Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06F07358
SCOTLAND, P.J.
A jury convicted defendants George Edward Coles and Roosevelt Leon Cathey of first degree burglary and also convicted Coles of deterring an officer in the performance of his duties, receiving stolen property, being a convicted felon in possession of a firearm, and unlawfully possessing a butterfly knife and a firearm. Finding defendants each had two prior serious felony convictions, the court sentenced them under the “Three Strikes” law to prison terms of 35 years to life.
On appeal, Coles contends the trial court erred in allowing the introduction of hearsay testimony that a person reported to sheriff’s deputies that he saw a Black man running in the area of the burglary; the evidence is insufficient to support the receiving stolen property conviction; and imposition of concurrent sentences for receiving stolen property and being a felon in possession of a firearm violated Penal Code section 654. Both defendants claim their sentences of 35 years to life constitute cruel and/or unusual punishment, and the court abused its discretion when it refused to strike at least one of their prior convictions. And Cathey argues he received ineffective assistance of counsel when his trial attorney failed to seek a lesser sentence. We shall affirm the judgments.
FACTS
At about 9:00 a.m. on August 21, 2006, Michael Nicolaou heard his doorbell ring and his neighbor’s dogs barking. He walked out of his house and saw Coles and Cathey, who are African-American, standing in his neighbor’s driveway. Nicolaou asked, “Can I help you?” Cathey said they were looking for “Tiffany” to give them a ride to work, they had called Tiffany from a phone booth, and they were going to return to the phone booth and try again. Suspicious because he knew there were no phone booths in the area, Nicolaou called the sheriff’s department and provided descriptions of Coles and Cathey and the clothing they were wearing.
About 10:00 a.m. that morning, Nathan Schemel drove away from his residence and saw Coles and Cathey walking on the sidewalk in the direction of his home. At 10:45 a.m., in response to a call from the sheriff’s department, he returned to his home where he saw Coles and Cathey being detained. Schemel’s home had been broken into and ransacked.
Deputies Claudio Sotelo and Peter Cress had responded to Nicolaou’s report. Upon arriving at the location, they saw Cathey walking down the driveway of Schemel’s residence. Because Cathey matched a description provided by Nicolaou, the deputies asked Cathey why he was there. Cathey said that he was alone in the neighborhood trying to find a woman who had offered him a lawn mowing job and that he was going house to house to locate her because she had not given him an address.
Sotelo checked Schemel’s house, found the door was unlocked, detained Cathey, and called for additional deputies. A person then drove up and told the deputies that he had seen a Black man running on a street directly north of Schemel’s house. Sotelo directed Deputy Larry Canfield, a motorcycle officer, to try and locate the individual.
As Canfield drove through the neighborhood, he saw Coles running across a street. Using his PA system, Canfield ordered Coles to get on the ground. Coles lay face down on the grass of a residence but kept reaching into his right front pocket pants pocket with his hand. Although Canfield told Coles to remove his hand from his pocket, he would not comply.
Canfield tried to get physical control of Coles; a struggle ensued and Coles tried to grab Canfield’s weapon. During the struggle, Canfield saw a butterfly knife fall from Coles’s pants pocket. With the help of a bystander, Canfield subdued Coles and put him in a patrol car. A search of the area where the struggle occurred revealed a loaded .32 caliber semiautomatic firearm. The firearm had been stolen six days earlier during a residential burglary.
DISCUSSION
I
Coles contends he was denied his rights to confrontation, due process, and a fair trial when, over his objection, the trial court allowed Deputy Sotelo to testify that a witness said he saw a Black man running on a nearby street. We agree the testimony should not have been allowed, but conclude the error was harmless.
Specifically, Sotelo testified that while he and Deputy Cress were detaining Cathey outside of Schemel’s residence, a person drove up and contacted them. When Sotelo began to testify to the person’s statements, defense counsel objected on the grounds of hearsay, relevance, and Evidence Code section 352, which states: “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”
The People argued the anticipated testimony was not hearsay since it was being offered “to indicate the conduct that happened next,” namely, why Deputy Canfield drove off in search of the Black man.
Without stating any basis for its determination, the court overruled the objection. Sotelo then testified the person said he saw a Black man running on the street north of the deputies.
Coles contends the court’s ruling was error because even if the person’s statement was not hearsay, it was not relevant to any issue in the case.
The statement was not hearsay because it was not offered for the truth of the matter asserted (that a Black man was seen running a block north of Schemel’s residence); instead, it was offered for the purpose of showing why Deputy Canfield was searching for the suspect. (See People v. Scalzi (1981) 126 Cal.App.3d 901, 907 [where declarant’s statement imparting information is not offered for truth of the information but to show the hearer’s subsequent actions were in conformity with the information, the declarant’s statement is not hearsay].)
However, to be admissible the statement had to be relevant to an issue in the case. (Evid. Code, § 350 [“No evidence is admissible except relevant evidence”]; Evid. Code, § 210 [“‘Relevant evidence’ means evidence . . . having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action”].)
The reason why Deputy Canfield went in search of the suspect was neither disputed nor necessary to a determination of any issue in the case. Thus, the person’s statement was not relevant and should not have been allowed in evidence. Nevertheless, it was harmless because the same evidence was introduced by Canfield’s undisputed testimony that, while searching the area for a suspect described as a Black man wearing a light-colored shirt, he saw Coles (a Black male wearing a light-colored shirt) round a corner, look at Canfield, and start running. Canfield then described the stop of and the struggle with Coles, and Canfield’s observance of the butterfly knife and the firearm.
Because Canfield’s legally admissible testimony covered the same information as that given by the witness who contacted Sotelo at the scene, defendant was not prejudiced by Sotelo’s testimony about the witness’s statement. Thus, reversal is not required.
II
Coles argues the evidence is insufficient to support his conviction for receiving stolen property, the .32 caliber gun. He is wrong.
“‘The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]’” (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) One of the elements the People must prove in a prosecution for receiving stolen property is that the defendant knew the property was stolen. (Pen. Code, § 496, subd. (a); People v. Land (1994) 30 Cal.App.4th 220, 223.) “‘[P]ossession of stolen property, accompanied by no explanation, or an unsatisfactory explanation of the possession, or by suspicious circumstances, will justify an inference that the goods were received with knowledge that they had been stolen. The rule is generally applied where the accused is found in possession of the articles soon after they were stolen.’” (People v. McFarland (1962) 58 Cal.2d 748, 754.)
Coles claims there is insufficient evidence that he knew the gun was stolen. This is so, he argues, because the People did not prove how or when he came into possession of the gun. In his view, without such evidence “all the People proved was that [he] had the gun in his pocket before the tussle with the deputy.” We are not persuaded.
The gun in Coles’s possession had been stolen only six days earlier in a burglary of a home located in the same general area where Coles was captured by Deputy Canfield. All the evidence, including the testimony of homeowners Nicolaou and Schemel, was sufficient to show that Coles and Cathey were going door to door looking for homes to burglarize. Coles’s and Cathey’s weak excuses for their presence in the neighborhood and the lack of evidence of legal possession of the gun adequately gave rise to a reasonable inference that Coles knew the gun was stolen.
III
Coles claims that imposition of concurrent 25-year-to-life terms for receiving stolen property and being a felon possessing a firearm (the gun being common to each offense) violated Penal Code section 654’s prohibition against multiple punishment and, thus, one of the two sentences must be stayed. The contention fails.
Penal Code section 654 states: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.” (Further section references are to this code.)
In support of his contention, Coles relies exclusively on decisions setting forth the general rule that where a single criminal act or course of conduct has but one intent and objective and results in the commission of multiple offenses, section 654 precludes multiple punishment. (See, e.g., People v. Latimer (1993) 5 Cal.4th 1203, 1205 [punishment precluded for both rape and kidnapping to commit the rape]; People v. Siko (1988) 45 Cal.3d 820, 823 [punishment precluded for lewd conduct, rape and sodomy where the lewd conduct was based on the rape and sodomy].)
Concurrent sentencing is multiple punishment. (People v. Venegas (1970) 10 Cal.App.3d 814, 820-821.)
Coles argues that his receiving the gun was a single act or course of conduct meant to satisfy his sole “criminal intent and objective” to “possess the gun”; thus, section 654 precludes his being punished for both the receiving stolen property conviction and felon in possession of a firearm conviction.
An identical contention was rejected in People v. Taylor (1969) 2 Cal.App.3d 979, which held: “The neutral noncriminal common element of Taylor’s crimes was possession of the [firearm]. On the other hand the acts made punishable by the respective Penal Code sections were . . . receiving[] stolen property, and possession by [a convicted felon] of a concealable gun. The public insult done by Taylor, an ex-convict, in possessing the loaded revolver was compounded by the fact that the weapon was stolen, and known by him to be stolen. As to each offense Taylor had a separate and distinguishable mens rea. It does not seem reasonable that the state should be required to indulge in the fiction that but one crime had been committed.” (Id. at pp. 985-986, italics omitted.)
Coles urges us to revisit the holding in Taylor. However, the reasoning of Taylor was based on the California Supreme Court’s decision in In re Hayes (1969) 70 Cal.2d 604. Convicted of and punished for both driving with a suspended license and driving under the influence of alcohol (id. at p. 605), Hayes argued that section 654 prohibited his punishment for both offenses because it was his single act of driving that was the basis of his commission of both offenses. (Id. at pp. 606-610.) After observing that the single intent and objective rule was “of only limited utility” in Hayes’s circumstances (id. at p. 606), the Supreme Court summarized its reasons for rejecting Hayes’s argument. “[S]ection 654 . . . proscribes multiple punishment for a single ‘act or omission which is made punishable’ by different statutes, i.e., a single criminal act or omission. Since the mere act of driving is made punishable by no statute, it is not the type of act or omission referred to in section 654. The acts ‘made punishable’ which [Hayes] committed were (1) driving with a suspended license and (2) driving while intoxicated, two separate and distinct criminal acts; that they were committed simultaneously and that they share in common the neutral noncriminal act of driving does not render [Hayes’s] punishment for both crimes in conflict with Penal Code section 654.” (Id. at p. 611, italics in original.)
The same reasoning applies to Coles’s crimes of receiving stolen property and being a convicted felon in possession of a gun. In the abstract, possession of a gun like the one Coles had is not a crime. His conduct violated two different statutes only because of two separate circumstances which made his conduct more culpable than if only one circumstance was present: (1) Coles’s receipt of property he knew was stolen; and (2) his continuing possession of the firearm as a convicted felon. The statute making it unlawful to receive stolen property is an anti-theft law to deter persons from “provid[ing] . . . thieves with a market or depository for their loot.” (People v. Tatum (1962) 209 Cal.App.2d 179, 183.) The purpose of the law making it a crime for convicted felons to possess firearms “is to protect public welfare by precluding the possession of guns by those who are more likely to use them for improper purposes.” (People v. Pepper (1996) 41 Cal.App.4th 1029, 1037.) Because Coles’s conduct involved two distinct and separate criminal acts that made his conduct more culpable, section 654 does not prohibit punishing him for both offenses.
IV
According to Cathey, he received ineffective assistance of counsel during the sentencing hearing.
After denying Coles’s and Cathey’s motions to strike their respective prior serious felony convictions, the court noted that sentences of 25 years to life was “harsh” because “basically, there [was] no . . . physical violence” committed during the current offenses (overlooking Coles’s struggle with Deputy Canfield and attempt to grab the deputy’s weapon). The court then asked if the parties would “want to talk about that” to see if they could agree on a less severe sentence. When Coles’s counsel questioned whether the prosecutor had any authority to enter into such an agreement, the court replied: “Right. I would doubt that, too” “[i]n that the legislature has imposed this as a three strike case . . . .” Cathey’s counsel said nothing during this exchange, and the court then proceeded to sentence the defendants in accordance with the Three Strikes law.
Cathey argues his counsel’s silence and failure to act in response to what he describes as the trial court’s “offer to impose an agreed upon lesser sentence” constituted ineffective assistance of counsel. The contention fails.
To establish ineffective assistance of counsel, a defendant must show counsel’s act or omission was unreasonable and, but for the act or omission, the defendant would have obtained a more favorable result. (People v. Ledesma (1987) 43 Cal.3d 171, 216-218.)
“‘[A] court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed.’” (In re Alvernaz (1992) 2 Cal.4th 924, 945.)
Cathey argues: “In this case, [the People] can not [sic] prove a lack of prejudice. Indeed, [the People] never even attempt[] to do so, merely stating that [defendant] has not proven prejudice. However, this places the burden on the wrong party.” But it is Cathey’s appellate attorney who is wrong. The burden of establishing prejudice is on defendant. (People v. Ledesma, supra, 43 Cal.3d at pp. 217-218.) “Anyone who seeks on appeal to predicate a reversal of conviction on error must show that it was prejudicial. [Citation.]” (People v. Archerd (1970) 3 Cal.3d 615, 643.)
Cathey also wrongly faults the People for asserting that once the trial court denied Cathey’s motion to strike one of his prior serious felony convictions, the court was required to impose the sentence it did.
“‘[T]he Three Strikes initiative, as well as the legislative act embodying its terms, was intended to restrict courts’ discretion in sentencing repeat offenders.’ [Citation.] To achieve this end, ‘the Three Strikes law does not offer a discretionary sentencing choice, as do other sentencing laws, but establishes a sentencing requirement to be applied in every case where the defendant has at least one qualifying strike, unless the sentencing court “conclud[es] that an exception to the scheme should be made because, for articulable reasons which can withstand scrutiny for abuse, this defendant should be treated as though he actually fell outside the Three Strikes scheme.”’ [Citation.]” People v. Carmony (2004) 33 Cal.4th 367, 377.)
Having found that Cathey did not fall outside the Three Strikes scheme, the trial court had no choice but impose the sentences required by the Three Strikes law. That Cathey’s trial attorney did not argue otherwise was not ineffective assistance of counsel. (People v. Constancio (1974) 42 Cal.App.3d 533, 546 [“It is not incumbent upon trial counsel to advance meritless arguments or to undertake useless procedural challenges merely to create a record impregnable to assault for claimed inadequacy of counsel”].)
V
Coles and Cathey each contend their Three Strike sentences violated federal and state constitutional proscriptions against cruel and/or unusual punishment. We disagree.
The Eighth Amendment proscription against cruel and unusual punishment contains a narrow disproportionality principle which prohibits imposition of a sentence grossly disproportional to the severity of the crime. (People v. Meeks (2004) 123 Cal.App.4th 695, 707.) A proportionality analysis requires comparison of (1) the gravity of the offense committed and the harshness of the penalty, (2) the sentences imposed on others for the same crime in the same jurisdiction, and (3) the sentences imposed for the same crime in other jurisdictions. (Ibid.) Analyzing the gravity of the crime includes consideration of both the offense and the defendant’s criminal history. (Id. at p. 708.)
“[I]t is only in the rare case where a comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality that the second and third criteria come into play.” (People v. Meeks, supra, 123 Cal.App.4th at p. 707.) Coles and Cathey have not shown that their circumstances constitute a “rare case.”
Coles’s crimes committed in August 2006 were residential burglary, receiving stolen property, being a convicted felon in possession of a firearm, illegally possessing a butterfly knife and a firearm, and deterring an officer in the performance of his duties. He was on parole when he committed those crimes. His two prior serious felony convictions were for residential burglaries in 2000 and 2001.
In Coles’s view, his offenses “do[] not warrant a sentence that would keep [him] in prison for almost 30 years at a minimum.” Addressing only his latest conviction for burglary, he points out that “there was no violent encounter with a homeowner and property loss was minimal.” But residential burglary is a crime so fraught with potential violence that “[o]ur Supreme Court has characterized [it] as ‘. . . so dangerous’ as to call for enhanced punishment.” (People v. Estrada (1997) 57 Cal.App.4th 1270, 1281, citing People v. Jackson (1985) 37 Cal.3d 826, 832.) That Coles was armed with a loaded gun and a butterfly knife when he committed the burglary indicates his willingness to use deadly force if he encountered someone at the residence. Moreover, when he was caught by Deputy Canfield, Coles unsuccessfully tried to grab Canfield’s weapon and, while they struggled, Cole repeatedly tried to get something out of his pocket, undoubtedly either the knife or the gun, again showing his willingness to resort to violence.
In a word, Coles’s crimes were “serious,” justifying a serious penalty, particularly in light of his recidivism. Coles points out that his two prior serious felony convictions were the “minimal number” necessary for Three Strikes sentencing. However, that is not a mitigating circumstance. Given the nature of his crimes and his recidivism, Coles has failed to show that his sentence was grossly disproportionate. Thus, an intrastate or interstate comparison of offenses is not required.
As to the California Constitution’s prohibition against cruel or unusual punishment, which also requires a showing of gross disproportionality (In re Lynch (1972) 8 Cal.3d 410, 424), Coles asks us to apply his Eighth Amendment analysis. We have, and for the same reasons that we rejected his claim based on the federal Constitution, we reject his claim based on California’s Constitution.
Cathey’s crime was residential burglary, a dangerous felony (People v. Estrada, supra, 57 Cal.App.4th at p. 1281), committed with an accomplice who was armed with a loaded firearm and a knife. Cathey’s prior criminal record is significant. In December 1996, he was arrested after he and a companion broke into four vehicles; when he was arrested, Cathy was in possession of burglary tools, numerous items of stolen property, and rock cocaine. Convicted of possessing an illegal substance and two counts of misdemeanor burglary, he was placed on three years’ probation. In May 1998, he was arrested after he and a companion broke into a vehicle and took the stereo. He was convicted of felony second degree burglary and was placed on five years’ probation. In September 1998, he was convicted of felony second degree burglary and sentenced to state prison after breaking into two vehicles. In December 2001, Cathey forcibly entered a residence but fled when the alarm was activated; he was convicted of first degree burglary and sentenced to prison for four years. In or about November 2004, Cathey attempted to enter a residence through a window, but fled when he saw someone inside; he was convicted of attempted first degree burglary and was sentenced to prison for two years. He was paroled in June 2006 and committed the home burglary in this case two months later.
Cathey’s disproportionality argument is essentially that he never engaged in violence and tried to avoid violence by burglarizing only unoccupied residences or vehicles. Yet his record demonstrates Cathey is a career thief whose willingness to break into people’s homes poses a risk of violence. Gross disproportionality has not been shown, and his sentence is not cruel or unusual within the meaning of the United States and California Constitutions.
VI
Both Coles and Cathey contend the trial court’s denial of their motions to strike their prior serious felony convictions was an abuse of discretion. Not so.
In determining whether to strike prior serious felony convictions, the trial court “must consider whether, in light of the nature and circumstances of [the defendant’s] 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.” (People v. Williams (1998) 17 Cal.4th 148, 161.)
We review for abuse of discretion the trial court’s failure to dismiss or strike a prior serious felony. (People v. Carmony, supra, 33 Cal.4th at p. 376.) “[A] trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.” (Id. at p. 377.)
For the same reasons that Coles and Cathey cannot show that their sentences were disproportionate to their offenses, they fail to establish they are outside of the “spirit” of the Three Strikes law. The trial court’s decision was not irrational or arbitrary.
VII
Having found no error as claimed, we need not address Cathey’s claim of cumulative error requiring reversal.
DISPOSITION
The judgments are affirmed.
We concur: SIMS, J., RAYE, J.