Opinion
F060419 Kern Sup. Ct. No. MF009015A
10-17-2011
THE PEOPLE, Plaintiff and Respondent, v. JASON MICHAEL BULLARD, Defendant and Appellant.
Richard M. Doctoroff, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, William K. Kim, Leslie W. Westmoreland, and Sarah Jacobs, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Cory J. Woodward, Judge.
Richard M. Doctoroff, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, William K. Kim, Leslie W. Westmoreland, and Sarah Jacobs, Deputy Attorneys General, for Plaintiff and Respondent.
STATEMENT OF THE CASE
On April 13, 2010, the Kern County District Attorney filed an amended felony information in superior court charging appellant Jason Michael Bullard as follows: count 1 - assault with a deadly weapon, i.e., a motor vehicle (Pen. Code, § 245, subd. (a)(1)) and count 2 - assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)). The district attorney specially alleged a prior serious felony conviction (§ 667, subd. (a)), a prior "strike" conviction (§ 1170.12, subds. (a)-(e), § 667, subds. (c)-(j)), and two prior prison terms (§ 667.5, subd. (b)).
All further statutory citations are to the Penal Code unless otherwise indicated.
That same day, appellant pleaded not guilty to the substantive counts, denied the special allegations, and demanded a jury trial. The trial court granted appellant's request to bifurcate trial of the prior conviction allegations and jury trial commenced on the substantive counts.
On April 14, 2010, the jury returned verdicts finding appellant guilty as charged, and appellant admitted the truth of the special allegations.
On May 11, 2010, the court denied appellant probation and sentenced him to a total term of 14 years in state prison. The court imposed a term of six years (doubled middle term) on count 1, a consecutive term of two years (one-third of the middle term) on count 2, five years for the prior serious felony, and one year for one of the prior convictions. The court struck the second prior felony conviction, imposed a $200 restitution fine (§ 1202.4, subd. b)), imposed and suspended a second such fine pending successful completion of parole (§ 1202.45), and awarded 205 days of custody credits.
On May 27, 2010, appellant filed a timely notice of appeal.
STATEMENT OF FACTS
Testimony of Michael Ramsey
On the early afternoon of December 22, 2009, two men entered Mike's Automotive in Boron. One man was African American and the other was Caucasian. The pair asked the business owner, Michael Ramsey, about the price of a Cadillac battery. After Ramsey gave them a price quote, he said the two men "took off towards the gray van that was sitting out front." Ramsey said a third male, appellant Jason Michael Bullard, was standing next to the van. Ramsey's "service writer" had her own van parked outside the business. According to Ramsey, she saw appellant duck down and then reappear with a license plate that appeared to come from her own van.
Ramsey went outside and saw appellant and the two men drive away in the gray van. The license plate on the back of the service writer's van was missing. Ramsey saw appellant get into the driver's seat of the gray van before it departed. Ramsey got into his blue 2001 Dodge Dakota pickup truck to chase after the van and called the police. He recalled telling the dispatch operator, "[W]e was in pursuit of a van that stole a license plate from my shop ...." Ramsey's customer, Richard Heltsley, accompanied Ramsey in the pickup.
Ramsey caught up with the van at the railroad tracks on Twenty Mule Team Road and honked his pickup horn several times, but the van sped away. Ramsey said that after he honked his horn, he saw appellant look in the mirror of the van. Ramsey testified, "[W]henever he seen the blue Dakota pickup, that's when he jammed the van to the floor to try to get away from me." He also testified, "[W]henever he [appellant] looked in the mirror, then the van started pulling away from me, you know, it was obvious that he just stuck it to the floor." As to the speed of the vehicles, Ramsey said, "I think whenever we [were] running up the side of the railroads our speed got up to somewheres around 80, 90 miles an hour, possibly 100. I wasn't paying that much attention to the speedometer, but through town it was probably 45 to 50, at least."
Ramsey and Heltsley followed the van to a dead-end on a two-lane service road. The van reached the dead-end and turned around. Ramsey parked his truck away from the van. The truck was located partly on the roadway and partly on dirt. Ramsey and Heltsley stood in front of the pickup truck, with Ramsey on the driver's side and Heltsley on the passenger's side. The van began to proceed directly at Ramsey and Heltsley. Ramsey looked through the windshield of the van and saw appellant at the wheel. Appellant pointed the van at Heltsley. Both Ramsey and Heltsley jumped out of the way. The van struck the front fender of the passenger side of Ramsey's truck and tore off the front bumper, headlights, and turn signals. The bumper flew between 25 and 30 yards down the road. When asked if he would have been hurt had he stayed in place, Ramsey testified, "Probably not, but as fast as he was going I figured I would be, because I thought the front of the truck was going to sling around."
Ramsey said he fell when he jumped out of the way. He stood up and he and Heltsley got back into the pickup truck to pursue the fleeing van. Ramsey and Heltsley chased the van through the community of Boron. The van proceeded through residential yards and the parking lot of the Circle K store. Ramsey's friends saw the damage to his pickup truck and joined in the pursuit. The pursuers included teacher Derrick English, water district employees Pete and Eric Lopez, and antique car collector Ed Burke. The pursuers found the van abandoned "in a lot on the other side of the railroad's tracks on the first street." The license plate was never located.
Ramsey spoke with Kern County Sheriff's Deputy Alicia Jackson and said "Jason" was the driver of the van. Ramsey also testified, "... I told her [Deputy Jackson] that they had stole the plate off the van at the shop, and we commenced to following them and we ended up on the side street over there. They hit my pickup; tore my pickup up; and we chased them until we ended up where the van was abandoned." Ramsey said he knew appellant from "around town" and noted they were customers of the same liquor store. Ramsey also said that a man named Victor owned the gray van before selling it to appellant. Victor had done work at Ramsey's home and appellant assisted Victor in that work. Ramsey characterized appellant as "an acquaintance."
When Ramsey spoke with Deputy Jackson, he described the trio that fled with the license plate as "[O]ne white guy with corn rows in his hair, rotten teeth. There was a black skinny kid and then Jason." Ramsey characterized the "corn rows" as "braids." Ramsey said he could tell the difference between appellant and "the black skinny kid" because he had seen appellant previously. When asked if he had seen appellant's companions from the December 22 incident, Ramsey testified, "I seen them yesterday in the courtroom - not in the courtroom -out in the lobby yesterday." Ramsey described them as "a white male, bald-headed, and a slim black man." He said they were the same two people who entered his shop on December 22.
Deputy Jackson showed Ramsey a photographic lineup consisting of six pictures. However, Ramsey was not able to pick out the photo of the person he had seen driving the vehicle that had come towards him. Ramsey said he asked Deputy Jackson the age of the photographs and she advised him the pictures were two and one-half years old. He said none of the photographs looked like appellant and added, "You know, people change in two, two and-a-half years." Ramsey said he told the deputy, "I am not going to try to pick him out of a lineup, because none of these look like him." Ramsey said he still knew that appellant was the person he had seen outside his business on December 22. Ramsey testified he did not have any doubt that appellant was driving the gray van that day. Ramsey said he knew appellant from around town, had periodically seen appellant at the liquor store, had spoken with appellant, and that appellant had been to his home. Ramsey said a week before the incident he had a telephone conversation with appellant concerning a transmission for the van. Ramsey recognized appellant's voice on the phone because of his prior dealings with him.
On cross-examination, Ramsey confirmed he had known appellant from around town, had seen him at a liquor store, had seen him periodically, had said hello to him, and had opened his home to him. When asked why he could not pick appellant's face from the photo lineup, Ramsey said, "I didn't think any of them looked like him." Testimony of Richard Heltsley
Richard Heltsley testified he was not an employee of Mike's Automotive but was working on his own car in Ramsey's building on December 22, 2009. Somebody hollered, "Richard, somebody stole your license plate." Although Heltsley ultimately determined his license plate was not stolen, he got into Ramsey's pickup truck and followed a gray van. The pursuit led to a frontage road with a dead-end. Heltsley said Ramsey parked halfway down the dead-end road, he and Ramsey got out of the truck, and Heltsley held up a hand to try to wave down the van. Heltsley originally thought there was only one person in the van, and he could not say whether or not appellant was that person. He said there was glare from the sun on the van windshield, and he could not see through clearly enough to identify the driver.
Heltsley said he was standing on the front right-hand corner of the truck when the van began to proceed toward him. Heltsley testified, "[H]e was in the other lane and he turned [the] wheels just a little bit coming right at me and the truck." Heltsley said the van driver "turned the vehicle at me and tried to run me over." Heltsley jumped out of the way and the van tore off the bumper, headlights, and "whole front of the truck." The "whole front" included the grill, bumpers, and plastic components below the grill and bumpers. Heltsley said he was scared and testified, "He [appellant] would have run over and killed me," had he not jumped out of the way of the van. Heltsley noted, "I really don't know if he was trying to hit me or just tear the truck all to pieces, so we couldn't chase him"
The van left the scene and Ramsey and Heltsley got back into the pickup truck and continued the pursuit. Heltsley explained, "Well, some other people in town seen [a] person driving real radical and he was going through yards, didn't care, running people off the road and everything and we los[t] sight of him for a while, because [w]e couldn't go through the yards and everything like he was doing, and so he just kept riding around and then other people seen him - what happened, too, and they started following him." Two acquaintances spoke to Heltsley and said appellant pulled the van into a vacant lot. These people also said appellant and two other males jumped the fence and went to their apartment.
Heltsley later told Deputy Jackson he was not sure who the van driver was because he did not get a good look at him. A week after the incident, Heltsley met with Deputy Jackson and examined a lineup of six photographs. Heltsley picked out picture number four from the photographic lineup as the person who drove the van. Appellant's photograph was actually in the fifth position. Heltsley said he advised Deputy Jackson he was unsure of his identification and explained at trial, "... I had maybe just [a] short period of time-maybe half a second, and I never seen the man before. All I [had] seen was two eyes really and [I] told her that." Heltsley testified that while he was standing next to Ramsey's pickup on the frontage road he "didn't have the slightest idea who he [the van driver] was." Testimony of Deputy Jackson
Deputy Alicia Jackson testified she received a dispatch about a stolen license plate on the afternoon of December 22, 2009. As she drove to Mike's Automotive, the circumstances changed and she received word a suspect had rammed his vehicle into another vehicle. She proceeded to the intersection of Jesse and Nancy Streets in Boron and met with Ramsey and Heltsley. She described Ramsey as "[p]retty shaken." Ramsey said someone named "Snake," also known as Jason, had rammed his Dodge truck with a gray Dodge van. He described "Snake" as a short, stocky black male. Heltsley gave her similar information. Deputy Jackson said the two men were located about one-half block away from the van. The van was in a field. Jackson testified she searched the van to make sure no one was inside.
Deputy Jackson said she knew appellant from prior dealings. When Ramsey said someone named Jason (or "Snake") had rammed his vehicle, the name and description rang a bell with Deputy Jackson. Jackson knew where appellant lived from her prior contacts with him. She went to his home and spoke with his wife, Melinda McCurdy. Jackson also knew McCurdy from prior contacts. Jackson told her that appellant was believed to have been involved in a vehicular incident. She described the van as a gray, Dodge van and said it was "currently sitting in the field, which may be a block away from her house." Jackson testified that McCurdy seemed to recognize the description of the vehicle. Jackson told McCurdy the gray van "was currently up in a field near the residence, and that we were getting ready to tow the vehicle."
During the investigation of the case, Deputy Jackson obtained a videotape from Crane Market in Boron, which depicted appellant with the van on December 22, 2009, prior to the incident. On December 29, 2009, appellant contacted Deputy Jackson at the Sheriff's Department Mojave substation and asked to speak with her. Jackson read appellant his Miranda rights, and he agreed to speak with her. Appellant said that law enforcement officers had arrested the wrong person because he was not in the van on December 22, 2009, and that someone named Billy was the actual driver. Bullard also told Jackson that someone named Israel "Izzy" Lucas was with Billy in the van that day. Jackson said a picture of Izzy Lucas was not included in the photo lineup.
Miranda v. Arizona (1966) 384 U.S. 436
Although Jackson acknowledged certain discrepancies between Ramsey's testimony and details in her report, she said Ramsey was "very certain" about the identity of the van driver and gave her a name and a description of him.
Defense Evidence
Appellant did not present any documentary or testimonial evidence but chose to rely on the state of the prosecution evidence.
DISCUSSION
I. THERE WAS SUFFICIENT EVIDENCE TO CONVICT APPELLANT OF ASSAULT WITH A DEADLY WEAPON (PEN. CODE, § 245, SUBD. (A)(1)).
Appellant contends there was insufficient evidence to support his conviction for aggravated assault with a deadly weapon as charged in count 1.
A. Specific Contention
Appellant argues:
"Michael Ramsey testified that even if it hadn't moved out of the way, the van would not have hit him. In answer to the prosecutor's question, 'Now if you hadn't jumped out of the way, would you have gotten hurt,' Ramsey answered, 'Probably not,...' [Citation.] On cross-examination, Ramsey denied that the car came straight at him. [Citation.]
"Ramsey's trial testimony is entirely consistent with his testimony at the preliminary hearing, where he testified that the van was aimed at Richard Heltsley and not Ramsey. [Citation.] Heltsley's trial testimony also confirmed that the van was aimed at Heltsley, not Ramsey. [Citation.] [¶] ... [¶]
"Given Ramsey's unwavering testimony, appellant's alleged action could not have resulted in the application of force to Ramsey, and that necessary element remains unproven. Consequently, no assault of any kind occurred in relation to count 1, the assault with a deadly weapon charge relating to Ramsey."
B. The Information
Count 1 of the amended information alleged:
" ... On or about December 22, 2009, Jason Michael Bullard, did willfully and unlawfully commit an assault upon Mike Ramsey, with a deadly weapon, to wit: a motor vehicle, in violation of Penal Code section 245(a)(1), a felony. It is further alleged that this offense is a serious felony within the meaning of Penal Code section 1192.7(c)."
C. The Instructions
The court instructed the jury in CALCRIM No. 875 [assault with a deadly weapon or force likely to produce great bodily injury (Pen. Code, §§ 240, 245, subds. (a)(1)-(3) & (b)], in pertinent part, as follows:
"The defendant is charged in Counts I and II with assault with a deadly weapon and assault with force likely to produce great bodily injury, in violation of Penal Code Section 245. To prove that the defendant is guilty of this crime, the People must prove as to Count I: The defendant did an act with a deadly weapon; two, that the defendant did those acts willfully; three, when the defendant acted, he was aware of facts that would lead a reasonable person to realize that his acts [sic] by its nature would directly and probably result in the application of force to someone; and four, when the defendant acted, he had the present ability to apply force likely to produce great bodily injury. [¶] ... [¶]
"Someone commits an act willfully when he or she does it willingly or on purpose. It does not require that he or she intend to break the law, hurt someone else, or gain any advantage.
"The terms application of force and apply force mean to touch in a harmful or offensive manner. The slightest touching can be enough, if it is done in a rude or angry way. Making contact with another person, including through his or her clothing is enough. The touching does not have to cause pain or injury of any kind.
"The touching can be done indirectly by causing an object or someone else to touch the person.
"The People are not required to prove that the defendant actually touched someone. The People are not required to prove that the defendant actually intended to use force against someone when he acted.
"No one needs to actually have been injured by the defendant's act. But if someone was injured, you may consider that fact along with all the other evidence in deciding whether the defendant committed an assault, and if so, what kind of assault it was.
"Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.
"A deadly weapon is any object, instrument, or weapon that is inherently deadly or dangerous or one that is used in such a way that it is capable of causing and likely to cause death or great bodily injury."
D. Law Governing Sufficiency of Evidence
In reviewing a conviction for assault, the Supreme Court has stated the applicable standard for assessing the sufficiency of evidence:
"In assessing a claim of insufficiency of evidence, the reviewing court's task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence - that is, evidence that is reasonable, credible, and of solid value - such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578 ....) The federal standard of review is to the same effect: Under principles of federal due process, review for sufficiency of evidence entails not the determination whether the reviewing court itself believes the evidence at trial establishes guilt beyond a reasonable doubt, but, instead, whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 317-320 ....) The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence. (People v. Stanley (1995) 10 Cal.4th 764, 792 ....) ' "Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court[,] which must be convinced of the defendant's guilt beyond a reasonable doubt. ' "If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment." ' [Citations.]" ' (Id. at pp. 792-793.)" (People v. Rodriguez (1999) 20 Cal.4th 1, 11.)
E. Analysis
Appellant contends: "With Ramsey testifying that the car probably would not have hit him even if he did not move, that evidentiary requirement [of the application of force to Ramsey] was not satisfied. Speeding by someone but not directly at them and even hitting one's pickup may be scary, but it is not assault."
The ramming of Ramsey's Dodge pickup truck occurred on a two-lane frontage road that terminated in a cul-de-sac or dead-end. Ramsey and Heltsley stood in front of the parked pickup truck, with Ramsey at the driver's side and Heltsley on the passenger side. Heltsley initially testified the van "was going straight." Heltsley then explained appellant "was in the other lane and he turned [the] wheels just [a] little bit coming right at me and the truck." Heltsley indicated the van went out of its way to come toward the truck. Ramsey said both he and Heltsley jumped out of the way as the van approached his pickup truck. Ramsey explained, "I jumped, too, because I figured the front of the truck was going to sling around and hit me." Ramsey initially testified he probably would have not been hurt had he stood his ground. Then Ramsey observed, "[A]s fast as he [appellant] was going I figured I would be, because I thought the front of the truck was going to sling around." In Ramsey's estimation, the bumper of his truck "flew approximately 25 to 30 yards down the highway or down the road."
Viewing the facts in the light most favorable to the judgment, we find that the appellant's acts, by their nature, would directly and probably result in the application of force to Ramsey. (CALCRIM No. 875) At one point in his testimony, Ramsey said he did not think he would have been hurt had he not jumped out of the way. At another point in his testimony, however, Ramsey figured he would be hurt because he thought "the front of the truck was going to sling around." We do not reweigh the evidence; the credibility of witnesses and the weight to be accorded to the evidence are matters exclusively within the province of the trier of fact. We will not reverse unless it clearly appears that on no hypothesis whatever is there sufficient substantial evidence to support the jury's verdict. (People v. Upsher (2007) 155 Cal.App.4th 1311, 1322.) Ramsey's testimony supplied a substantial factual basis for a guilty verdict on count 1, and reversal is not required.
II. APPELLANT WAS NOT DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS TRIAL ATTORNEY FAILED TO PRODUCE AN IDENTIFICATION EXPERT TO CHALLENGE RAMSEY'S EYEWITNESS IDENTIFICATION
Appellant contends his trial counsel was ineffective because he failed to produce an expert to challenge Ramsey's eyewitness identification. Appellant argues:
"Ramsey claimed to know appellant 'from around town.' He named appellant to the deputy sheriff as the driver of the van which he chased and identified him at the preliminary hearing and at trial. Yet Ramsey did not name appellant when he called 911 and was unable to identify appellant when Dep. Jackson had him view a photographic lineup a week after the chase. [Citations.] Heltsley was unable to identify appellant as the driver either at a photographic lineup or when he testified at trial. [Citations.] Given the shortcomings of the identification of appellant as the driver and the fact that Izzy Lucas, a similar appearing black man, was in the van, Ramsey could have confused him with appellant. Compare People's Exhibit 1, photograph No. 5, showing appellant, with Defense Exhibit A depicting Lucas. [Citations.] Counsel should have employed an expert witness to challenge that suspect identification."Appellant maintains it is reasonably probable he would have achieved a more favorable result at trial had his counsel called an expert to challenge Ramsey, "the sole identification witness." He points out Ramsey's identification was questionable because he did not mention appellant's name during the 911 call and could not identify appellant's picture in a photographic lineup just one week after the incident.
Under both the Sixth Amendment to the United States Constitution and article I, section 15, of the California Constitution, a criminal defendant has a right to the effective assistance of counsel; that is, he has a right to " 'the reasonably competent assistance of an attorney acting as his diligent conscientious advocate.' [Citations.]" (People v. Ledesma (1987) 43 Cal.3d 171, 215 (Ledesma).) "The ultimate purpose of this right is to protect the defendant's fundamental right to a trial that is both fair in its conduct and reliable in its result. [Citations.]" (Ibid.)
A claim of ineffective assistance has two components: (1) the defendant must show counsel's performance was deficient, i.e., that it fell below an objective standard of reasonableness under prevailing professional norms; and (2) the defendant must establish prejudice as a result. (Ledesma, supra, 43 Cal.3d at pp. 216, 217.) "Unless a defendant establishes the contrary, we shall presume that 'counsel's performance fell within the wide range of professional competence and that counsel's actions and inactions can be explained as a matter of sound trial strategy.' [Citation.] If the record 'sheds no light on why counsel acted or failed to act in the manner challenged,' an appellate claim of ineffective assistance of counsel must be rejected 'unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.' [Citations.]" (People v. Ledesma (2006) 39 Cal.4th 641, 746.) To show prejudice, defendant must demonstrate there is a " 'reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.' [Citation.]" (Ibid.)
An attorney's exercise of discretion in making tactical decisions regarding trial strategy must be both reasonable and informed. An informed decision is one made on the basis of reasonable investigation. Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable. (In re Visciotti (1996) 14 Cal.4th 325, 348.) Whether to call certain witnesses is also a matter of trial tactics, unless the decision results from unreasonable failure to investigate. We cannot evaluate alleged deficiencies in a trial counsel's representation solely on the defendant's unsubstantiated speculation. (People v. Bolin (1998) 18 Cal.4th 297, 334.)
Although Ramsey did not give appellant's name to the 911 dispatcher and could not identify appellant's picture in the photographic lineup, he testified he knew appellant as an acquaintance in the town of Boron. Appellant and Ramsey frequented the same liquor store, appellant did work at Ramsey's home, Ramsey and appellant had a telephone conversation about a transmission issue just one week before the incident, Ramsey recognized appellant when he stood outside his business on December 22, 2009, and Ramsey had "no doubt" appellant was the driver of the gray van on that date. Ramsey frankly acknowledged he could not identify appellant's picture in the photographic lineup but explained he declined to make a selection when he learned the pictures were over two years old.
Although appellant contends the "identification was ripe for challenge," the record in the instant case does not affirmatively reflect the basis for counsel's failure to call an identification expert to testify on behalf of the defense. Reviewing courts will reverse convictions on the ground of inadequate counsel only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his act or omission. (People v. Zapien (1993) 4 Cal.4th 929, 980.) "Although courts have not always used the same language, the decisive consideration in determining the [necessity] of expert opinion evidence is whether the subject of inquiry is one of such common knowledge that [persons] of ordinary education could reach a conclusion as intelligently as the witness or whether, on the other hand, the matter is sufficiently beyond common experience that the opinion of an expert" is required. (People v. Cole (1956) 47 Cal.2d 99, 103.) Here, expert testimony was not required to assist the jury, as the failure to identify appellant's picture from the photo lineup was evident to the jury from the entirety of the testimony. Defense counsel was not deficient for not presenting an eyewitness identification expert.
Moreover, defense counsel reasonably might have declined to call an outside expert given the modest size of the community of Boron, Ramsey's strong familiarity with the community as a resident and local business owner, his acquaintanceship and multiple dealings with appellant within the community, and the certainty of his identification of appellant on the day of the incident.
III. THE FIVE-YEAR ENHANCEMENT FOR A PRIOR SERIOUS FELONY WAS NOT IMPROPERLY IMPOSED.
Appellant contends the five-year enhancement for a prior serious felony should be stricken if this court finds insufficient evidence to uphold count 1, the substantive count to which the enhancement relates.
In Issue I above, we found substantial evidence to support the judgment of conviction on count 1 and no further discussion of the related five-year enhancement is required.
IV. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION BY FAILING TO STRIKE A PRIOR FELONY CONVICTION FOR SUBSTANCE ABUSE.
Appellant contends the trial court abused its discretion by declining to exercise its discretion to strike his prior felony conviction (§ 1385) and that the resulting sentence amount to cruel and unusual punishment.
A. Procedural History
On May 11, 2010, appellant filed a motion to strike his prior felony robbery conviction (§ 211) pursuant to section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497. Appellant alleged the strike offense occurred 10 years earlier, when he was just 24 years of age. On the same date, the prosecution filed written opposition alleging appellant was well within the spirit of the Three Strikes law. The prosecution noted "defendant violated his parole after he was let out of prison on that [prior robbery] case in 2001 and has picked up 2 more felony convictions and misdemeanor convictions since then. During the majority of those years defendant has either been in prison, county jail on parole, or probation."
We note a defendant has no right to make a motion, and the trial court has no obligation to make a ruling, under section 1385. However, a defendant does have the right to invite the court to exercise its power by an application to strike a count or allegation of an accusatory pleading. (Polanski v. Superior Court (2009) 180 Cal.App.4th 507, 527.) Appellant's pleading bore the caption "motion to strike the strike prior in furtherance of justice" but the text of his pleading was phrased as a request to the trial court to dismiss the October 2000 robbery conviction.
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On the same date, the court conducted a hearing on the motion. Defense counsel argued: "Since that time [of the robbery prior] he has had two convictions, but they are possessory in nature; one possession of weapons and the other is a [conviction for] property damage, of a vandalism, no violence against any person. This particular crime that he has been convicted of, of course, deals with a person, but in the ten years previous to the conviction of a month ago, he had not had any of those as to a person." The prosecution argued that appellant had a significant criminal history both before and after the 2000 robbery conviction, that he had been "in and out of prison on parole violations and he was just released on parole in June of last year, 2009, and he continues to reoffend and his offense is becoming increasingly serious as he gets more convictions."
The court denied the motion to strike, ruling:
"Of course, having heard the testimony, this did involve a very violent offense, Mr. Bullard. There were two people that were - as Ms. Rogers [deputy district attorney] stated - put in serious danger. In fact, I recall Mr. Heltsley indicated had he not moved he would have been in between the two vehicles, so it was clearly a significant and dangerous offense to them and, of course, consequently to society in general. I do note that your prior conviction was - well, about ten years ago. He was only 24 when he did commit the prior robbery.
"However, as I reviewed the record, Mr. Bullard, with the exception of about four years, I believe, he has been in prison every year, except for about four of those and most importantly since 2003 there have been [a] significant number of parole violations - two parole violations. Since 2003, he has been in either of the local jail but primarily in state institution, and so consequently considering those factors the Court is denying the motion to strike the prior."
After the court ruled, appellant apologized to Ramsey in open court stating: "I had [a] real serious drug problem, you know, sorry for what I did, you know, but when I do get out, I will be leaving the county, you know, from what I did, but I am really sorry for what I did. I just had [a] dope problem."
B. Governing Law
A trial court has discretion to strike, at a defendant's request or on its own motion, prior felonies alleged for sentence-enhancement purposes. (People v. Romero, supra, 13 Cal.4th at pp. 529-530.) In deciding whether to strike a prior felony allegation, the court must "consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the [Three Strikes] scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (People v. Williams (1998) 17 Cal.4th 148, 161.) A trial court is not required to state its reasons for declining to exercise its discretion under section 1385. (People v. Gillispie (1997) 60 Cal.App.4th 429, 433.) Appellate courts do not have the power to substitute their discretion for that of the trial court or to direct the trial court to exercise its discretion to dismiss. (People v. Orabuena (2004) 116 Cal.App.4th 84, 100.) We review a trial court's decision to deny a motion to strike priors for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 374 (Carmony).) The court abuses its discretion if its consideration of the factors set forth in Williams " 'falls outside the bounds of reason " (People v. Williams, supra, 17 Cal.4th at p. 162.)
"The three strikes law not only establishes a sentencing norm, it carefully circumscribes the trial court's power to depart from this norm and requires the court to explicitly justify its decision to do so. In doing so, the law creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper." (Carmony, supra, 33 Cal.4th at p. 378.) Appellate courts must give great deference to discretionary trial court rulings and will disturb them only upon a clear showing of abuse which results in a manifest miscarriage of justice. (See People v. Jordan (1986) 42 Cal.3d 308, 316.) A trial court abuses its sentencing discretion only where the trial court was unaware of its discretion to strike, the court considered impermissible factors, or where the court's mechanical application of the statute yields "an 'arbitrary, capricious or patently absurd' result ...." (Carmony, supra, at pp. 376-378.) Section 1385 does not require that the trial court explain why it is exercising its discretion not to strike a prior. (Carmony, supra, at p. 376.) We can presume the trial court properly considered all the arguments made and rejected them all in light of its decision not to strike. (Ibid.)
C. Analysis
A trial court does not abuse its discretion under section 1385 unless its decision is so irrational or arbitrary that no reasonable person could agree with it. (Carmony, supra, 33 Cal.4th at p. 374.) Here, counsel for the defense and prosecution properly advised the court of the relevant factors governing a determination under section 1385, including the nature and circumstances of appellant's present and prior offenses; appellant's background, character, and prospects; appellant's criminal history; and the age of appellant's strike priors. The trial court read and considered the pleadings of the parties, heard the arguments of counsel, and made its ruling, particularly noting the violent nature of appellant's current offense, a criminal history which entailed significant periods of incarceration since 2003, and two parole violations. The prosecutor pointed out that appellant's most recent release on parole occurred in June 2009. Appellant's probation report indicated a parole date of June 5, 2009, and the instant offenses occurred a little more than six months later.
On appeal, appellant contends the court abused its discretion by failing to consider his history of "serious substance abuse," including the use of "marijuana at the age of twelve and alcohol at the age of thirteen before moving on to methamphetamine, cocaine, PCP, heroin, and ecstasy ...." These points were not mentioned in appellant's written motion to strike the strike or his counsel's argument at the hearing on the motion. However, they were set forth in detail in the probation officer's report, which the court read and considered on May 11, 2010. The court stated at the time of sentencing, "I know you mentioned that you have drugs, but, again, that isn't something that mitigates this kind of an action."
Given these facts and circumstances, we cannot conclude the trial court abused its discretion by finding appellant within the spirit of the Three Strikes law and denying his request to strike his prior strike conviction under section 1385.
Appellant lastly contends the trial court's failure to exercise its discretion resulted in cruel and unusual punishment under the Eighth Amendment. The determination of whether the punishment in a particular case violates the constitutional prohibition against disproportionately cruel or unusual punishment is fact specific and must be raised in the trial court. (People v. Kelley (1997) 52 Cal.App.4th 568, 583; People v. DeJesus (1995) 38 Cal.App.4th 1, 27; see also People v. Davis (1995) 10 Cal.4th 463, 507, fn. 8.) Here, the matter was not raised in the trial court and we may deem it waived on appeal. To the extent the issue has been somehow preserved, courts have held that punishment under Three Strikes and other recidivist statutes is not inherently cruel and unusual. (Ewing v. California (2003) 538 U.S. 11, 25-31; People v. Cartwright (1995) 39 Cal.App.4th 1123, 1134-1137.) The purpose of a recidivist statute is to deter repeat offenders and to segregate from the rest of society those who repeatedly commit serious criminal offenses. (Rummel v. Estelle (1980) 445 U.S. 263, 284-285.)
Appellant contends the circumstances of this case raise a strong inference of disproportionality. Appellant supports this claim by arguing that "[s]entencing a man in poor physical health who is seriously drug-dependent to a fourteen-year prison term for hitting a pickup truck" is "outrageously unjust." However, appellant's analysis is misguided. He ignores that he is being punished not only for his current offense, but also for his recidivism. Recidivism has long been recognized as a legitimate basis for increased punishment and California statutes imposing such increased punishment on habitual criminals have long withstood constitutional challenge. (Ewing v. California, supra, 538 U.S. at p. 25; People v. Cartwright, supra, 39 Cal. App.4th at pp. 1136-1137.) Appellant has failed to establish that his punishment as a recidivist offender is cruel and unusual. (See People v. Sullivan (2007) 151 Cal.App.4th 524, 568-573 and cases cited therein.)
DISPOSITION
The judgment is affirmed.
Poochigian, J.
WE CONCUR:
Dawson, Acting P.J.
Kane, J.