Opinion
E043832.
1-29-2009
THE PEOPLE, Plaintiff and Respondent, v. JOSEPH HENDLEY, Defendant and Appellant.
Janet J. Gray, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon, Jr., and Stephanie H. Chow, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published in Official Reports
Defendant appeals from judgment entered following jury convictions for burglary (Pen. Code, § 459) and petty theft with a prior theft conviction (§§ 490.5 & 666). The court also found true four prior conviction allegations (§§ 1179.12, subds. (a)-(d), 667, subds. (b)-(i)) and two prison priors (§ 667.5, subd. (b)). The court sentenced defendant to an aggregate term of 25 years to life in prison.
Defendant contends the trial court erred in not giving CALCRIM No. 359; there was insufficient evidence of his convictions for burglary and theft with a prior; there was insufficient evidence of his 1995 prior serious felony conviction enhancement for assault with a deadly weapon; the trial court erred in giving instruction on flight after crime, CALCRIM No. 372; the trial court abused its discretion in denying defendants motion to dismiss one or more of defendants prior convictions; the trial court erred in treating defendants offenses as felonies, rather than as misdemeanors; defendants sentence under the Three Strikes law constitutes cruel and/or unusual punishment; and defendants conviction for petty theft with a prior should be stayed under section 654. For the reasons set forth below, we affirm the judgment.
1. Facts
Singhs Testimony
On November 24, 2006, at around 1:00 a.m., the owner of Breeds Market, Parmjit Singh, was notified that his store was on fire. Singh immediately went to the store. He lived about a mile away. When Singh arrived with his brother, Dalbir Singh, fireman were fighting the fire. The police were also there. Fireman knocked down the front doors to enter the store. The fire department put out the fire around 4:00 a.m.
After the fire was extinguished, the firemen and police left, and around 4:15 a.m., Singh went home to change into warmer clothes and shoes. Before leaving, Singh went inside the store to look around. As Singh was leaving, he leaned the front doors against the door opening.
Singh returned to the store about 10 minutes later to secure the store in order to prevent people from entering it. Singh went inside and noticed a black bag on the floor behind the counter. He had not noticed it there before. Singh looked in the bag and found lottery tickets from his store (32 tickets worth $96) and pennies ($23.50). Singh believed someone had entered the store after he had gone home to change his clothes.
Singh looked outside and saw defendant walking in the parking lot. Defendant was holding a white bag and a flashlight. He said to Singh, "lets go, time to go home." It was about 4:30 a.m. Defendant had been a regular customer at Singhs store. He came in about once a week. Singh never had any problems with him.
After seeing defendant, Singh and his brother left the store, got into Singhs car, and followed defendant, who had walked down the street. When Singh caught up with defendant, Singh stopped and asked defendant if he had entered Singhs store that night. Defendant said no. Singh asked defendant if he knew anything about the store catching on fire. Defendant said he was aware of the fire. Singh patted down defendants pocket, searching for lottery tickets, and found a few tickets which Singh removed from defendants back pocket. Singh and his brother then departed.
As Singh was returning to his store, he stopped a police car passing by and told the officer that defendant had entered his store after the fire. Singh then went back to his store. The police officer meanwhile found defendant and brought him back to the store. The officer and defendant entered the store. The officer looked in the black bag and removed lottery tickets, penny rolls, prescription medicine bottles, a rope, a wrench, and a jar of pennies.
Singh testified that he normally kept the lottery tickets inside the glass-top counter display case next to the cash register. The tickets were "scratcher tickets." Singh did not notify the California State Lottery Agency that any lottery tickets had been stolen.
Singh compared the lottery tickets from the black bag with the ones in his store. It appeared the tickets in the bag had been ripped off the roll of tickets at the store. The serial numbers also matched the store tickets. The tickets in the bag were new tickets that had not been scratched off, whereas the tickets taken from defendants pocket were not new and had already been scratched.
Officer Hamiltons Testimony
Officer Hamilton testified that he and other officers responded to the fire at Breeds Market. He did not remain at the scene very long because most of the fire was out by the time he arrived.
At 6:00 a.m. he returned to the scene after Singh flagged him down and told him someone had just burglarized his store. Singh told Hamilton the burglar was a Black male, carrying a white bag with a flashlight. Hamilton drove to the area where Singh had said he last seen the burglar. Hamilton saw defendant, who fit Singhs description, and approached him. Defendant was carrying a flashlight and white plastic bag. Hamilton detained defendant and took him to Breeds Market.
Hamilton entered the store and found the black bag behind the counter. The bag contained lottery tickets, a plastic jug, 47 rolls of pennies, a rope, and two prescription bottles. Defendants name was on the prescription bottle labels. Defendant told Hamilton the bottles and black bag were his. Hamilton included in his report that he asked defendant if the black bag was his but did not mention in his report whether he asked defendant specifically about the items inside the bag. Singh identified the lottery tickets, rolls of pennies, and jug of pennies as his.
Hamilton transported defendant to the station and, after defendant waived his Miranda rights, Hamilton took defendants statement. Defendant said that on November 24, he was walking by Breeds Market and noticed there had recently been a fire. He entered the store to get lottery tickets. When he was inside the store, he went to where the lottery tickets were near the registers, took several tickets, and put the tickets in a black bag. He saw a container of pennies and put it in the bag as well. As he was filling the bag, he heard someone outside in front of the store, got scared, and fled.
Singh handed Hamilton nine or 10 lottery tickets, other than those in the bag, which Singh said he had taken from defendant. The tickets were used scratcher tickets. There were 32 lottery tickets in the black bag.
Raid Jadallahs Testimony
Raid Jadallah was the assistant manager at Singhs store. The night of the fire he worked at the store until it closed at 9:30 p.m.
Defendant had been a customer at Breeds Market for 16 or 17 years. He came in one or two times a week. Jadallah had had no problems with him. Defendant bought a lottery ticket once in a while. Jadallah did not recall when he last sold defendant a ticket before the fire.
Jadallah saw defendant on November 24, after the fire, walking across the street, from the store to the other side of the street. Jadallah always saw defendant with a bag of some sort. Jadallah did not recall seeing a black bag behind the counter on November 23, 2006, when he closed the store. Jadallah said he would have moved it, had it been there.
Neither Jadallah nor Singh recalled seeing defendant in the store on November 23.
A California State Lottery agent, Albert Lewis, who investigated lottery crimes, testified that he investigated lottery tickets provided by defense counsel. Lewis was told the tickets were found on defendant. All the tickets were from Breeds Market, with the exception of one packet of tickets that was from Meed Valley Market, located on the same street as Breeds Market. The tickets had not been reported to the lottery agency as lost or stolen.
2. Failure to Give CALCRIM No. 359 on Corroborating Evidence
Defendant contends the trial court erred in failing to give CALCRIM No. 359. Both parties requested, and the court agreed to give CALCRIM No. 359, which states: "The defendant may not be convicted of any crime based on (his) out-of-court statement[s] alone. You may only rely on the defendants out-of-court statements to convict (him) if you conclude that other evidence shows that the charged crime [or a lesser included offense] was committed. [¶] That other evidence may be slight and need only be enough to support a reasonable inference that a crime was committed. [¶] The identity of the person who committed the crime [and the degree of the crime] may be proved by the defendants statements alone. [¶] You may not convict the defendant unless the People have proved (his) guilt beyond a reasonable doubt."
The record indicates that the trial court agreed to give CALCRIM No. 359 but inadvertently failed to read the instruction to the jury. The court told the jury it would provide the written jury instructions to the jury during deliberations but there is nothing in the record establishing this actually occurred or that, if it did, the jury looked at CALCRIM No. 359.
Defendant did not object in the court below to the trial court failing to read CALCRIM No. 359 to the jury. But this did not forfeit defendants objection. Section 1259 permits a reviewing court to review any jury instruction given, refused, or modified even though no objection was made if substantial rights are affected. "Since no conscious, deliberate, or tactical reason was stated for concurring in the instructions, there was no invited error or waiver of the instructional error claims." (People v. Collins (1992) 10 Cal.App.4th 690, 694-695.)
The trial court was required to give CALCRIM No. 359 because defendant gave a statement to the police, in which defendant admitted he entered the closed store with the intent to steal lottery tickets. Defendant argues that by not giving CALCRIM No. 359, the court failed to instruct fully on the corpus delicti of the charged crimes and therefore the error constituted structural error requiring per se reversal. And even if not reversible per se, defendant argues there was prejudicial error under Chapman v. California (1967) 386 U.S. 18, 24 (Chapman) and People v. Watson (1956) 46 Cal.2d 818, 835-836.
We apply the Chapman standard of review here in determining whether the instructional error violated defendants due process rights. (Chapman, supra, 386 U.S. at p. 24; People v. Mayfield (1997) 14 Cal.4th 668, 774 (Mayfield) regarding habeas corpus petition challenging instructional error.) Under Chapman, the failure to instruct on an element of an offense is harmless if it appears beyond a reasonable doubt that such error did not contribute to the verdict. (Mayfield, supra, at p. 774.)
Defendant argues the instructional error was prejudicial because there was no evidence independent of defendants statements admitting he committed the crimes. Specifically, there was no evidence that he intended to steal when he entered the store. We disagree.
There was overwhelming independent evidence supporting defendants convictions, including his intent to steal upon entering the store. The key evidence here was defendants black bag, which contained lottery tickets torn off from the tickets contained inside the stores glass display case and prescription medication bottles with defendants name on the bottle labels.
In addition, Jadallah testified he did not see the black bag on the floor by the counter when he closed the store that night and Singh testified he did not notice the bag when he briefly inspected the store after the fire was extinguished that night. It was not until after Singh briefly left the store after the fire, and returned, that he noticed the bag. Right after finding the bag, Singh looked outside and there was defendant, walking in the adjacent parking lot with a flashlight, telling Singh, "lets go, time to go home."
A reasonable inference could be made from this independent evidence that, when defendant became aware that there had been a fire at the store and noticed the store was unoccupied and accessible, defendant entered the store to steal. It would have been highly unlikely defendant entered for any other reason.
Based on this independent evidence, we conclude that beyond a reasonable doubt the trial courts failure to read to the jury CALCRIM No. 359 did not contribute to the verdict and thus was harmless error. (Mayfield, supra, 14 Cal.4th at p. 774.)
3. Sufficiency of the Evidence of Burglary
Defendant contends there was insufficient evidence of the requisite element of intent needed to support his burglary conviction. He argues the prosecution failed to provide evidence corroborating defendants statement he entered the store to get lottery tickets. We disagree.
Upon a challenge to the sufficiency of the evidence, we examine the whole record in the light most favorable to the judgment below and determine whether or not the record discloses substantial evidence upon which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578; People v. Ceja (1993) 4 Cal.4th 1134, 1138.) "In making this determination, we `"must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence."" (People v. Rayford (1994) 9 Cal.4th 1, 23.)
Here, the evidence was more than sufficient to support the jurys finding that defendant intended to steal when he entered the store. "In order to be guilty of burglary, an individual must unlawfully enter a dwelling with the intent to commit a theft or any felony." (In re Leanna W. (2004) 120 Cal.App.4th 735, 741.) In this case, defendant was charged with entering Breeds Market with intent to commit theft. For purposes of a burglary offense, theft "requires the intent to permanently deprive a person of property." (People v. Zangari (2001) 89 Cal.App.4th 1436, 1442.) The intent to permanently deprive someone of property may, of course, be shown by circumstantial evidence. (People v. Orr (1974) 43 Cal.App.3d 666, 670.)
Defendants statement or, rather, confession to Hamilton provided compelling, irrefutable evidence of defendants intent to steal when he entered Breeds Market. There was also compelling corroborating evidence from which a reasonable inference could be made that, when defendant became aware that there had recently been a fire at the store and noticed the store was unoccupied and easily accessible due to the scorched front door leaning against the door frame, defendant took advantage of these circumstances and entered the store with the intent to steal. Under such circumstances, there was more than ample evidence supporting defendants burglary conviction.
4. Sufficiency of Evidence of Theft Conviction
Defendant contends there was insufficient evidence supporting his theft conviction. Specifically, defendant argues there was no evidence he intended to deprive the store owner of the items in the black bag, since the bag and its contents were left in the store. Defendant further argues that, as to defendants statement to the police, the jury could not rely solely on it because the prosecution failed to corroborate with independent evidence the corpus delicti or elements of the crime.
The elements of a theft or larceny are the following: "the offense is committed by every person who (1) takes possession (2) of personal property (3) owned or possessed by another, (4) by means of trespass and (5) with intent to steal the property, and (6) carries the property away. . . . The intent to steal or animus furandi is the intent, without a good faith claim of right, to permanently deprive the owner of possession. [Citation.] And if the taking has begun, the slightest movement of the property constitutes a carrying away or asportation. [Citation.]" (People v. Davis (1998) 19 Cal.4th 301, 305 (Davis).) The trespass when committing larceny is not traditional trespass onto real property but trespass for goods carried away. (Ibid.)
Citing People v. Jaso (1970) 4 Cal.App.3d 767, defendant argues there was insufficient evidence of intent to steal. In Jaso, supra, the defendant put a dress in a shopping bag in an outdoor sales area and walked out of the area toward the parking lot without paying for the dress. (Id. at p. 769.) The defendant claimed he was going to the car to get more money. (Id. at p. 770.) The court in Jaso held that the trial court failed to instruct the jury that theft requires a finding that the defendant had the specific intent to deprive permanently the owner of his property. (Id. at p. 772.)
Here, there was no instructional error on intent and, more importantly, defendant admitted he intended to steal lottery tickets when he entered the store, and later decided also to steal the pennies. This is not a case of defendant hiding merchandise or claiming to leave the store temporarily with unpaid merchandise, to get money to pay for the merchandise. Defendants intent to deprive permanently the store owner of property was admitted by defendant and corroborated inferentially by evidence that defendant entered the closed store in the middle of the night and, when he heard someone approach the store, fled, leaving his bag containing the property taken from the store.
Defendant argues there was insufficient intent to steal because defendant did not remove the items from the store. We disagree. Defendant moved the items sufficiently to constitute theft. The slightest movement of stolen items is all the movement that is needed to satisfy the asportation element of theft. (Davis, supra, 19 Cal.4th at p. 305.) "[O]ne need not remove property from the store to be convicted of theft of the property from the store. [Citations.] One need only take possession of the property, detaching it from the store shelves or other location, and move it slightly with the intent to deprive the owner of it permanently. [Citation.]" (People v. Shannon (1998) 66 Cal.App.4th 649, 654.)
The evidence was sufficient to support a conviction for theft with a prior even though defendant ended up leaving his bag of stolen items in the store.
5. Sufficiency of Evidence of Prior Serious Felony
Defendant asserts there was insufficient evidence to support the trial courts finding that his prior conviction for violating section 245, subdivision (a)(1) (section 245(a)(1)) was a serious felony under section 1192.7, subdivision (c)(31). Specifically, defendant argues the record does not establish that he used a deadly weapon during the offense.
Under section 245(a)(1), it is a felony to commit "an assault upon the person of another with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury." (Ibid.) Only a conviction under the deadly weapon prong of section 245(A)(1) qualifies as a serious felony. (People v. Delgado (2008) 43 Cal.4th 1059, 1065 (Delgado).)
The trial court found true the prior serious felony allegation based on a 1995 conviction for violating section 245(a)(1). In proving the enhancement, the prosecutor introduced into evidence section 969, subdivision (b) packets (969(b) packets) of certified documents relating to defendants prior convictions, including abstracts of judgment. The abstract of judgment relating to the 1995 case stated that defendant violated section "245(A)(1)" and described the crime as "Assault with Dea."
Introducing into evidence certified documents from the record of the prior court proceeding, including the abstract of judgment describing the prior offense, is a common means of proving the fact and nature of a prior conviction. (Delgado, supra, 43 Cal.4th at p. 1066.) "Thus, if the prosecutor presents, by such records, prima facie evidence of a prior conviction that satisfies the elements of the recidivist enhancement at issue, and if there is no contrary evidence, the fact finder, utilizing the official duty presumption, may determine that a qualifying conviction occurred." (Ibid.)
On the other hand, if the prior conviction is for an offense that can be committed in multiple ways, such as a section 245(a)(1) offense, and "the record of the conviction does not disclose how the offense was committed, a court must presume the conviction was for the least serious form of the offense. [Citations.] In such a case, if the statute under which the prior conviction occurred could be violated in a way that does not qualify for the alleged enhancement, the evidence is thus insufficient, and the People have failed in their burden." (Delgado, supra, 43 Cal.4th at p. 1066.)
We apply the substantial evidence standard in reviewing the sufficiency of evidence of the prior conviction finding. (Delgado, supra, 43 Cal.4th at p. 1067.)
Defendant argued in the trial court that there was insufficient evidence supporting the prior serious felony enhancement because the abstract of judgment did not show that the prior enhancement was found true based on the personal use of a deadly weapon. The trial court disagreed and found the assault with a deadly weapon allegation true.
The People argue defendants contention has no merit under the recent holding in Delgado, supra, 43 Cal.4th at page 1063, in which our high court held that the abstract of judgment was sufficient evidence to establish a section 245 conviction as a serious felony where it identified the conviction as a violation of section 245(a)(1) and described it as "Asslt w DWpn." (Id. at pp. 1069, 1072.)
In Delgado, the court concluded the prosecution presented prima facie evidence in the form of a clear, presumptively reliable official record of defendants prior conviction, and the defendant produced no rebuttal evidence. (Delgado, supra, 43 Cal.4th at p. 1070.) The Delgado court stated that, "[u]tilizing the presumption of official duty, and drawing reasonable inferences from the official record, the trial court, as a rational trier of fact, could thus properly find beyond reasonable doubt that a prior serious felony conviction had occurred." (Ibid.) Defendant does not respond to this argument in his reply brief, indicating concession on this point.
Under Delgado, we conclude defendants sufficiency of evidence challenge is meritless. The prosecution presented prima facie evidence in the form of a clear, presumptively reliable official record of defendants prior conviction, and the defendant produced no rebuttal evidence. The abstract of judgment identified the serious felony conviction as a violation of section 245(a)(1) and described it as "Assault with Dea." A reasonable inference can be made from this description of the offense that it referred to assault with a deadly weapon, a serious felony.
Defendants reliance on People v. Rodriguez (1998) 17 Cal.4th 253, People v. Banuelos (2005) 130 Cal.App.4th 601, and People v. Luna (2003) 113 Cal.App.4th 395, is misplaced. These cases are factually distinguishable. The abstract of judgment descriptions of the offenses in those cases mentioned both prongs of section 245(a)(1), creating ambiguity as to the nature of the prior offense. (Rodriguez, supra, at p. 261 ["`ASLT BGI/DLY WPN"]; Banuelos, supra, at p. 605, ["`ASSAULT GBI W/DEADLY WEAPON"]; and Luna, supra, at p. 397 ["`ASSLT GBI W/DLY WPN"; see also Delgado, supra, 43 Cal.4th at p. 1068.)
Here, as in Delgado, we do not face the substantial ambiguities at issue in the prior decisions since the abstract of judgment for defendants prior conviction identifies the statute under which the conviction occurred and describes it sufficiently to find the offense was assault with a deadly weapon, which is a serious felony under section 1192.7, subdivision (c)(31). (Delgado, supra, 43 Cal.4th at p. 1069.) Furthermore, the abstract makes no mention of the other section 245(a)(1) crime involving force likely to produce great bodily injury, which is not a serious felony.
6. Instruction on Flight After the Crime
Defendant contends the trial court erred in giving CALCRIM No. 372 on flight after the crime, because there was no evidence defendant fled after committing the charged offenses. The People argue defendant forfeited the objection by failing to raise it in the trial court and, even if the objection was not forfeited, there was sufficient evidence supporting the instruction.
Generally, an appellant forfeits claims of error through inaction that prevents the trial court from avoiding or curing the error. (Steven W. v. Matthew S. (1995) 33 Cal.App.4th 1108, 1117.) This general waiver or forfeiture rule is "grounded on principles of waiver and estoppel, and is a matter of judicial economy and fairness to opposing parties. [Citations.]" (Smith v. Commonwealth Land Title Ins. Co. (1986) 177 Cal.App.3d 625, 629.) This court will not reverse erroneous rulings that could have been, but were not, challenged below. (Imperial Bank v. Pim Electric, Inc. (1995) 33 Cal.App.4th 540, 546.)
There are, however, exceptions to the general forfeiture rule whereby certain issues may be raised on appeal despite the appellants failure to raise them in the trial court. Section 1259 provides regarding forfeiture that the appellate court may "review any instruction given, refused or modified, even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby."
Here, defendant is arguing his fundamental, constitutional rights to due process and a fair trial were violated by the trial court instructing on flight after the crimes, when there was no evidence supporting the instruction. We thus will consider the issue on the merits even though defendant should have raised the objection in the trial court.
An instruction must be given only if it is supported by substantial evidence. Instructions on unsupported theories should not be given to the jury. (People v. Marshall (1997) 15 Cal.4th 1, 39-40.) Doubts as to the sufficiency of evidence warranting an instruction should be resolved in favor of the defendant. (People v. Duckett (1984) 162 Cal.App.3d 1115, 1125.) Here, the trial court correctly determined that the evidence supported flight instruction, CALJIC No. 372.
CALJIC No. 372, as read to the jury, states: "If the defendant fled immediately after the crime was committed or after he was accused of committing the crime, that conduct may show that he was aware of his guilt. If you conclude that the defendant fled or tried to flee, its up to you to decide the meaning or importance of that conduct; however, evidence that the defendant fled cannot prove guilt by itself."
Section 1127c provides that such an instruction should be given "[i]n any criminal trial or proceeding where evidence of flight of a defendant is relied upon as tending to show guilt." (§ 1127c.) A flight instruction should be given if there is evidence identifying the defendant as the perpetrator who fled, and if such evidence tends to show guilt. (People v. Abilez (2007) 41 Cal.4th 472, 521-522.) There need not be evidence of "`the physical act of running" or escape to a distant haven. (People v. Visciotti (1992) 2 Cal.4th 1, 60.) "`Flight manifestly does require, however, a purpose to avoid being observed or arrested." (Ibid.)
Defendant argues there was insufficient evidence of the flight instruction because the only evidence of flight was defendants uncorroborated statement that he left his black bag in the store when he heard someone approaching, and got scared and fled. Defendant asserts that since there was no evidence corroborating defendants statement, the statement should not have been considered. As stated above, we reject defendants argument that his statement was inadmissible, uncorroborated evidence. There was sufficient evidence corroborating his statement for purposes of admissibility of the statement at trial.
We also reject defendants argument that there was no independent evidence of flight. A reasonable inference of flight can be drawn from evidence defendant left his bag in the store, that he abandoned his bag in the store because he left in a rush, fearing he was about to be caught in the act of stealing. We conclude there was sufficient evidence to support the flight instruction, including both defendants statement and corroborating evidence.
7. Motion to Strike Priors
The trial court found true defendants four prior strike convictions. At the sentencing hearing, defendant moved to dismiss one or more of his prior strikes under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). The court denied defendants motion and sentenced him to an aggregate term of 25 years to life in prison.
Defendant argues the trial court abused its discretion by not dismissing one or more of defendants four strike priors under Romero, supra, 13 Cal.4th 497. Defendant claims the trial court misunderstood its discretion and thus applied the wrong standard by denying defendants Romero motion based solely on defendants criminal history and on the assumption this court would reverse a ruling dismissing a prior. Defendant complains that the trial court failed to consider other individualized factors, such as his age (55 years old), his health, his good character as a care provider for his family, the lack of violence or weapon use, the relatively minor nature of the current offenses, and the lack of evidence supporting defendants convictions, other than his own statement.
During the hearing on defendants Romero motion, defendants sisters, Linda McDaniels and Barbara Allen, informed the court that defendant was not well. He had had a heart attack and therefore incarcerating him would be detrimental to his health. In addition, defendant had helped McDaniels care for their mother, who recently died, and defendants sisters wanted defendant to live with them and help them with maintaining their family home in Mead Valley. The sisters claimed they would help him get employment and supervise him.
Defendants criminal history began in 1976, with convictions for forgery (§ 470) and battery (§ 242). In 1985, he was convicted of receiving stolen property (§ 496) and false identification to a peace officer, a misdemeanor (§ 148.9, subd. (a)). In 1989, defendant was convicted of first degree burglary (§ 459). Defendant was paroled in 1991, and returned to custody twice before being discharged in 1994. Eight months later he was convicted of receiving stolen property (§ 496). One year later defendants probation was revoked and he was sent to state prison. Defendant committed additional felonies in 1995, including first degree burglary (§ 459), attempted first degree burglary (§ 664/459), second degree burglary (§ 459), and assault with a deadly weapon (§ 245). Defendant was sentenced to 11 years in state prison. A little over a year after his discharge, he committed the instant crimes.
Defense counsel acknowledged that for most of defendants life, defendant had drug and alcohol problems, and as a consequence, had resorted to stealing. Counsel noted that defendants 1995 conviction for assault was his only act of violence and he had not been convicted of any crimes thereafter, other than the instant charged offenses in 2006. Defense counsel asserted that defendants circumstances fell within the spirit of Romero, particularly since his most recent convictions for burglary and theft were de minimis in nature.
In ruling on defendants Romero motion, the trial court stated that it agreed defendants most recent convictions were de minimis in nature and the court felt sympathy for his family. The trial court acknowledged it had the discretion to dismiss one or more of defendants strike priors but believed that if it did so, the ruling would not withstand appellate review. The court noted defendants prolific criminal history, his failure to overcome his drug and alcohol problems, and the likelihood defendant would soon end up in prison again after committing yet another crime. The trial court thus denied defendants Romero motion to dismiss his prior strike convictions.
Rulings on Romero motions are reviewed for abuse of discretion. (People v. Myers (1999) 69 Cal.App.4th 305, 309 (Myers).) Discretion is abused where the trial courts decision is "irrational or arbitrary." (Id. at p. 310.) Discretion is also abused when the trial courts decision to strike or not to strike a prior is based on improper reasons (Romero, supra, 13 Cal.4th at p. 531) or the decision is not in conformity with the spirit of the law (People v. Williams (1998) 17 Cal.4th 148, 161 (Williams); Myers at p. 310.)
"It 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 courts ruling, even if we might have ruled differently in the first instance. [Citation.]" (Myers, supra, 69 Cal.App.4th at p. 310.) Once the trial court has exercised its discretion and does not strike a prior conviction, this courts role on appeal is very limited. Thus, it would be a rare case in which the trial court could abuse its discretion in declining to strike a prior conviction of a recidivist offender.
The touchstone of the analysis must be "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 schemes 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 148, 161; see also People v. Garcia (1999) 20 Cal.4th 490, 498-499.)
Here, the trial court made it clear it understood the scope of its discretion. The fact that the trial court recognized that reversal was likely if it dismissed one of defendants prior strike convictions simply indicates the court recognized there was insufficient grounds for granting defendants Romero motion. The record shows the trial court considered the totality of the circumstances.
Despite the relatively minor nature of defendants most recent crimes, there was no abuse of discretion in the trial court rejecting defendants Romero request, given his lengthy criminal history, his parole and probation violations, the seriousness of his past offenses and his seemingly dim prospects for rehabilitation based on his underlying drug addiction and alcohol problems, his lack of meaningful crime-free periods, and defendants risk of reoffending.
8. Reducing Defendants Felony Charges to Misdemeanors
Defendant contends the trial court abused its discretion in denying defendants request to reduce his felony charges for burglary and theft to misdemeanors under section 17, subdivision (b).
Defendants current charges for second degree burglary and theft with a prior are punishable by imprisonment either in state prison or in a county jail. (§§ 461, 490.6, 666.) These offenses are thus "wobblers," and even if the offenses are charged as felonies, the trial court has broad discretion to reduce them to misdemeanors at the time of sentencing. (§ 17, subd. (b); People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 974, 976-977 (Alvarez).) The courts decision will be reversed only if its decision was arbitrary or irrational. Even if reasonable people might disagree whether legitimate sentencing objectives call for reduction of a sentence, the appellate court will not substitute its judgment for that of the trial court. (Alvarez, supra, at pp. 977-978.)
Here, the trial court stated it declined to reduce the offenses to misdemeanors because, "without the prior extensive criminal history, this is a case which in the Courts opinion cries out for a 17 (B) reduction, but the prior extensive criminal history shows that this is a situation in which the defendant poses a continual threat to the community. He is going to continue his past habit pattern of committing theft-related offenses over and over and over. And hes going to be right back here shortly after he is released. In any event, we have the same problem facing us. [¶] So by reason of his past and clear indication to the Court that he is real committed to this type of criminal activity, he will be back before us again, and well be even faced with the same situation before the year of his release has passed. Even though I agree, its pretty close to 17 (B) type activity, when you talk about minimal amounts involved, rolls of pennies, et cetera, lottery tickets, the pattern of his criminal history, repetitive matter, the Court declines to exercise its 17 (B) discretion and the motion pursuant to 17 (B) is noted and denied."
Citing Alvarez, supra, 14 Cal.4th at page 978, defendant argues that the trial court was required to consider not only defendants criminal history, but also the nature and circumstances of the offenses, his appreciation of and attitude toward the offenses, his traits and character as evidenced by his conduct and demeanor at trial, and public safety. Defendant claims that the court failed to consider his age, his cooperation with police, his health, the de minimis nature of the charges, one of which was subject to a section 654 stay, and that his criminal history merely consisted of old, periodic incidents.
Alvarez requires the court to consider those sentencing factors which are relevant, including "when appropriate," the general objectives of sentencing, such as those set forth in California Rules of Court, rule 4. 410. (Alvarez, supra, 14 Cal.4th at pp. 978, 981.) The trial courts general sentencing discretion includes the discretion to determine which factors are relevant, and which predominate. (See id. at pp. 978-980, 981-982.)
Here, the record reflects the trial court exercised its discretion appropriately in this regard. The court weighed the relatively de minimis nature of the offenses against factors which included, not only defendants criminal history, but also his addiction to drugs, his failure to rehabilitate, the great likelihood defendant would commit another crime and be back before the court within a year of his release, defendants inability to avoid committing crimes, and defendants inability to stay out of prison for most of his adult life. The trial courts conclusion that these factors outweighed other considerations, such as defendants cooperation with law enforcement and the de minimis nature of his crimes, was neither arbitrary nor irrational. We find no abuse of discretion in the courts determination that defendants conduct constituted felonies rather than misdemeanors.
9. Cruel and Unusual Punishment
Defendant argues that his 25-years-to-life sentence under the Three Strikes law constitutes cruel and unusual punishment under the state and federal Constitutions because his crimes did not result in any harm, violence, or actual loss of property. Defendant was convicted of second degree burglary and theft with a prior for entering a closed store at night and taking $96 worth of lottery tickets and pennies totaling $23.50. Defendant left the stolen property in the store due to fleeing in fear of being apprehended. Defendant contends his sentence is grossly disproportionate to the offenses for which it is imposed. (Rummel v. Estelle (1980) 445 U.S. 263, 281; People v. Dillon (1983) 34 Cal.3d 441, 478-479.)
A majority of the United States Supreme Court held in Ewing v. California (2003) 538 U.S. 11, 30, that the federal Constitution contains a narrow proportionality principle that prohibits sentences that are grossly disproportionate. The court held the Eighth Amendment did not prohibit a sentence under Californias Three Strikes law of 25 years to life for a defendant who shoplifted golf clubs worth about $1,200, because seven years earlier the defendant had been convicted of three residential burglaries and one first degree robbery. (Id. at pp. 17-18, 29-30.) The United States Supreme Court also held in Lockyer v. Andrade (2003) 538 U.S. 63, 73, 77, that a sentence of 50 years to life for theft of $150 worth of videotapes was not grossly disproportionate to the crime and the defendants criminal history.
Comparing defendants current crime and his criminal history with those of the defendants in Ewing and Andrade, we cannot say that defendants sentence is grossly disproportionate to his criminal culpability so as to constitute cruel and unusual punishment under the United States Constitutions.
Likewise, defendants sentence does not constitute cruel and unusual punishment under the California constitution. Defendants sentence is not so disproportionate to defendants crimes that "it shocks the conscience and offends fundamental notions of human dignity." (In re Lynch (1972) 8 Cal.3d 410, 424; see also People v. Cline (1998) 60 Cal.App.4th 1327, 1338; see also People v. Goodwin (1997) 59 Cal.App.4th 1084, 1094.)
10. Staying Sentence on Petty Theft
The trial court imposed concurrent sentences for burglary and theft with a prior. Defendant contends that under section 654 the trial court should have stayed his sentence for theft with a prior because his convictions were based on the same continuing course of conduct.
Section 654 "precludes multiple punishment for a single act or omission, or an indivisible course of conduct." (People v. Deloza (1998) 18 Cal.4th 585, 591.) Whether a course of conduct is divisible depends on the "intent and objective" of the actor (Neal v. State of California (1960) 55 Cal.2d 11, 19), not the temporal proximity of the offenses. (In re Hayes (1969) 70 Cal.2d 604, 609.) If all of the offenses were incident to one objective, then the defendant may be punished for only one offense. (Neal, supra, at p. 19.) "If, however, the defendant had multiple or simultaneous objectives, independent of and not merely incidental to each other, the defendant may be punished for each violation committed in pursuit of each objective even though the violations share common acts or were parts of an otherwise indivisible course of conduct. [Citation.]" (People v. Cleveland (2001) 87 Cal.App.4th 263, 267-268.) An appellate court must uphold a trial courts decision if its findings on this question are supported by any substantial evidence. (People v. Ratcliff (1990) 223 Cal.App.3d 1401, 1408.)
Here, imposition of concurrent sentences for the burglary and theft convictions is supported by substantial evidence. There was evidence that defendant entertained multiple objectives which were independent of and not merely incidental to each other. Defendant could therefore be punished for the independent violations committed in pursuit of each objective even though the violations were part of an otherwise indivisible course of conduct. (People v. Perez (1979) 23 Cal.3d 545, 551.)
According to defendants statement to Officer Hamilton, he entered the closed, unoccupied store to take some lottery tickets. After committing this crime of burglary, defendant noticed some pennies and decided to take them. Defendants statement supported the finding that the theft of the pennies was a newly formed intent separate from defendants initial intent of entering the store to steal lottery tickets. Therefore, the theft and burglary offenses were separate crimes, involving independent objectives and intents, which could be punished by imposing concurrent sentences for each offense.
11. Disposition
The judgment is affirmed.
We concur:
King, J.
Miller, J. --------------- Notes: Unless otherwise noted, all statutory references are to the Penal Code.