evidence Charles Marcos Badillo belonged to "Pico Rivera 13," a predominantly Hispanic gang allegedly harboring a group animus toward African-Americans. Badillo opposed the motion, asserting the evidence constituted inadmissible character evidence (Evid. Code, § 1101, subd. (b)) and any probative value of the evidence was substantially outweighed by its inflammatory nature.
At the hearing on the motion, the trial court observed, "If the [gang] expert were to testify that they [Pico Rivera 13] do have certain attitudes, opinions toward blacks, if they have committed crimes against blacks, if they have been involved in what might be considered hate crimes, that's one thing. If that testimony is not forthcoming, then the gang affiliation, I think, would be irrelevant." The court found the evidence more probative than prejudicial "if, in fact," the prosecution "brought out this hate element, this prejudicial element." (Italics added.) When Badillo's counsel asked if the court would limit the evidence to "specific instances of hate crimes," the court responded, "I don't know what the People have in mind. It seems to me there has to be some foundation laid regarding the crimes that the gang has been involved with - there have to be some limits on that." Thus, the court allowed the prosecutor to admit evidence Badillo's gang committed hate crimes against African-Americans, but made admission of the gang evidence contingent on whether the prosecution could establish an adequate foundation.
There is nothing novel about the trial court's approach. As our Supreme Court explained, "[U]ntil the evidence is actually offered, and the court is aware of its relevance in context, its probative value, and its potential for prejudice, matters related to the state of the evidence at the time an objection is made, the court cannot intelligently rule on admissibility." (People v. Jennings (1988) 46 Cal.3d 963, 975, fn. 3) Badillo's defense lawyer therefore had the responsibility to object if the prosecutor failed to provide a proper foundation for the gang evidence.
The prosecution's gang expert testified, without objection, that Badillo's gang had committed 20 gang-related murders, and the gang routinely used violence or the threat of violence to commit various crimes, including narcotic sales. The gang expert described the close connection between Badillo's gang and the Mexican Mafia, including the financial support Pico Rivera 13 sent to the Mexican Mafia in Pelican Bay Prison. The majority describes other inflammatory and prejudicial evidence the prosecutor elicited from the gang expert, although none of it had any bearing on whether Badillo or his gang harbored a racial bias toward African-Americans. Inexplicably, Badillo's lawyer failed to object. This had disastrous consequences for Badillo's defense. Based on the trial court's pretrial comments, it seems certain the court would have excluded most, if not all, the gang evidence that shed no light on whether the Pico Rivera 13 gang harbored a racial animus toward African-Americans or committed hate crimes against them.
Badillo denied pointing the gun and threatening Vernon Phillips, and to some extent the testimony of an independent witness, Sheena Pitts, supported his account. Badillo's credibility was crucial to his defense. It seems probable the inflammatory gang evidence influenced the jury to reject his testimony. The jury likely concluded that Badillo was the kind of person who would threaten Phillips with a gun because he belonged to a gang that had committed at least 20 murders, maintained ties to the Mexican Mafia, and its members, including Badillo, commonly carried guns to support their criminal endeavors. Indeed, it is doubtful a jury would believe anyone who fit this profile.
We cannot reach the issue of trial counsel's competence, however, because the matter was not raised on appeal. Badillo's remedy is a writ of habeas corpus.
ARONSON, J.