Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 04CR5541
SCOTLAND, P.J.
A jury convicted defendant Orval Flannery of felony theft. He then admitted having six prior serious felony convictions, and was sentenced to 25 years to life in state prison. On appeal, he contends (1) the evidence was insufficient to support the theft conviction, (2) the trial court erred in allowing into evidence a videotape related to the theft, (3) his sentence of 25 years to life violates the federal and state constitutional bans on cruel and/or unusual punishment, and (4) the court abused its discretion when it denied his Romero motion (People v. Superior Court (Romero) (1996) 13 Cal.4th 497) and refused to reduce the theft from a felony to a misdemeanor. We shall affirm the judgment.
FACTS
An Albertson’s market had 20 to 30 television sets for sale in January 2004. The sets were stored in their boxes on top of freezers in the middle aisle, except for three that were on display at the front counter. The display consisted of two boxed televisions on top of which was a television that had been removed from its box.
On January 29, 2004, Albertson’s employees Christie Limbaugh, Anthony Lara, and Kelly Metcalf were at work and saw defendant in the store. After observing defendant leave the store pushing a cart with one of the store’s television set boxes in it, Metcalf asked other employees if anyone had sold a television. They had not. Limbaugh and Lara then went outside to the parking lot, where Limbaugh saw defendant putting groceries into a red Bronco or Blazer. Lara saw defendant loading a television box into a red truck with a camper shell. Limbaugh wrote down the license number of the vehicle and returned to the store. Police were notified of the suspected theft.
About 20 minutes after defendant had left Albertson’s, Metcalf checked the television sets on the freezers. It appeared that one had been removed because there was “a dust mark around where there had been a TV, where the box was sitting.” Tim Lalley, an assistant store director, also checked the freezer. It appeared to him that one of the television sets was missing, but he was unable to determine which one.
Neither Lalley nor Metcalf knew how many televisions were in stock in January 2004. Lalley checked the sales reports for January 28, 29, and 30, which showed no television sets were sold on those days. That no television sets were sold on those dates was later confirmed by Lorna McGowan, another store director, who conducted a computer record search for sales.
A videotape of Albertson’s surveillance system made the day of the television theft showed a man, identified by Lara and Limbaugh as defendant, near the red truck pushing a cart containing a white box, which looked like boxes containing Albertson’s television sets.
Deputy Jeffrey Ernst ran a computer check of the license plate number provided by Limbaugh, and it came back as a 1983 Chevrolet “[u]tility vehicle truck” registered to defendant. Detective Keith Anenson searched defendant’s residence in defendant’s absence, but did not find a television set matching the description of the set taken from Albertson’s. Anenson returned to defendant’s residence a few days later, but defendant was still not home. However, a red Chevrolet Blazer was parked there and did not have either a front or rear license plate.
A few days after the theft, Detective Thomas Rayzor telephoned defendant, who denied being in Albertson’s on January 29, 2004, or stealing a television set. Defendant claimed that he had purchased a television set from Albertson’s before Christmas and had the receipt for it. Defendant agreed to meet Rayzor the following day between 8:30 and 9:00 a.m. at the sheriff’s station to show him the receipt; but defendant did not show up.
Defendant did not call any witnesses.
DISCUSSION
I
Defendant claims there was a lack of “reliable evidence to support a finding” that he took a television from Albertson’s on January 29, 2004. The evidence is insufficient, he argues, because on January 29, 2004, Albertson’s did not know how many television sets it had in the store; Albertson’s did not have the serial numbers of the televisions on hand and, therefore, could not determine which particular television set was taken; no one observed defendant take a television set and there was no evidence that the box defendant was seen putting in his vehicle was not empty; and no television set of the type stolen from Albertson’s was found in defendant’s residence during a search conducted by Detective Anenson on January 31, 2004.
The argument fails because he ignores additional evidence and reasonable inferences to be drawn therefrom. (People v. Nguyen (1993) 21 Cal.App.4th 518, 528-529.)
Defendant was observed by Metcalf pushing a cart containing a television box out of Albertson’s on January 29, 2004, and he was observed by Lara putting that television box in his vehicle. A box containing a television appeared to be missing from atop a freezer where the televisions were stored. Albertson’s sales records for January 28, 29 and 30, 2004, showed no television sets had been sold on any of those days.
When questioned by Detective Rayzor, defendant demonstrated a consciousness of guilt by denying that he was in the Albertson’s on January 29, 2004, whereas his presence there on that day was confirmed by Albertson’s employees Limbaugh, Lara, and Metcalf, and by the videotape showing defendant near his vehicle in the Albertson’s parking lot, pushing a cart with a television box in it. Defendant further exhibited consciousness of guilt when he failed to attend an agreed-upon meeting with Rayzor to show Rayzor a receipt that defendant claimed he had for a television set he had purchased from Albertson’s.
Based on this circumstantial evidence, reasonable inferences can be drawn that a television set was stolen from the Albertson’s on January 29, 2004, and that the stolen television was in the television box that defendant took out of the store and put in his vehicle.
II
Defendant contends the trial court erred when, over his lack-of-authentication objection, it allowed into evidence the photographs taken from the Albertson’s videotape surveillance system showing him pushing a cart that contained a television box in the area of Albertson’s parking lot where his vehicle was parked. We disagree.
Assistant store director Tim Lalley testified that the surveillance system used by Albertson’s consisted of 16 cameras throughout the store from which a videotape was made. On the day of the theft, Lalley provided Deputy Ernst with the store’s videotape (People’s Exh. No. 7). Larry Waller, an investigator with the district attorney’s office, reviewed the videotape, which was not very clear because three images overlapped each other, but showed a man in the parking lot pushing a cart containing a box. Using special equipment, Waller separated the images and determined that it was a television box in the cart and that it was being pushed in the direction of a red truck. Waller transferred this part of the videotape to another tape (People’s Exh. No. 10), from which he developed four photographs (People’s Exh. No. 4). Waller could not determine when the original videotape had been taken.
During trial, Limbaugh testified one of the photographs showed the Albertson’s parking lot and defendant pushing a cart containing one of Albertson’s television set boxes (a white Apex box) toward the same vehicle she had seen the day of the theft. Lara testified the photographs of People’s Exhibit No. 4 showed defendant loading the television box into the red vehicle on the day in question.
When the People sought to introduce Exhibit Nos. 4 and 10, defendant objected on the ground that the exhibits had not been properly authenticated. The trial overruled the objection, finding they had been authenticated by the testimony of the witnesses and, therefore, were admissible pursuant to Evidence Code section 1421.
Defendant argues that the authentication accepted by the trial court was insufficient because no one testified to the date and time that the videotape was made. We, like the trial court, conclude the challenged exhibits were adequately authenticated.
Evidence Code section 1401, subdivision (a) provides that “Authentication of a writing is required before it may be received in evidence.” A videotape qualifies as a writing for purposes of Evidence Code section 1401, subdivision (a). (People v. Mayfield (1997) 14 Cal.4th 668, 747.) Authentication of a writing may be established by “(a) the introduction of evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is . . . .” (Evid. Code, § 1400.)
Here, witness Lalley testified that on the day of the theft, he gave Deputy Ernst the Albertson’s surveillance videotape that included January 29, 2004 (People’s Exh. No. 7). Investigator Waller testified that Exhibit Nos. 4 and 10 were made from Exhibit No. 7. Limbaugh and Lara testified that Exhibit Nos. 4 and 10 showed defendant in Albertson’s parking lot, near the red vehicle, as they had seen him during the afternoon of January 29, 2004. Consequently, the date and time were adequately established for purposes of authentication.
Because the trial court’s analysis--that the witnesses’ testimony established authentication--conformed with the authentication requirements of Evidence Code sections 1400 and 1401, it is immaterial that the court cited Evidence Code section 1421, which provides another basis for authentication of a writing, as the basis for authenticating the videotape.
III
Defendant contends the trial court violated the federal and state constitutional prohibitions against cruel and/or unusual punishment by imposing a sentence which is disproportional to both the offense committed and his individual culpability. We are not persuaded.
The Eighth Amendment’s 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 comparisons of (1) the gravity of the offense committed with the sentence imposed, (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.) However, “it 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.” (Ibid.)
This is not one of those rare cases.
Analyzing the gravity of the offense includes consideration of both the current felony and defendant’s criminal history. (People v. Meeks, supra, 123 Cal.App.4th at p. 708.) Considered in isolation, defendant’s current felony, the theft of a television set from Albertson’s, was relatively mild as felonies go. However, defendant’s criminal history, as set forth below, is far from mild.
In May 1993, defendant was convicted of discharging a firearm in a negligent manner (Pen. Code, § 246.3), a misdemeanor for which he was granted probation and given jail time.
In March 1994, defendant admitted committing five second degree robberies and one attempted second degree robbery during November 1992 through May 1993. He also admitted that in two of those offenses, he used a firearm, that in three of the offenses he used a deadly weapon, and in one of the crimes, he was armed with a firearm. The convictions resulted in a prison sentence of 12 years and four months.
Defendant was first paroled in April 2001, but was found in violation of parole in September 2001. Not only did he violate his parole two more times, he was still on parole when he committed the theft from Albertson’s.
Given defendant’s history of violent robberies, his inability to follow the rules when released on parole, and his commission of the present offense while still on parole, his sentence does not raise an inference of gross disproportionality.
Defendant claims his situation “mirrors” that in Ramirez v. Castro (9th Cir. 2004) 365 F.3d 755 (hereafter Ramirez), which concluded that a 25-years-to-life sentence for shoplifting a $199 VCR was grossly disproportionate to the offense. The analogy fails.
In May 1996, Ramirez was arrested after walking out of a Sears store carrying a $199 VCR which he had stolen. (Ramirez, supra, 365 F.3d at 756.) He was convicted of felony theft and found to have been convicted of two second degree robberies (strikes) in 1991. (Id. at p. 757.) He was sentenced to 25 years to life. (Id. at p. 756.) The Ninth Circuit Court of Appeals found that Ramirez’s sentence was grossly disproportionate to the offense because it was a nonviolent wobbler; his robbery convictions were likewise essentially nonviolent; he had admitted them prior to California’s enactment of the three strikes law; they were punished by one year in county jail and three years probation; and he had remained crime free until his commission of the instant offense. (Ramirez, supra, 365 F.3d at pp. 757, 768-769.)
In the first robbery, defendant and his sister were shoplifting from a Lucky grocery store; the only force used was when the driver of their getaway car ran over a security guard’s foot causing a “minor injury.” (Ramirez, supra, 365 F.3d at p. 757.) In the second robbery, defendant was shoplifting from a K-Mart store; the only force used was defendant’s pushing a guard with his open hand as he was running from the store. (Ibid.)
In contrast, defendant had six violent convictions, each involving threats and/or force; he admitted using or being armed with a firearm or a deadly weapon in each offense; he was sentenced to state prison for 12 years and four months; he violated his parole on three occasions; and he was on parole when he committed the Albertson’s theft, which occurred only five and one-half months after his latest parole. In no way do the circumstances of defendant’s crime and background “mirror” those of Ramirez.
Defendant also views his present circumstances as “similar” to those in People v. Carmony (2005) 127 Cal.App.4th 1066 (hereafter Carmony), which reversed a term of 25 years to life on the ground that it violated federal and state proscriptions against cruel and/or unusual punishment. Again, we see no real similarity.
In Carmony, the two-strike appellant’s predicate offense was failing to register his current address as a sex offender within five working days of his birthday. (Carmony, supra, 127 Cal.App.4th at p. 1071.) The previous month, however, he had registered that information when he changed his residence. (Ibid.) Carmony held the offense was “no more than a harmless technical violation of a regulatory law” because the appellant had provided the state with his current address and, therefore, had not deprived the state of the information for which the purpose of the registration statute had been enacted, to wit, keeping track of registered sex offenders. (Id. at pp. 1072-1073.)
After first observing that its analysis was not meant to consider “the appropriateness of a recidivist penalty where the predicate offense does not involve a duplicate registration” (Carmony, supra, at p. 1073, fn. 3), this court distinguished the appellant’s offense from cases involving felony theft which pose “a far greater threat to public safety and involve[] substantially more culpability.” (Id. at p. 1084.) Consequently, Carmony is not on point.
Defendant has failed to establish gross disproportionality under the federal Constitution.
Defendant’s cruel or unusual argument fares no better under the California Constitution (art. I, § 17; hereafter section 17).
Under section 17, a sentence will not be allowed to stand 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.’” (Carmony, supra, 127 Cal.App.4th at p. 1085.) Relevant criteria in determining disproportionality are the nature of the offense and the offender, punishments prescribed in the same jurisdiction for different offenses which are deemed less serious, and the punishments prescribed for the same offense in other jurisdictions. (Id. at p. 1085.)
For precisely the same reasons that defendant cannot show gross disproportionality between his sentence and punishment under the federal Constitution, he cannot do so when considering the nature of his offense and the nature of the offender.
As to intrastate comparison of offenses that are more serious than defendant’s theft, he cites offenses, all of which are serious felonies (Pen. Code, § 1192.7, subd. (c)), noting their punishment is considerably less than the term he received. For example, defendant notes that the penalty for second degree murder is 15 years to life and that rape has a maximum punishment of eight years. However, defendant neglects to take into account that these are not three strike sentences. Indeed, a defendant with six prior serious strikes, as is the case with defendant, would receive a sentence of 55 years to life for each of the cited offenses--25 years to life plus 30 years for the prior serious felony convictions. Consequently, defendant’s intrastate punishment comparison fails.
As to interstate comparison, defendant argues that even considering his recidivist record, California’s three strikes law is “the most stringent in the nation.” Accepting that a person in another jurisdiction who is convicted of theft like that committed by defendant and has a recidivist background like defendant’s may not receive as severe a sentence as that imposed upon defendant, such disparity alone does not establish defendant’s punishment is constitutionally disproportionate. “That 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.)
IV
Finally, defendant contends that because his 25-year-to-life sentence is cruel and/or unusual punishment, the trial court abused its discretion when it refused to reduce the theft conviction to a misdemeanor or to strike his prior serious felony convictions for purposes of sentencing. Because these arguments are predicated on the incorrect assertion that defendant’s 25-year-to-life sentence for theft of a $149 television set constitutes cruel and/or unusual punishment, we reject these claims.
DISPOSITION
The judgment is affirmed.
We concur: SIMS, J., MORRISON, J.