Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. C154516
Jones, P.J.
A jury convicted appellant Anthony Driver of kidnapping (Pen. Code, § 207, subd. (a) (count 1)), making criminal threats (§ 422 (count 2)), and of willful infliction of corporal injury on a spouse (§ 273.5, subd. (a) (count 3)). The jury found that appellant used a deadly and dangerous weapon during the commission of counts 1 and 2 (§ 12022, subd. (b)(1)) and the trial court found that appellant had suffered three prior convictions. The court denied appellant’s Romero motion and sentenced him to 35 years to life in prison.
Unless otherwise noted, all further references are to the Penal Code.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 508 (Romero). In Romero, the California Supreme Court “‘held that a trial court may strike or vacate an allegation or finding under the Three Strikes law that a defendant has previously been convicted of a serious and/or violent felony, on its own motion, “in furtherance of justice” pursuant to . . . section 1385(a).’ [Citation.]” (People v. Carmony (2004) 33 Cal.4th 367, 373, quoting People v. Williams (1998) 17 Cal.4th 148, 158.) Section 1385, subdivision (a) provides in relevant part that “[t]he judge . . . may, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed.”
On appeal, appellant contends: (1) the court erred in denying his Batson/Wheeler motion; (2) the court abused its discretion by denying his Romero motion; and (3) his sentence violates the constitutional prohibition against cruel and unusual punishment. We affirm.
Batson v. Kentucky (1986) 476 U.S. 79, 95-96 (Batson); People v. Wheeler (1978) 22 Cal.3d 258, 276-277, disapproved on another ground in Johnson v. California (2005) 545 U.S. 162, 166-168.
FACTUAL AND PROCEDURAL BACKGROUND
Jury Selection
In his jury questionnaire, R.H. stated the following: he is a 57-year-old African-American who lives alone. He has three ex-wives. He spent almost four years in the Army and worked in the Alameda County Probation Department for several years. He began working for Lockheed Martin Space Systems Company in 1979 and is now a senior manager/manufacturing engineer there. His car was stolen and his home was burglarized. His brother was arrested for breaking and entering and the police were called when his sister had a disagreement with her boyfriend. He has served on two other juries — one for assault and another for drunk driving — and both reached a verdict. He also appeared in court for a traffic violation. In response to a question about his “feelings about our criminal justice system,” R.H. stated, “It is overcrowded. There is room for improvement. Day in [and] day out, it does pretty good. A better defense can be waged if you are financially able.”
R.H. was the 17th of 18 jurors to be questioned during voir dire. When the prosecutor questioned R.H., he observed that R.H. had “a couple of previous relationships that ended in divorce” and asked, “[Is] there anything about those that caused [you to] have feelings that might spill over into this case?” In response, R.H. stated, “No.” The prosecutor then questioned R.H. about his residential and employment history and his sister’s domestic dispute. R.H. stated that he did not personally observe the dispute. The prosecutor noted that R.H. had indicated on his juror questionnaire that the criminal “system is overcrowded.” The prosecutor stated, “It’s hard to argue with that.” Then the prosecutor noted that R.H. wrote on the questionnaire that there was room for improvement in the criminal justice system; the prosecutor asked, “How would you see the system improving?” R.H. responded, “I don’t have any solutions” and the prosecutor asked no further questions of him.
During defense counsel’s voir dire, R.H. stated that he had served on at least two juries that reached a verdict. When asked how he felt about being selected as a juror, R.H. stated, “Well, any time you are selected puts an imposition and disruption in your life, but I tend to do my part.” He also stated that he would be able to give appellant a fair trial.
After the first 18 prospective jurors were questioned by the court and counsel, defense counsel challenged several jurors for cause. The attorneys then exercised their peremptory challenges. The prosecutor passed. The defense excused a juror. The prosecutor passed for a second time. Defense counsel excused a juror. The prosecutor excused a juror, and defense counsel excused another juror. The prosecutor passed for a third time. Defense counsel excused a juror. When R.H. was seated, the prosecutor excused R.H. After the prosecutor excused R.H, defense counsel made a Batson/Wheeler motion. He argued that R.H., who was excused by the prosecutor, “was [an] African-American male.” The court concluded that counsel had made a prima facie case and noted that the burden “shifts to the District Attorney to show race neutral justifications or explanations.”
In response, the prosecutor stated, “My decision to kick [R.H.] and not allow him to sit on the jury was based upon the number of previous marriages that he’s had and three in total. He’s unique in this entire venire in terms of that, and I thought that that may cause his own past experience to spill over into this trial in a way that he would identify more with the defendant than is proper. He also indicated in one of his questions in his questionnaire — I believe [it’s] number 25 — his feeling that the system is overcrowded, and that there’s room for improvement. And I thought that he also expressed concern, but tried to dissuade me[,] that it was a problem with respect to the financial ability. That’s a common statement, but that was my secondary reason that I thought he had concerns with the way the criminal justice system worked. I recognized that and balanced that against his previous commitment to this process in which he served on three other previous juries and stated that he was a willing participant in this, but in the end I decided that I could not allow somebody who had had so many failed marriages to sit in this case where we had a failed marriage at issue on this case.”
Defense counsel disagreed with the prosecutor’s proffered justification and noted, “Obviously, the Court has a lot of discretion here, but given the panel that I see behind me, and given the chances of getting another African-American male on this panel, I think [it] is going to be very difficult to get a juror of [appellant’s] . . . peer group.” After hearing argument from defense counsel, the court denied the motion, stating, “I will find that the District Attorney’s reasons are race neutral, and I accept them as honest; that those are his reasons for exercising his peremptory challenge against [R.H.].”
Three members of the jury were African-American.
Trial Testimony
At trial, Mary Wright testified for the prosecution. She met appellant when she was 15. They dated for about five years and had a daughter. Nearly 30 years later, in 2002, she decided to “get back together” with appellant, so she moved to California and married him. She and appellant lived together in an apartment in Hayward with their seven or eight-year-old grandson.
By November 2005, Wright’s relationship with appellant soured. Appellant “voic[ed] his frustrations” about their relationship: he said he wanted Wright to spend more time with him. He also said he wanted to have “more sex.” At the end of the conversation, appellant punched Wright in the face with a closed fist and gave her a black eye. Wright moved out of the apartment the next day and took their grandson with her. After the incident, Wright maintained a “helpful relationship” with appellant, who did not work and walked with a cane. She helped him find a post office box, sell his car, obtain food, and charge his cell phone.
In July 2006, appellant confronted Wright at her job. He yelled at her to “give him his cell phone.” He was “upset [and] angry” and was “yelling and cursing and wanting his phone.” Wright complied. Appellant then walked over to one of Wright’s co-workers “and started a verbal confrontation with him.” Appellant threw his cane on the ground; then he took off his shirt and threw it to the ground. He started yelling at Wright’s co-worker and said, “Stay away from my wife.”
On September 1, 2006, Wright planned to meet appellant at a coffee shop and go to the social security office with him. Appellant arrived at the coffee shop almost two hours late. As Wright sat down in the front passenger seat of appellant’s car, appellant said, “‘I knew I would get my hands on you’” and then punched her in the face. Instead of driving to the social security office, appellant got on the freeway. While he was driving on the freeway, he used the back of his hand to punch Wright in the face “once or twice” more. With a screwdriver, he threatened Wright to try to get out of the car while it was moving and told her that he would stab her with the screwdriver if she tried to open the door. He also said, “I want you to jump out of the car, so you can get killed” and “I’ll stab you with this screwdriver.” He took her cell phone.
About 10 minutes later, appellant’s car began to overheat, prompting him to exit the freeway. He drove to an industrial area and continued to threaten Wright with the screwdriver. He tied her up using his shoelaces; then he got out of the car and added water to the radiator. Wright tried, unsuccessfully, to loosen the binds so that she could flee. After he added the water, appellant got back into the car, untied Wright, and drove to the Berkeley marina.
At the marina, appellant complained to Wright that “he lost everything” and that she “took everything away from him.” Wright tried to open the passenger door to escape; in response, appellant “exploded and attacked [her].” He “continually punch[ed] [Wright] in the face” and took the handle off the passenger door to prevent Wright from opening it. Then appellant drove to a store to buy cigarettes and soda for himself. Before he went into the store, he locked Wright in the trunk of the car. Appellant left the car and returned a few minutes later; he then drove to another store while Wright remained in the trunk.
The blows caused Wright’s chin, left eye, and arm to bleed; the blows left scars on her face and on her shoulder.
Appellant eventually permitted Wright to get out of the trunk but he held her arm so she could not escape. As soon as her “feet got to the ground, [she] snatched [her] arm [away from appellant] and took off running.” She ran directly to a police car and told the police officer what had happened. She was “[u]pset, frantic, screaming, [and] disheveled.” Appellant was eventually arrested.
At trial, appellant denied assaulting Wright’s co-worker and gave his own version of the September 2006 incident. He admitted he had prior felony convictions for arson, robbery, sale of marijuana, and sale of a controlled substance.
Sentencing
At the sentencing hearing, defense counsel asked the court to exercise its discretion pursuant to Romero and strike appellant’s prior convictions. Counsel explained that appellant’s prior convictions for arson in 1987 were “a result of him actually taking responsibility and pleading.” Counsel also noted that appellant had no serious or violent felonies since his 1996 conviction for arson. Counsel also contended that the case was “not the most egregious domestic violence case where someone is shot, or stabbed or injured in significant ways.” Finally, counsel described appellant’s physical ailments and stated that “any life sentence basically would [be] almost equivalent to a death sentence” because of appellant’s age.
The court stated that it had “read and considered the probation officer’s report” as well as various letters from appellant and Wright. It then denied the motion, telling appellant: “I think that your past record has shown when you get into situations where you feel that you have been wronged domestically . . . that you react violently . . . And certainly one can see that in the two arson incidents, and one can see that in the most recent incident . . . And were you released from custody, you would be a substantial danger to another such person[.]” The court expressed concern that if it granted the Romero motion, it would be reversed by the Court of Appeal because appellant did not fall outside the spirit of the Three Strikes Law. Finally, the court noted that appellant “certainly [ ] [did] not fall outside the spirit of the [T]hree [S]trikes [L]aw, given [his] substantial past record . . . and particularly having two violent strike priors and an existing kidnap finding which is also a violent felony.” The court then sentenced appellant to 35 years to life in state prison.
DISCUSSION
The Court Properly Denied Appellant’s Batson/Wheeler Motion
Appellant, an African-American, contends the trial court erred in denying his Batson/Wheeler motion because: (1) the prosecutor’s “purported reasons” for challenging R.H. were pretextual; and (2) the court failed to “make a ‘sincere and reasoned attempt to evaluate’ them.”
Both the state and federal Constitutions forbid a prosecutor from excluding prospective jurors from the jury for a purposefully racially discriminatory purpose. (Batson, supra, 476 U.S. at pp. 95-96; Wheeler, supra, 22 Cal.3d at pp. 276-277.) In other words, the prosecution may not exercise peremptory challenges solely on the basis of presumed group bias, i.e., on the presumption “jurors are biased merely because they are members of an identifiable group distinguished on racial . . . or similar grounds.” (Wheeler, supra, 22 Cal.3d at p. 276.)
The following procedure applies to a Batson/Wheeler challenge to a peremptory strike: “‘“First, the defendant must make out a prima facie case ‘by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.’ [Citations.] Second, once the defendant has made out a prima facie case, the ‘burden shifts to the State to explain adequately the racial exclusion’ by offering permissible race-neutral justifications for the strikes. [Citations.] Third, ‘[i]f a race-neutral explanation is tendered, the trial court must then decide . . . whether the opponent of the strike has proved purposeful racial discrimination.’”’” (People v. Zambrano (2007) 41 Cal.4th 1082, 1104, overruled on another point in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 5.)
“‘We review the trial court’s ruling on purposeful racial discrimination for substantial evidence. [Citation.] It is presumed that the prosecutor uses peremptory challenges in a constitutional manner.’” (Zambrano, supra, 41 Cal.4th at p. 1104; People v. Turner (1994) 8 Cal.4th 137, 165, overruled on different grounds in People v. Griffin (2004) 33 Cal.4th 536, 555, fn. 5 [“There is a presumption that a prosecutor uses his or her peremptory challenges in a constitutional manner”].) “Since the trial judge’s findings [on this issue] largely will turn on evaluation of credibility, a reviewing court ordinarily should give those findings great deference” (Batson, supra, 476 U.S. at p. 98, fn. 21), “recogniz[ing] that such a ruling ‘requires trial judges to make difficult and often close judgments.’” (Wheeler, supra, 22 Cal.3d at p. 281.) Nonetheless, the “exclusion by peremptory challenge of a single juror on the basis of race or ethnicity is an error of constitutional magnitude requiring reversal.” (People v. Silva (2001) 25 Cal.4th 345, 386.)
“The proper focus of a Batson/Wheeler inquiry, of course, is on the subjective genuineness of the race-neutral reasons given for the peremptory challenge, not on the objective reasonableness of those reasons. [Citation.] So, for example, if a prosecutor believes a prospective juror with long, unkempt hair, a mustache, and a beard would not make a good juror in the case, a peremptory challenge to the prospective juror, sincerely exercised on that basis, will constitute an entirely valid and nondiscriminatory reason for exercising the challenge. [Citation.] It matters not that another prosecutor would have chosen to leave the prospective juror on the jury. Nor does it matter that the prosecutor, by peremptorily excusing men with long unkempt hair and facial hair on the basis that they are specifically biased against him or against the People’s case or witnesses, may be passing over any number of conscientious and fully qualified potential jurors. All that matters is that the prosecutor’s reason for exercising the peremptory challenge is sincere and legitimate, legitimate in the sense of being nondiscriminatory. ‘[A] “legitimate reason” is not a reason that makes sense, but a reason that does not deny equal protection. [Citations.].’ [Citation.]” (People v. Reynoso (2003) 31 Cal.4th 903, 924.)
Here, the prosecutor stated two reasons for challenging R.H. First, he explained that R.H.’s marital history (R.H. had been divorced three times, more than any other potential juror) “may cause his own past experience to spill over into this trial in a way that he would identify more with the defendant than is proper.” The prosecutor also noted that he “decided that [he] could not allow somebody who had so many failed marriages to sit in this case where we had a failed marriage at issue.” Second, the prosecutor stated that he was concerned about R.H.’s feelings on the criminal justice system — that there was room for improvement and that a “better defense can be waged if you are financially able.”
Appellant takes issue with the prosecutor’s characterizations of R.H.’s three marriages as “failed.” We are unable to see how a marriage ending in divorce is not “failed.” Appellant also disagrees with the prosecutor’s characterization of this case as concerning “a failed marriage,” but the record amply supports the characterization: appellant was separated from his wife when he kidnapped her, injured her, and threatened to kill her. At trial, Wright testified that she planned to divorce appellant.
We cannot conclude that these reasons were implausible. (See Reynoso, supra, 31 Cal.4th at p. 916 [“[I]mplausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination”].) It is well-settled that a “prosecutor is entitled to exercise a certain number of peremptory challenges simply on a suspicion that the juror will be unfavorable to his or her cause. . . .” (People v. Pinholster (1992) 1 Cal.4th 865, 914.) “Jurors may be excused based on ‘hunches’ and even ‘arbitrary’ exclusion is permissible, so long as the reasons are not based on impermissible group bias. [Citation.]” (Turner, supra, 8 Cal.4th at p. 165.) And “[n]owhere does Wheeler or Batson say that trivial reasons are invalid.” (People v. Johnson (1989) 47 Cal.3d 1194, 1218.)
It is not implausible that the prosecutor would harbor an honest concern that someone who had been married — and divorced — three times might be unable to assess the evidence impartially in a case concerning a dispute between husband and wife. People v. Hamilton (2009) 45 Cal.4th 863 is on point. In that case, the California Supreme Court held, among other things, that the trial court did not abuse its discretion in concluding that the prosecutor’s reasons for excluding prospective African-American jurors were race-neutral. The prosecutor excused one prospective juror because she “was young and single;” the prosecutor explained “that he did not want unsophisticated, immature jurors, since he thought the case would ‘definitely appeal more to married people and particularly married people with children.’” (Id. at p. 903.) The California Supreme Court also rejected the defendant’s assertion that the trial court failed to carefully assess the prosecutor’s stated reasons for challenging the African-American prospective jurors. (Id. at pp. 906-907.)
Nor is the prosecutor’s second reason for challenging R.H. implausible. R.H. stated that a defendant could get a better defense if he or she were “financially able.” It is not implausible for the prosecutor to perceive that R.H. may have sympathy for appellant, who was unemployed and unable to hire an attorney of his choosing. The trial court concluded that the prosecutor’s reasons for excluding R.H. were “race-neutral” and “honest.” Deferring, as we must, to the trial court’s determination, we conclude substantial evidence supports the trial court’s finding that the prosecutor’s peremptory challenge of R.H. was not motivated by discriminatory intent. (People v. Cruz (2008) 44 Cal.4th 636, 661.)
Appellant’s reliance on comparative juror analysis does not alter our conclusion. (Cruz, supra, 44 Cal.4th at p. 661.) Consistent with the California Supreme Court’s holding in People v. Lenix (2008) 44 Cal.4th 602, 622, “we have undertaken comparative juror analysis of the jury questionnaire and voir dire responses of other prospective jurors identified by [appellant] as supportive of his claim that [R.H.] was excused with discriminatory intent.” (Cruz, supra, 44 Cal.4th at p. 659, fn. omitted.) In conducting comparative juror analysis, we bear in mind that “the question is not whether we as a reviewing court find the challenged prospective jurors similarly situated, or not, to those who were accepted, but whether the record shows that the party making the peremptory challenges honestly believed them not to be similarly situated in legitimate respects.” (People v. Huggins (2006) 38 Cal.4th 175, 233.) Appellant contends that the prosecutor accepted five jurors, “four with amicable divorces, one with a contentious divorce” which demonstrates that the prosecutor’s challenge of R.H. on the grounds of his “‘prior failed marriages’ was pretextual.” We disagree. The prosecutor noted that R.H.’s three divorces made him “unique in this entire venire.” As a result, the record shows that the prosecutor “honestly believed” that the R.H. was not similarly situated to the rest of the jurors in the venire. (Id. at p. 233.)
Appellant also faults the trial court for failing to “make a ‘sincere and reasoned attempt to evaluate’” the prosecutor’s stated reasons for challenging R.H. Appellant seems to suggest the court was required to “question the prosecutor” and make “specific findings regarding [R.H.] himself, the prosecutor’s lack of questioning [R.H.] about his prior marriages, . . . the connection between prior marriages and the issues in the case being tried, the relative significance of [R.H.]’s statements about the criminal justice system, etc.”
Again, we disagree. To be sure, the trial court “‘must make “a sincere and reasoned attempt to evaluate the prosecutor’s explanation in light of the circumstances of the case as then known, his knowledge of trial techniques, and his observations of the manner in which the prosecutor has examined members of the venire and has exercised challenges for cause or peremptorily. . . .” [Citations.]’ But in fulfilling that obligation, the trial court is not required to make specific or detailed comments for the record to justify every instance in which a prosecutor’s race-neutral reason for exercising a peremptory challenge is being accepted by the court as genuine.” (Reynoso, supra, 31 Cal.4th at p. 919.) “When the prosecutor’s stated reasons are both inherently plausible and supported by the record, the trial court need not question the prosecutor or make detailed findings.” (Silva, supra, 25 Cal.4th at p. 386.) It is only “when the prosecutor’s stated reasons are either unsupported by the record, inherently implausible, or both, [that] more is required of the trial court than a global finding that the reasons appear sufficient.” (Ibid.) Here, the prosecutor’s stated reasons for challenging R.H. were both plausible and supported by the record. As a result, the trial court did not err in declining to question the prosecutor or make “specific findings” regarding the prosecutor’s reasons for challenging R.H.
The Denial of Appellant’s Romero Motion Was Not an Abuse of Discretion
Next, appellant challenges the sentencing court’s denial of his Romero motion. He contends the court abused its discretion by denying the motion because the trial court “did not base its decision on the applicable criteria incident to [appellant’s] background and other ‘individualized’ considerations, as required by Romero[.]”
“[A] court’s failure to dismiss or strike a prior conviction allegation is subject to review under the deferential abuse of discretion standard.” (Carmony, supra, 33 Cal.4th at p. 374.) To establish an abuse of discretion, “[i]t is not enough to show that reasonable people might disagree about whether to strike one or more of his prior convictions. Where the record demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the trial court’s ruling, even if we might have ruled differently in the first instance. [Citation.]” (People v. Myers (1999) 69 Cal.App.4th 305, 310; see also Carmony, supra, at pp. 376-377.)
The factors a trial court must evaluate when exercising its discretion under section 1385 are “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.” (Williams, supra, 17 Cal.4th at p. 161.)
Here, the first factor, “the nature and circumstances” of appellant’s present felonies — kidnapping, criminal threats, and willfully inflicting corporal injury on a spouse — weighed against striking his prior convictions. As noted above, appellant tied his wife up, punched her in the face, threatened to kill her with a screwdriver, and locked her in the trunk of his car. The second factor, appellant’s “prior serious and/or violent felony convictions,” also weighed against striking the prior convictions. The probation report noted that appellant “amassed a substantial criminal history.” Over his 49-year lifetime, appellant had: (1) “numerous juvenile arrests and spent time in juvenile detention facilities in Chicago;” (2) suffered three convictions in Illinois for theft, burglary, and robbery; and (3) been convicted 16 times in California for assault, arson, vandalism, and several vehicular and drug offenses. He served four prison terms, two in California and two in Illinois. And according to the probation report, appellant’s “prior performance on probation and parole was unsatisfactory.”
The final factor, the “particulars of [appellant’s] background, character and prospects,” weighed against striking his prior convictions. The probation report noted that appellant had a “troubling childhood. He was raised in an environment infested with drug abuse, drug sales, domestic violence and other unappealing circumstances.” The report also observed, however, that appellant “appears to have gravitated toward these environments . . . he joined his mother in California because he learned she was prospering in the drug trade in a new location.” According to the report, appellant “has no documented efforts of trying to do better. [His] lack of impulse control, his propensity toward violence and crime and his history of involvement in serious offenses warrant a reasonable prison commitment.”
Appellant contends the trial court erred by focusing on his criminal history without considering unspecified “documented and undisputed facts urged upon it by defense counsel.” At the hearing on the Romero motion, the court stated that it had considered the information in the probation report and the information in letters written by appellant and Wright. These documents describe appellant’s difficult childhood, medical history, age, and circumstances. The record therefore establishes that the lower court considered these factors and “balanced the relevant facts . . . .” (Myers, supra, 69 Cal.App.4th at p. 310.) As a result, we reject appellant’s contention that the trial court failed to consider the proper factors when it determined that appellant was not outside the spirit of the Three Strikes law.
Appellant also takes issue with a comment the trial court made during the hearing that if the court were to grant the Romero motion, it would be reversed by the Court of Appeal. He contends the court “relied on the wrong standard in exercising its discretion . . . .” We disagree with appellant’s characterization of the court’s statements. The court concluded that appellant was outside the spirit of the Three Strikes Law and noted that, having reached that conclusion, it was required to deny the Romero motion. The court’s comments reflect its awareness of the legal standard it was required to apply.
Appellant’s Sentence Does Not Constitute Cruel and Unusual Punishment
Finally, appellant contends that his sentence — 35 years to life in state prison — constitutes cruel and unusual punishment within the meaning of the state and federal Constitutions. In response, the People argue that appellant forfeited this argument by failing to raise it in the trial court. We agree. If a defendant does not raise the issue of cruel and unusual punishment in the trial court, it is forfeited on appeal. (See People v. Norman (2003) 109 Cal.App.4th 221, 229-230 [defendant waived cruel and unusual punishment argument by failing to raise it below]; People v. DeJesus (1995) 38 Cal.App.4th 1, 27 [same].)
We address the merits of appellant’s argument notwithstanding his failure to raise the argument in the trial court. (See, e.g., Norman, supra, 109 Cal.App.4th at pp. 229-230.) Appellant claims his sentence violates the federal prohibition on cruel and unusual punishment because it is disproportionate to “the gravity of his offenses.” A punishment for a term of years violates the Eighth Amendment to the United States Constitution if it is an “‘extreme sentence[ ] that [is] “grossly disproportionate” to the crime.’” (Ewing v. California (2003) 538 U.S. 11, 23 (Ewing) (plur. opn. of O’Connor, J.); Lockyer v. Andrade (2003) 538 U.S. 63, 72; Harmelin v. Michigan (1991) 501 U.S. 957, 1001 (Harmelin) (conc. opn. of Kennedy, J.).) In a noncapital case, “‘successful challenges to the proportionality of particular sentences have been exceedingly rare.’ [Citation.]” (Ewing, supra, 538 U.S. at p. 21.)
Kidnapping one’s wife, willfully inflicting corporal injury on her, and threatening to kill her — while armed with a screwdriver — are serious crimes. Appellant concedes as much but tries, unsuccessfully, to minimize the seriousness of his offenses by arguing that the “injuries inflicted on Ms. Wright” were somehow not serious because she did not bother to see a doctor for treatment and by noting that appellant released Wright and might have allowed her to “run directly to a . . . patrol officer.” We are not persuaded. Appellant’s argument ignores the fact that his blows to her face and arms left scars and that appellant held Wright’s shirt as she got out of the trunk. He did not allow her to run away — she broke free of his grasp and fled. Moreover, the severity of Wright’s injuries is not the determinative factor.
He also compares his case to several others in an attempt to demonstrate that the punishment imposed here was grossly disproportionate to his crimes. He notes that in People v. Carmony (2005) 127 Cal.App.4th 1066, 1072-1077, the court concluded that a 25-year-to-life sentence was cruel and unusual where the current offense — failure to register as a sex offender — was a “harmless technical violation of a regulatory law.” (Id. at p. 1072.) He also refers us to Banyard v. Duncan (C.D. Cal. 2004) 342 F.Supp.2d 865, 867-868, where a district court held that a 25-year-to-life sentence was grossly disproportionate where the predicate offense was possession of a small amount of rock cocaine. Finally, he relies on Ramirez v. Castro (9th Cir. 2004) 365 F.3d 755, where the Ninth Circuit determined that a 25-year-to-life sentence was grossly disproportionate to a crime of petty theft (id. at pp. 756-758), and on Reyes v. Brown (9th Cir. 2005) 399 F.3d 964, 965, 968-970, where the Ninth Circuit held a similar sentence was grossly disproportionate to a crime of perjury. These cases are inapposite. Appellant was not convicted of a “harmless technical violation” or of a nonviolent offense. He was convicted of kidnapping his wife, hitting her, and of threatening to kill her. He tied her up, punched her, and locked her in the trunk of his car.
Appellant’s claim that his sentence violates the California Constitution’s prohibition on cruel and unusual punishment fares no better. A punishment may violate the California Constitution if “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, fn. omitted (Lynch).) To make that determination, we focus on the following three areas, any one of which can, by itself, establish disproportionality: (1) the nature of the offense and the offender; (2) a comparison with the punishment imposed for more serious crimes in the same jurisdiction; and (3) a comparison with the punishment imposed for the same offense in different jurisdictions. (Id. at pp. 425-427.)
Regarding the first factor, we consider “the totality of the circumstances[.]” (People v. Dillon (1983) 34 Cal.3d 441, 479.) With respect to the nature of the offender, we consider his “individual culpability as shown by such factors as his age, prior criminality, personal characteristics, and state of mind.” (Ibid.) As we have already explained, the nature of the offenses was serious. As for the offender, appellant’s probation report shows he has 16 prior convictions in California and several convictions in Illinois. The probation report also noted that appellant has a “lack of impulse control, [a] propensity toward violence and crime and [a] history of involvement in serious offenses.”
Appellant contends that three of his previous convictions — for arson in violation of section 451 — are 10 and 19 years old. We are not persuaded by his suggestion that the “remoteness” of these convictions for arson should lessen the weight attached to his criminal history. Appellant spent a significant period of time since 1987 in custody — approximately 17 years — and reoffended when he was released. Our review of the offenses and the offender does not compel us to find that appellant’s sentence is grossly disproportionate to the crime he has committed sufficient to shock the conscience and offend notions of human dignity. (Lynch, supra, 8 Cal.3d at p. 424.)
Next we consider the second factor: a comparison of the challenged penalty with punishments for more serious offenses committed in the same jurisdiction. Appellant contends his sentence is far greater than that imposed for “other, more serious crimes” such as second degree murder, voluntary manslaughter, or rape. But appellant ignores the fact that he is not being punished “merely on the basis of his current offense but on the basis of his recidivist behavior.” (Cf. People v. Kinsey (1995) 40 Cal.App.4th 1621, 1630; People v. Cartwright (1995) 39 Cal.App.4th 1123, 1136-1137.) “‘The basic fallacy of appellant’s argument lies in his failure to acknowledge that he “is not subject to a life sentence merely on the basis of his current offense but on the basis of his recidivist behavior. Recidivism in the commission of multiple felonies poses a manifest danger to society[,] justifying the imposition of longer sentences for subsequent offenses. [Citations.]” [Citation.]’” (People v. Mantanez (2002) 98 Cal.App.4th 354, 366, quoting People v. Stone (1999) 75 Cal.App.4th 707, 715.)
Finally, we compare the punishment imposed in this case with punishment imposed for the same offense in other jurisdictions. We note “[t]hat California’s punishment scheme is among the most extreme does not compel the conclusion that it is unconstitutionally cruel or unusual. This state constitutional consideration does not require California 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. Martinez (1999) 71 Cal.App.4th 1502, 1516.)
Appellant’s sentence does not violate the proscription of cruel or unusual punishment under either the federal or state Constitutions.
DISPOSITION
The judgment is affirmed.
We concur: Needham, J., Stevens, J.
Retired Associate Justice of the Court of Appeal, Division Five, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.