Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 07F01689
BUTZ, J.A jury convicted defendant William Thomas Coats of corporal injury of a cohabitant (Pen. Code, § 273.5, subd. (a)--count one), criminal threats (§ 422--count two), and false imprisonment (§ 236--count three). In a bifurcated proceeding, the jury found that defendant had three prior robbery convictions that were serious felonies (§ 667, subd. (a)) as well as strikes (§§ 667, subds. (b)-(i), 1170.12). Defendant’s Romero motion to strike two of the three prior convictions for sentencing purposes was denied. He was sentenced to state prison on count two for 25 years to life plus 15 years for the prior robbery convictions. Sentence on counts one and three was stayed pursuant to section 654.
Several documents in the record, including the abstract of judgment, appear to misspell defendant’s first name as “Williams.” We shall refer to defendant as “William,” as used in the notice of appeal and various other documents.
Undesignated statutory references are to the Penal Code.
Defendant’s oral motion for acquittal (§ 1118.1) of a charge of possession of an incendiary device (§ 453, subd. (a)) was granted.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
On appeal, defendant contends the evidence on counts one and two was insufficient and the evidence on count three showed only an attempt rather than a completed offense. He claims the denial of his Romero motion was an abuse of discretion, and his sentence violates the state and federal proscriptions of cruel and unusual punishment. We shall affirm the judgment.
FACTUAL BACKGROUND
Prosecution case-in-chief
Defendant and the victim, Tammy G., have known each other for 30 years. On New Year’s Eve 2006 and in early January 2007, they began a dating relationship that included sexual activity. For two weeks to a month immediately prior to February 19, 2007, they lived together in the Sacramento area.
The trial was in Sacramento County. Tammy testified that defendant “recently moved up here.” We reject defendant’s claim that “[t]he record reflects no evidence at all as to the supposed common dwelling location or type.” Tammy’s testimony supports an inference that the common dwelling was located in Sacramento County.
On the afternoon of February 19, the couple traveled through Fair Oaks in defendant’s car. Tammy was driving and defendant was in the front passenger seat. The couple, who were both from the San Francisco Bay Area, began arguing because defendant wanted Tammy to drive him to Redwood City but she did not want to do so. She testified that he “was acting kind of like a child,” and was having “a little tantrum fit.” Their argument “got a little bit out of hand,” and he hit her “[t]wo times” on the mouth or upper lip. After being struck, she wanted to get out of the car and tried to do so. However, she was unfamiliar with the car and did not know how to unlock the door.
Tammy remembered little about the incident, which had occurred nine months prior to her testimony. She did not recall defendant doing anything to prevent her from unlocking the door. She recalled a male approaching the car window and asking if she needed help. She said, “yes, I need help. Please help me get out of this car.” The man tried to open the car but he could not do so. Tammy testified that following the man’s attempt, “everything just kind of like went blank.” She did not recall other people approaching the car. She did not recall defendant pouring fingernail polish remover and rubbing alcohol on her clothing; nor did she recall telling a police officer that he had done so. She did not remember defendant stating that he “was going to light [her] on fire and kill [her]”; nor did she remember telling an officer that he had said so. However, she did remember that an officer had “forced” her into an ambulance that took her to a hospital where she refused treatment. Shown photographs of her injuries that had been taken shortly after the incident, Tammy testified that, other than “two little tiny cuts” on the top of her lips, the injuries depicted could have been preexisting because she “was drinking” and thus “fall[s] down a lot.”
Sacramento County Sheriff’s Deputy Jarred Hailey testified that he responded to a disturbance call and found Tammy in an ambulance with facial injuries. Her face was swollen and bruised, and she was bleeding from her mouth and nose. Hailey questioned Tammy but she was uncooperative and reluctant to answer any of his questions.
Eventually, Tammy told Deputy Hailey that defendant had become very angry when she refused to drive him to Redwood City. As she drove down the street, he poured fingernail polish remover and rubbing alcohol on her clothing and told her he was going to “light her on fire” and “was going to kill her.” Defendant ignited a cigarette lighter, lit a piece of paper on fire and threw it in Tammy’s direction. After throwing the burning paper, defendant punched Tammy twice to the face and once to the back of the head, causing her to stop the car on the roadway. Several motorists and pedestrians appeared on the scene. Tammy tried to get out of the car but defendant stopped her and held onto her. Eventually, people broke out the passenger window and restrained defendant, allowing Tammy to escape.
John Hernandez testified that while he and his family were driving through Fair Oaks, the blue car ahead of them made several stops, reverse moves, and restarts. When Hernandez pulled up alongside the car at a stop sign, he could see defendant, who was sitting in the passenger seat, striking Tammy with the closed fist of his right hand, while he held her hair with his left hand. Hernandez parked his car and told his passenger to call “911.” Then he approached the passenger side of the blue car and told defendant to open the door; defendant did not respond and just kept on hitting Tammy. He appeared to be hitting her as hard as he could. She was crying and attempting to cover her face. Hernandez heard defendant tell Tammy, “I’m going to kill you.”
Hernandez testified that a person from another car approached the driver’s side window, tried to open the door, and evidently inquired if Tammy was okay. Hernandez heard Tammy say, “no, I’m not okay. I need help.”
Hernandez was convinced that “something was going to happen.” He again told defendant to open the door and warned that he would break the window if defendant did not comply. Defendant continued to hit Tammy, so Hernandez retrieved a baseball bat from his truck and broke the passenger window.
Stephen Miele, a telephone lineman who was working in the area, overheard commotion and hollering. He drove to the scene and arrived as Hernandez was removing the baseball bat from his truck.
At about this time, Courtney Wyrick and her boyfriend Randy Crawford noticed the commotion and stopped their car to help. Wyrick observed defendant hitting Tammy’s face repeatedly with a closed fist. Tammy was crying but not fighting back. Wyrick observed Tammy trying to unlock the car door and roll down her window. Defendant would roll the window back up and relock the door. Crawford saw defendant strike Tammy when she tried to unlock the door.
After Hernandez broke open the car’s front passenger window, Miele grabbed the hood of defendant’s sweatshirt and pulled him away from Tammy. Thus thwarted from hitting Tammy with his fists, defendant resorted to kicking her arms and face. Eventually, Crawford and Miele pulled defendant part way through the shattered window and pinned him with his arms behind his back. After Tammy managed to unlock the driver’s side door, Wyrick opened the door and helped Tammy get out of the car. Wyrick noticed that Tammy’s face was covered with blood and that she had purple bruises around her eyes. Wyrick tried to talk to Tammy but she was hysterical and trembling. Wyrick then returned to the driver’s side of the car to turn off its ignition. Defendant kicked her.
During the altercation Miele heard defendant say, “I’m going to kill her. Get your hands off of me. I’m going to kill her.” Crawford heard Tammy say, “help me, he’s going to kill me.”
Hernandez flagged down a passing fire truck. Defendant went limp and appeared to play dead when emergency personnel arrived. Defendant was removed from the car and placed on the asphalt. He resumed fighting, and it took six emergency personnel to hold him down. Eventually defendant was turned over to law enforcement.
Wyrick and Crawford both noticed that there was a very strong odor of an unknown substance in the interior of the blue car.
Crime scene investigators collected several items from the car’s interior including tissue paper, a partially burned tissue paper roll, empty bottles of fingernail polish remover and rubbing alcohol, and three cigarette lighters.
A Sacramento Metropolitan Fire District investigator took Tammy’s blouse and slacks into evidence. When the investigator first took possession of the clothes, he noted that they felt damp. The investigator testified that rubbing (isopropyl) alcohol and fingernail polish remover (acetone or ethyl acetate) are flammable liquids.
A state Department of Justice criminalist found residues of ethyl acetate and isopropyl alcohol on Tammy’s blouse.
Defense
The defense rested without presenting any evidence or testimony.
DISCUSSION
I. Evidence of Sustained Fear
Defendant contends his conviction for criminal threats (§ 422--count two) is not supported by sufficient evidence that Tammy was “in sustained fear” for her safety. The prosecutor theorized that defendant had threatened Tammy by stating that he would set her on fire and kill her. Defendant argues there was insufficient evidence that (1) these words caused Tammy to experience fear, and (2) her fear, if it existed, was sustained. We consider these claims in turn.
Section 422 provides in relevant part: “Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, . . . is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for . . . her own safety or for . . . her immediate family’s safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison.” (§ 422, 1st par.)
“‘To determine sufficiency of the evidence, we must inquire whether a rational trier of fact could find defendant guilty beyond a reasonable doubt. In this process we must view the evidence in the light most favorable to the judgment and presume in favor of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence. To be sufficient, evidence of each of the essential elements of the crime must be substantial and we must resolve the question of sufficiency in light of the record as a whole.’” (People v. Carpenter (1997) 15 Cal.4th 312, 387 (Carpenter), quoting People v. Johnson (1993) 6 Cal.4th 1, 38; see Jackson v. Virginia (1979) 443 U.S. 307, 317-320 [61 L.Ed.2d 560, 572-574].)
Defendant claims the evidence showed that Tammy “was not in fear that she was really going to be burned or killed.” We disagree. Witness Crawford testified that he heard Tammy say, “help me, he’s going to kill me.” The jury could reasonably deduce that, by invoking the prospect of being killed as justification for her request, Tammy demonstrated her fear that defendant would kill her. (Carpenter, supra, 15 Cal.4th at p. 387.)
Defendant also claims “whatever fear [Tammy] had was not sustained.” Again, we disagree. The evidence showed that Tammy was trapped in the car and repeatedly threatened, after first being doused with flammable liquids and then subjected to a beating. The period was sufficiently lengthy that bystanders who feared for her safety resorted to the extraordinary expedient of obtaining a baseball bat and breaking a car window to save Tammy’s life. Even after the window was broken, defendant continued to punch, and then kick, Tammy until he could be physically restrained. By now claiming that Tammy’s fear was not “sustained,” defendant seeks to benefit from her good fortune in being rescued from him. His argument evokes the classic example of chutzpah, the person who murders his father and mother and then asks for mercy on the ground he is an orphan. (County of Orange v. Rosales (2002) 99 Cal.App.4th 1214, 1217, fn. 1.)
In People v. Allen (1995) 33 Cal.App.4th 1149, on which defendant relies, the defendant pointed a gun at the victim and threatened the victim and her daughter before leaving the victim’s home. The victim was in fear for 15 minutes, until police arrived and took the defendant into custody. (Id. at p. 1151.) The court concluded, “Fifteen minutes of fear of a defendant who is armed, mobile, and at large, and who has threatened to kill the victim and her daughter, is more than sufficient to constitute ‘sustained’ fear for purposes of this element of section 422.” (Id. at p. 1156.)
In this case, the rescuers prevented defendant from fleeing the scene before the authorities arrived. They restrained him for, in Crawford’s estimation, “probably like 15, 15 minutes, somewhere around there.” Tammy did not know her rescuers or whether they would succeed at subduing the struggling defendant. The jury was not compelled to find that her expressed fear had dissipated once the lay rescuers commenced their struggle with defendant. Rather, they could deduce that her fear had transformed to fear of him escaping his captors and being at large. Nothing in People v. Allen, supra, 33 Cal.App.4th 1149 suggests the evidence of sustained fear was insufficient.
II. Evidence of Cohabitation
Defendant contends his conviction of corporal injury of a cohabitant (§ 273.5, subd. (a)--count one) is not supported by sufficient evidence that he and Tammy were cohabitants. We disagree.
Section 273.5, subdivision (a) provides: “Any person who willfully inflicts upon a person who is his . . . spouse, former spouse, cohabitant, former cohabitant, or the mother or father of his . . . child, corporal injury resulting in a traumatic condition, is guilty of a felony, and upon conviction thereof shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not more than one year, or by a fine of up to six thousand dollars ($6,000) or by both that fine and imprisonment.”
The record contains this exchange between the prosecutor and Tammy:
“Q. How do you know [defendant]?
“A. He’s been a long-time friend for 30 years and he was recently my boyfriend.
“Q. Okay. When did the two of you begin dating?
“A. It was--I think New Year’s Eve.
“Q. New Year’s Eve of 2007 [sic]?
“A. Yes.
“Q. And starting 2007?
“A. Yes. But he’s been a long-time friend of mine way before that.
“Q. Okay. And when the two of you started dating--when you say dating, was there some romantic interest?
“A. Yes.
“Q. And I don’t mean to get personal but there was some sexual interaction; is that fair?
“A. Yes.
“Q. Okay. Did the two of you also live together?
“A. For a short period of time, yes.
“Q. Can you tell us when that was?
“A. He recently moved up here and we only stayed with each other for maybe a couple of weeks maybe. A month. I think it was just maybe a couple of weeks.
“Q. Okay. But two weeks immediately prior to the incident in February?
“A. Yes.” (Italics added.)
The jury could conclude from this exchange that defendant lived with Tammy for the two weeks immediately prior to the present incident. (Carpenter, supra, 15 Cal.4th at p. 387.) The jury could deduce that he had moved “up here” to the Sacramento area and that their relationship included sexual intimacy. (Ibid.; People v. Silva (1994) 27 Cal.App.4th 1160, 1166, fn. 6.)
Overlooking this exchange, defendant argues: “The record reflects no evidence at all as to the supposed common dwelling location or type. That is because none can be designated as a common place of cohabitation. [Defendant] lived with his mother. [The victim] lived with her mother or elsewhere. They got together from time to time for sex and apparently a lot of drinking and arguments. They had only been dating since January 1st and the incident occurred on February 19th. They may have known each other for years but many people know other persons for years and yet they are not logically described as cohabitants, even if they regularly have sex.”
Defendant’s argument is based upon statements in the probation report. Thus, the report lists defendant’s “Residence Address” as an address in Redwood City, not the Sacramento area address of the victim. Under the heading “DEFENDANT’S STATEMENT,” the report notes that defendant “stated he left his home in Redwood City two days prior to the current offense without his medication.” Because these facts from the probation report were not presented to the jury, we do not consider them in evaluating the sufficiency of the evidence that was presented. (People v. Banuelos (2005) 130 Cal.App.4th 601, 607.)
Finally, defendant claims there was no evidence of a “substantial long-term cohabitancy” between himself and Tammy. He notes that “cohabiting” under section 273.5 has been construed to require a relationship “manifested, minimally, by permanence and sexual or amorous intimacy.” (People v. Holifield (1988) 205 Cal.App.3d 993, 1000, italics added; see People v. Silva, supra,27 Cal.App.4th at p. 1166, fn. 6.) But deeming the parties’ two-week-old relationship impermanent would effectively create a waiting period of unknown duration before the salutary protection of section 273.5 could attach. The Legislature specified no such period, and we find no indication that one was intended. Because no evidence suggested that the parties intended their relationship to be impermanent, even before the present crimes intervened, we cannot conclude the evidence of permanence was insufficient.
The court in People v. Moore (1996) 44 Cal.App.4th 1323 noted that the element of “permanence” refers only to the underlying “substantial relationship,” not to the actual living arrangement. (Id. at p. 1334.)
III. Evidence of a Completed False Imprisonment
Defendant contends the evidence on count three shows that he committed only an attempted false imprisonment and not the completed offense. He reasons that, although he may have attempted to falsely imprison Tammy, “he did not succeed. His attempt was curtailed by the people . . . who came to assist” her. In his view, “[t]his was but a fleeting restraint which failed.” We disagree.
“The crime of false imprisonment is defined by Penal Code section 236 as the ‘unlawful violation of the personal liberty of another.’ The tort is identically defined. [Citation.] As we recently formulated it, the tort consists of the ‘“nonconsensual, intentional confinement of a person, without lawful privilege, for an appreciable length of time, however short.”’ [Citation.] That length of time can be as brief as 15 minutes. [Citation.] Restraint may be effectuated by means of physical force [citation], threat of force or of arrest [citation], confinement by physical barriers [citation], or by means of any other form of unreasonable duress.” (Fermino v. Fedco, Inc. (1994) 7 Cal.4th 701, 715.)
In this case, Tammy remembered little about the incident and did not estimate the length of her captivity. But the jurors could reasonably deduce that it took an appreciable amount of time for Tammy to make several stops, reverse moves, and restarts of her car; for motorists and pedestrians to appear on the scene; for Hernandez to observe defendant striking Tammy with a closed fist; for Hernandez to approach the car and demand that defendant open the door; for another person to approach the driver’s side window, try to open the door, and evidently inquire if Tammy was okay; for Hernandez to again tell defendant to open the door and to warn defendant that he would break the window if defendant did not comply; for defendant to continue to hit Tammy; for Hernandez to retrieve a baseball bat and break the passenger window; for Miele to grab the hood of defendant’s sweatshirt and pull him away from Tammy; for Tammy to unlock the driver’s side door; and for Wyrick to open the door and get Tammy out of the car. (Fermino v. Fedco, Inc., supra, 7 Cal.4th at p. 715; Carpenter, supra, 15 Cal.4th at p. 387.)
Defendant’s only authority for his claim that the evidence was insufficient is People v. Andrade (2000) 79 Cal.App.4th 651, in which the issue of sufficiency of evidence was not considered or discussed. “A case is not authority for an issue neither raised nor considered.” (People v. Wells (1996) 12 Cal.4th 979, 984, fn. 4.) The only issue in Andrade was whether the trial court abused its discretion by granting the defendant a new trial. (Andrade, supra, at pp. 657-662.) The happenstance that the defendant had been convicted of attempted false imprisonment, based upon an altercation from which the victim had managed to free herself, is of no help to defendant here.
IV. Romero Motion
Defendant contends the trial court abused its discretion when it denied his Romero motion to strike two of his three prior convictions. We are not persuaded.
“In reviewing for abuse of discretion, we are guided by two fundamental precepts. First, ‘“[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, 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.”’ [Citations.] 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.’”’ [Citations.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.” (People v. Carmony (2004) 33 Cal.4th 367, 376-377 (Carmony).)
A prior serious felony conviction can be stricken only if the defendant falls “outside the . . . spirit” of the three strikes law. (People v. Williams (1998) 17 Cal.4th 148, 161 (Williams).) In making this decision, a 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.” (Ibid.)
Defendant claims he is outside the spirit of the three strikes law because “the present offense resulted in only minor injuries and the punishment for it is wholly disproportionate to the harm done.” He claims “the key” is to “look at what happened to [Tammy] and how she viewed the situation.” Thus, she sustained only minor cuts, did not want defendant punished, wanted him to come home, and generally treated the situation less seriously than those around her did. Defendant notes that his three prior strikes occurred in 1976, 1980, and 1985, and that there was “a span of more than 20 years during which no serious or violent felonies occurred.” Finally, defendant notes that he is in ill health, has Hepatitis C, and needs a transplant. We are not persuaded.
At trial, Tammy viewed the “nature and circumstances of [defendant’s] present felonies” very differently than the other prosecution witnesses. As the incident unfolded, Tammy had pleaded, “help me, he’s going to kill me.” The Attorney General notes “[o]ne has to genuinely wonder about” her fate had four bystanders not gotten involved. One must also wonder about her fate had defendant’s open lighter flame ignited (whether intentionally or inadvertently) one or both flammable liquids he had poured on her clothing. The liquids and flame, especially, distinguish this case from the “unfortunate” hits or slaps exchanged by people “who have no serious intent to injure each other.” The trial court commented: “[I] don’t take the present situation in terms of the conviction lightly. I think it’s quite serious.” We agree. The nature and circumstances of the present offenses do not suggest that defendant is outside the spirit of the three strikes scheme. (Williams, supra, 17 Cal.4th at p. 161.)
Defendant’s background includes a Youth Authority commitment for auto theft, a 1976 Youth Authority commitment for robbery at a restaurant (first strike), a 1978 conviction of carrying a concealed firearm with a prior felony conviction, a 1980 conviction of three counts of robbery at a bank (second strike), a 1980 conviction of two counts of robbery at service stations, a 1985 conviction of robbery at an ice cream parlor (third strike), a 1993 misdemeanor conviction for spousal abuse, a 1994 misdemeanor conviction for possession of narcotic paraphernalia, 1996 convictions of evading an officer and being under the influence of a controlled substance, and a 2004 conviction of being under the influence of a controlled substance. The present offenses occurred within three years of his last prior conviction and approximately 30 years after his juvenile adjudications. Defendant’s vaunted “span of more than 20 years during which no serious or violent felonies occurred” was filled with a 15-year prison sentence and four subsequent convictions. Nothing in defendant’s background, which consists largely of felony and misdemeanor convictions, suggests that he is somehow outside the spirit of the three strikes scheme. Rather, reasonable people could believe that defendant exemplifies the offender for whom the scheme was designed.
Following his lifetime of crime, there is little in defendant’s character suggesting any ability to conform his behavior to the requirements of law. He argues his prospects for completing his prison sentence are not great. As his trial counsel argued, defendant “is 50 years old. He’s in ill health. He has Hepatitis C . . . and apparently he’s waiting for a transplant of some sort.” But also “not great” is his prospect for conforming his behavior to legal requirements in less time than was meted out in the three strikes sentence.
The trial court’s decision is not so irrational or arbitrary that no reasonable person could agree with it. (Carmony, supra, 33 Cal.4th at pp. 376-377.) In fact, we think most reasonable people would agree. No abuse of discretion is shown.
V. Cruel and Unusual Punishment
Defendant lastly contends his sentence violates the federal and state proscriptions of cruel and unusual punishment. The contention has no merit.
Defendant’s trial counsel objected that “just warehousing this man for the rest of his life in state prison” was “an Eighth Amendment issue.”
A. Eighth Amendment
The Eighth Amendment to the United States Constitution prohibits cruel and unusual punishment, but strict proportionality between crime and punishment is not required. “‘Rather, [the Eighth Amendment] forbids only extreme sentences that are “grossly disproportionate” to the crime.’” (People v. Cartwright (1995) 39 Cal.App.4th 1123, 1135.)
The Supreme Court of the United States has upheld statutory schemes that result in life imprisonment for recidivists upon a third conviction for a nonviolent felony in the face of challenges that such sentences violate the federal constitutional prohibition against cruel and unusual punishment. (See Lockyer v. Andrade (2003) 538 U.S. 63 [155 L.Ed.2d 144] [two consecutive terms of 25 years to life for two separate thefts of approximately $150 worth of videotapes]; Ewing v. California (2003) 538 U.S. 11 [155 L.Ed.2d 108] [25-year-to-life sentence under three strikes law for theft of three golf clubs worth $399 each].)
Defendant’s present convictions include infliction of corporal injury on a cohabitant, a much more egregious offense than thefts of golf clubs or videotapes. If a sentence of 50 years to life for the latter does not violate the Eighth Amendment, then neither does a sentence of 40 years to life for present crimes including infliction of corporal injury.
In Ramirez v. Castro (9th Cir. 2004) 365 F.3d 755, on which defendant relies, the prior robberies were “nonviolent in nature. No weapons were involved in the offenses. The ‘force’ reported in these shoplifting crimes--the basis by which prosecutors could charge them as second-degree robberies--was a ‘minor injury’ caused when somebody else drove over the foot of a grocery store security guard, and that Ramirez pushed a K-Mart security guard out of his way as he fled the store.” (Id. at p. 768.)
Here, in contrast, in defendant’s first strike in 1976, he and two subjects robbed employees of a restaurant at gunpoint. In his second strike in 1980, defendant and his brother robbed a gas station employee “while threatening that they had a gun.” In his third strike in 1985, defendant “opened his jacket and displayed a hand grenade.” Thus, weapons were involved in all three of defendant’s strike priors. We have already rejected defendant’s attempt to minimize the nature of his present offenses. His reliance on Ramirez is misplaced.
B. California Constitution
“[I]n California a punishment may violate [California Constitution, article I, section 6] if, although not cruel or unusual in its method, it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.” (In re Lynch (1972) 8 Cal.3d 410, 424.) We consider three areas of focus for assessing disproportionality: (1) an examination of the nature of the offense and the offender; (2) a comparison of the sentence with punishments for different offenses in the same jurisdiction; and (3) a comparison of the sentence with punishments for the same offense in other jurisdictions. (Id. at pp. 425-427.) Defendant’s argument is confined to the first two areas.
In part IV, ante, we considered these offenses and this offender at length. The witnesses, and the trial court, uniformly rejected the victim’s trial testimony regarding the severity of the offenses, on which defendant’s present argument relies. The 50-year-old recidivist offender is a stark contrast to the immature youth considered in People v. Dillon (1983) 34 Cal.3d 441. Our examination of the offense and offender does not suggest that defendant’s sentence shocks the conscience or offends fundamental notions of human dignity. (In re Lynch, supra, 8 Cal.3d at p. 424.)
Defendant notes that he “would be nearly 90 years old before he could be considered for parole. This is effectively a sentence of life without parole.” But, for present purposes, he is indistinguishable from any other third strike offender. “[W]hen a defendant under an indeterminate sentence challenges that sentence as cruel or unusual punishment in violation of the California Constitution, the test is whether the maximum term of imprisonment permitted by the statute punishing his offense exceeds the constitutional limit.” (In re Lynch, supra, 8 Cal.3d at p. 419.) Thus in every third strike disproportionality analysis, the sentence being analyzed is imprisonment for life.
Regarding punishments for different offenses in California, defendant argues “[t]he punishment here is vastly greater than for many California offenses that involve serious harm to persons and/or property, ranging from robbery to burglary to aggravated assaults.” However, defendant is not being punished “merely on the basis of his current offense but on the basis of his recidivist behavior.” (People v. Kinsey (1995) 40 Cal.App.4th 1621, 1630.) He has not discussed the sentences the comparison offenses would garner if committed by a recidivist such as himself. Thus, defendant has not shown that his sentence is unconstitutionally disproportionate.
VI. Corrections to Abstract of Judgment
We note errors in the abstract of judgment. First, there are conflicting spellings of defendant’s first name in the record; namely, the use of “Williams” rather than “William” on the abstract appears to be incorrect. (See fn. 1, ante, p. 1.) Second, defendant was sentenced to state prison on count two for 25 years to life plus 15 years for the prior robbery convictions. Item 3 of the abstract correctly sets forth the three prior convictions and a five-year enhancement for each. However, the total for the three enhancements is set forth as one year five months, rather than 15 years. We will order the abstract corrected to reflect the proper spelling of defendant’s first name and 15 years for the enhancements.
DISPOSITION
The trial court is directed to prepare an amended abstract of judgment that reflects the correct spelling of defendant’s first name (see fn. 1, ante, p. 1) as well as the total of 15 years imposed for defendant’s three prior robbery convictions in item 3. A certified copy of the amended abstract shall be forwarded to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: BLEASE, Acting P. J., NICHOLSON, J.
In this case, there was no issue whether Tammy had been in sustained fear for a family member, as opposed to herself.