Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Los Angeles County Super. Ct. No. BA282866. Peter Espinoza, Judge.
Koryn & Koryn and Sylvia Koryn, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec and Alene M. Games, Deputy Attorneys General, for Plaintiff and Respondent.
CHAVEZ J.
Defendant Dimetirous Campbell appeals from a judgment entered after the jury found him guilty of count 1, robbery (Pen. Code, § 211); count 2, false imprisonment by violence (§ 236); count 3, assault by means likely to produce great bodily injury (§ 245, subd. (a)(1)); and count 4, commercial burglary (§ 459). The trial court found true the allegations that as to counts 1 through 4, defendant suffered two prior convictions within the meaning of sections 667, subdivisions (b) through (i) and 1170.12, subdivisions (a) through (d), and two prior serious convictions within the meaning of section 667, subdivision (a)(1).
All further statutory references are to the Penal Code unless otherwise indicated.
The trial court sentenced defendant to an indeterminate term of 35 years to life, consisting of a term of 25 years to life in count 1, plus two 5-year terms for the prior serious felony convictions. The sentences in counts 2, 3, and 4 were stayed pursuant to section 654.
CONTENTIONS
Defendant contends that: (1) the trial court failed to fully instruct the jury with respect to the definition of reasonable doubt in CALCRIM No. 220; (2) the trial court abused its discretion in denying his motion to strike his prior 1991 conviction; and (3) his sentence constitutes cruel and unusual punishment.
FACTS AND PROCEDURAL HISTORY
On April 7, 2005, at about 5:00 a.m., Seung Kim (Kim) was working at Ace Alarm Company in downtown Los Angeles. She saw defendant at the door through a security monitor in the back room. When she went to the door, defendant asked the price of an alarm. Kim told him to return when the business was open. Defendant grabbed the door, opened it, and Kim fell. Defendant repeatedly demanded money and grabbed Kim’s hair with one hand while he opened desk drawers with the other hand. Kim told defendant that there was no cash in the office, but that she had $20 in her purse in her car. She told defendant to take her keys. Defendant grabbed Kim by the neck and dragged her into the bathroom. She refused his order to take off her shirt so that she could not follow him, and resisted his efforts to push her into the bathroom. Defendant choked her with one hand while he punched her in the face with the other until she lost consciousness.
When Kim regained consciousness she realized that her shirt had been removed. From the monitor she saw defendant shut her car door and walk to the street. Kim called 911. Kim noticed that her lip, nose, and cheek were swollen and that her face was bloody. Kim checked her car and discovered that her purse was missing. Kim identified defendant as her assailant at a photographic lineup and at trial.
Videotapes from security cameras at the alarm company showing defendant at the door, pushing Kim down, grabbing her hair, and opening drawers were played for the jury.
At the sentencing hearing, the trial court denied defendant’s motion pursuant to section 1385 to strike a prior conviction in 1991 for robbery.
DISCUSSION
I. The omission by the trial court with respect to CALCRIM No. 220 was harmless error
Defendant contends that the trial court’s reading of an incomplete version of CALCRIM No. 220 prejudiced him and requires reversal. We disagree.
The People urge that appellant forfeited his claim of instructional error by failing to request a clarification. (People v. Guerra (2006) 37 Cal.4th 1067, 1138.) But, even in the absence of an objection, the defendant has a right to appellate review of any instruction that affects his or her substantial rights. (§ 1259; People v. Brown (2003) 31 Cal.4th 518, 539, fn. 7.)
An erroneous instruction requires reversal only when it appears that the error was likely to have misled the jury (Cal. Const., art. VI, § 13), or there was a reasonable probability that the defendant would have received a more favorable result if the jury had been instructed as asserted on appeal. (People v. Flood (1998) 18 Cal.4th 470, 490.) The defendant must demonstrate a reasonable likelihood that the jury understood the instruction in a manner that violated his constitutional rights. (People v. Andrade (2000) 85 Cal.App.4th 579, 585.) In making this determination we consider the specific language under challenge and, if necessary, the instructions as a whole. (Ibid.)
The trial court instructed the jury with CALCRIM No. 220, which instructs the jury regarding reasonable doubt as follows: “The fact that a criminal charge has been filed against the defendant is not evidence that the charge is true. You must not be biased against the defendant just because he has been arrested, charged with a crime, or brought to trial. [¶] A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove each element of a crime beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt. [¶] Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt.”
However, the trial court did not instruct the jury either orally or in writing with the last paragraph of CALCRIM No. 220, which provides: “In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty.”
Defendant urges that this omission could have prevented the jury from considering constitutionally relevant evidence, which lowered the People’s burden of proof. We conclude that the trial court’s omission did not cause prejudice to defendant because the instructions as a whole instructed the jury that the People had the burden of proving defendant’s guilt beyond a reasonable doubt based on the evidence presented in the case. According to defendant, the rationale behind the phrase “comparison and consideration of all the evidence” is to advise the jury that its conclusion must be based on the evidence in the case. (Victor v. Nebraska (1994) 511 U.S. 1, 9.)
We find that the jury was properly instructed with respect to the People’s burden of proof. The trial court instructed the jury with CALCRIM No. 222 that: “You must decide what the facts are in this case. You must use only the evidence that was presented in this courtroom . . . the sworn testimony of witnesses, the exhibits admitted into evidence, and anything else I told you to consider as evidence. . . .” The jury was also instructed with CALCRIM No. 224 that while the jury could rely on circumstantial evidence, it must be convinced that the People proved each fact essential to the conclusion beyond a reasonable doubt. The trial court also instructed the jury with CALCRIM No. 315 that “[t]he People have the burden of proving beyond a reasonable doubt that it was the defendant who committed the crime” and with CALCRIM No. 355 that defendant could “rely on the state of the evidence and argue that the People have failed to prove the charges beyond a reasonable doubt.” And, both the People and defense counsel urged in closing argument that the jury must consider the evidence and follow the law in determining whether defendant was guilty. Taking the instructions in context as a whole, the jury was properly instructed that it must rely on the evidence presented and that the People had the burden of proving the charges beyond a reasonable doubt.
Defendant also urges that “there [was] a reasonable likelihood the jurors in this case applied CALCRIM No. 220 in a way that prevented them from considering constitutionally relevant evidence concerning the lack of evidence in determining whether a reasonable doubt existed as to [defendant’s] guilt.” We have previously disposed of a similar argument in People v. Campos (2007) 156 Cal.App.4th 1228, 1237, where the defendant complained that the challenged paragraph precluded the jury’s consideration of lack of evidence. We held that CALCRIM No. 220 does not inform the jury that reasonable doubt must arise from the evidence. Rather, the jury was likely to understand that the determination of the defendant’s guilt beyond a reasonable doubt must be based on a review of the evidence presented. (Campos, supra, at p. 1238.)
Even though the challenged paragraph was omitted by the trial court here, the same reasoning applies. That is, in light of CALCRIM No. 220 and the instructions as a whole, the jury was likely to understand that its determination of the defendant’s guilt must be based on the evidence presented. We conclude that the trial court’s omission did not prejudice defendant.
II. The trial court did not abuse its discretion in refusing to strike defendant’s prior 1991 robbery conviction
Defendant contends that the trial court abused its discretion in refusing to strike his prior 1991 robbery conviction in the interest of justice. We disagree.
Pursuant to section 1385, the trial court may strike an enhancement in furtherance of justice. (§ 1385.) In considering whether to strike a prior conviction under the Three Strikes law, the trial 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 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. If it is striking or vacating an allegation or finding, it must set forth its reasons in an order entered on the minutes, and if it is reviewing the striking or vacating of such allegation or finding, it must pass on the reasons so set forth.” (People v. Williams (1998) 17 Cal.4th 148, 161.)
On appeal, defendant contends that the trial court abused its discretion in refusing to strike his 1991 conviction because the trial court relied on the circumstances of the current offense and did not rely on significant mitigating factors subsequent to the prior 1991 conviction. Defendant argues that the strike was remote in time; in the intervening years, he had accrued only one additional conviction; he had become a productive member of society and an asset to the community; and he maintained a job and had two children. He argues that the circumstances of the 1991 robbery conviction were not particularly aggravated because he was barely 18 years old at the time of the offense and he did not use a weapon in committing the robbery. Rather, he approached the victim in an alley, pushed him, and drove his car away.
We conclude, however, that the trial court did not abuse its discretion in refusing to strike defendant’s 1991 conviction because it considered defendant’s present and prior convictions, as well as his background, character and prospects. The trial court noted that the decision was a difficult one to make recognizing that defendant had experienced an extremely difficult childhood because he was raised by a drug-addicted mother in a violent environment. The trial court took into consideration defense counsel’s argument that defendant did not use a weapon in the commission of the 1991 robbery and had no history of using drugs or committing petty theft, as well as the People’s argument that after receiving a nine-year prison term, defendant committed the current offense within a relatively short time of his release. The trial court concluded that defendant had not benefited from the structure he received while being incarcerated and his crimes were increasing in seriousness. The trial court noted that the second prior strike for a 1996 robbery conviction was relatively nonviolent because defendant rode his bicycle up to a drive-in window and demanded money. Had defendant committed a similar crime, the trial court stated “it would be one thing,” but the current crime was committed in an extremely violent manner on a victim who was particularly vulnerable because of her gender and size. The trial court also concluded that if the prior was stricken, defendant would be 54 when he finished his sentence, and the trial court was not convinced that he would not be a danger to society at that age.
We conclude that the trial court did not abuse its discretion in refusing to strike the prior 1991 robbery conviction pursuant to section 1385.
III. Defendant’s sentence does not constitute cruel or unusual punishment
Defendant contends that his sentence of 35 years to life for one count of robbery violated his federal and state constitutional right to be free from cruel and unusual punishment because the punishment was grossly disproportionate to the offense. We disagree.
“Three factors may be relevant to a determination of whether a sentence is so disproportionate that it violates the Eighth Amendment: ‘(i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions.’” (Ewing v. California (2003) 538 U.S. 11, 22 [sentence of 25 years to life for the offense of felony grand theft under the Three Strikes law is not grossly disproportionate and does not violate the Eighth Amendment’s prohibition on cruel and unusual punishment].) In examining the gravity of the sentence the court reviews the defendant’s history of recidivism. (Ewing, at p. 29.) Only extreme sentences that are grossly disproportionate to the crime are barred. (Id. at p. 23.)
To succeed on a challenge under the cruel or unusual punishment provision of the California Constitution, the defendant must show that the punishment is so disproportionate that it shocks the conscience and offends fundamental notions of human dignity. (In re Lynch (1972) 8 Cal.3d 410, 424, superseded by statute on other grounds as stated in People v. West (1999) 70 Cal.App.4th 248, 256.) The reviewing court: examines the nature of the offense and/or the offender, with particular regard to the degree of danger both present to society; compares the challenged punishment to punishments for more serious crimes in the same jurisdiction; and compares such challenged penalty with the punishments prescribed for the same offense in other jurisdictions having a similar constitutional provision. (In re Lynch, at pp. 425-427.)
Under both the federal and the state constitutions, defendant cannot show that his sentence of 35 years to life for robbery was grossly disproportionate to the crime. Defendant committed robberies in 1991, 1996, and 2005. While the first two robberies were apparently nonviolent, defendant’s use of violence escalated during the current crime, where he robbed a woman by beating and choking her into unconsciousness.
Defendant argues that pursuant to California law, his sentence is exceeded only by a sentence of life without the possibility of parole or death imposed for first degree murder, and is substantially greater than penalties for more serious or violent felonies such as second degree murder and voluntary manslaughter. But, as pointed out in People v. Romero (2002) 99 Cal.App.4th 1418, 1433, the defendant’s sentence under the Three Strikes law must be compared to that of other recidivists, not to defendants who had committed second degree murder. And, defendant has not shown that his sentence is disproportionate to those which other recidivists with similar criminal records would have received in California. (People v. Cooper (1996) 43 Cal.App.4th 815, 825 [imposition of a 25-year life term for a recidivist offender convicted of a nonviolent, nonserious felony (being an ex-felon in possession of a handgun, § 12021, subd. (a)) but with at least two prior convictions for violent or serious felonies is not grossly disproportionate to the crime].) Finally, defendant urges that his sentence constituted cruel and unusual punishment because, without naming those states, he claims that Three Strikes laws in other states are drafted more narrowly than California law and generally target serious violent offenders. The People, on the other hand, point to Alabama, Louisiana, Mississippi, and Delaware as states with sentences as strict as California’s for third strike convictions.
We disagree with defendant’s arguments. “While the courts have acknowledged the status of the Three Strikes law as ‘among the most extreme’ in the nation, that factor ‘does not compel the conclusion that it is unconstitutionally cruel or unusual.’ (People v. Martinez [(1999)] 71 Cal.App.4th 1502, 1516.) ‘California’s Three Strikes scheme is consistent with the nationwide pattern of substantially increasing sentences for habitual offenders.’ (People v. Ingram [(1995)] 40 Cal.App.4th 1397, 1416.) After undertaking a methodical comparison of repeat or habitual offender punishment schemes in other states, the court in People v. Martinez, supra, at page 1516, declared that California is not required ‘to march in lockstep with other states in fashioning a penal code. It does not require “conforming our Penal Code to the ‘majority rule’ or the least common denominator of penalties nationwide.” [Citation.] Otherwise, California could never take the toughest stance against repeat offenders or any other type of criminal conduct.’” (People v. Sullivan (2007) 151 Cal.App.4th 524, 572-573, fn. omitted.)
We conclude that defendant’s sentence does not constitute cruel or unusual punishment under the federal or state constitutions.
DISPOSITION
The judgment is affirmed.
We concur: DOI TODD Acting P. J., ASHMANN-GERST J.