Opinion
E042901.
2-18-2009
THE PEOPLE, Plaintiff and Respondent, v. ALEJANDRO HUERTA, Defendant and Appellant.
Sharon M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Rhonda Cartwright-Ladendorf and Heather F. Crawford, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published in Official Reports
I. INTRODUCTION
Defendant was charged with attempting to remove a firearm from a police officer (Pen. Code, §§ 664, 148, subds. (a), (c); count 1), resisting an executive officer by force or violence (Pen. Code, § 69; count 2), being a felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1); count 3), and being a felon carrying a loaded firearm (Pen. Code, § 12031, subd. (a)(1); count 4). It was further alleged that defendant had five prior strike convictions. (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d).)
The jury was unable to reach a verdict on count 1 and a mistrial was declared on that count. In count 2, the jury found defendant guilty of the lesser included offense of resisting an officer in the performance of his duties, a misdemeanor. (Pen. Code, § 148, subd. (a).) In counts 3 and 4, defendant was found guilty as charged.
The court found the five prior strike allegations true, and denied defendants motion to reduce his felony offenses to misdemeanors for sentencing purposes and strike the prior strikes in the interest of justice. Defendant was sentenced to 25 years to life, consisting of 25 years to life on count 3 and a concurrent term of 25 years to life on count 4. He was sentenced to 365 days in local custody for his misdemeanor conviction in count 2.
Defendant appeals. First, he claims the trial court violated Evidence Code section 1101, subdivision (a), section 352, and his due process rights in admitting evidence he was known to carry firearms and was on parole for two firearm-related offenses. We conclude this evidence was properly admitted. Defendant further claims the trial court erroneously admitted two photographs of the front and back of his torso which showed he had numerous gang-related tattoos and a hand holding a gun on his right shoulder. We agree that the photographs were erroneously admitted but conclude their admission was harmless. (People v. Watson (1956) 46 Cal.2d 818, 836.)
All further statutory references are to the Evidence Code unless otherwise indicated.
Third, defendant claims the prosecutor committed Griffin/Doyle error in cross-examining him and in closing argument. Fourth, he claims the use of an electronic stun belt on him during a critical part of the trial violated his constitutional rights to counsel, due process, and freedom from cruel and unusual punishment. Fifth, he claims the trial court abused its discretion in refusing to reduce his current felony offenses to misdemeanors and strike his five prior strike convictions for purposes of sentencing. Sixth and finally, he claims his 25-year-to-life sentences on counts 3 and 4 constituted cruel and/or unusual punishment under the federal and state Constitutions. We disagree with defendant on each of these claims. Accordingly, we affirm the judgment.
Griffin v. California (1965) 380 U.S. 609 (Griffin); Doyle v. Ohio (1976) 426 U.S. 610 (Doyle).
II. OVERVIEW OF EVIDENCE PRESENTED AT TRIAL
A. Prosecution Evidence
Around 6:00 p.m. on February 10, 2005, Chino police gang investigators Daniel Gonzalez and Michael Sandoval were on patrol in a marked police car near the 5900 block of Schaefer Avenue in Chino, when they saw a green Toyota Camry traveling in the opposite direction and playing loud bass music in violation of Vehicle Code section 27007. Officer Gonzalez made a U-turn and caught up with the Camry as it stopped at a red light. A records check indicated that the Camry had an expired registration in violation of Vehicle Code section 4000, subdivision (a).
Officer Gonzalez fully activated his overhead patrol lights to initiate a traffic stop. When the light turned green, the driver of the Camry accelerated to about 15 miles per hour and drove in the left lane of the road for at least 100 yards without indicating any intention of pulling over. The officers thought the slow speed was odd because the posted speed limit was 45 miles per hour. Also, traffic was light and the driver had ample room to safely pull over. Given the circumstances, Officer Gonzalez considered the possibility that the driver had seen the patrol lights and was either planning to flee or was purposely stalling in order to hide or retrieve something.
After driving 100 yards from the traffic signal, the driver of the Camry moved to the right lane and then toward the curb, but continued driving slowly for about another 200 yards before finally pulling over to the right shoulder. Having conducted thousands of traffic stops, both officers thought an unusually lengthy period of time had passed before the driver finally stopped. Officer Gonzalez parked his patrol car behind the left rear of the Camry to provide protection from oncoming motorists. The officers could not see any occupants of the Camry because the cars windows were tinted and it was dark outside. As they approached the Camry, the officers activated audio recorders on their utility belts. An audiotape of the officers encounter with defendant was played to the jury.
As Officer Gonzalez approached the drivers side of the Camry, Officer Sandoval removed his gun from its holster and took cover by a nearby tree. Officer Gonzalez twice asked the driver, later determined to be defendant, to roll down his windows, and defendant complied. Officer Sandoval returned his gun to its holster and approached the passenger side of the Camry, after he saw that defendant was the only occupant of the Camry. Officer Gonzalez asked defendant why he had taken so long to pull over, and defendant responded that he did not see the patrol lights. Officer Gonzalez did not believe defendant. He believed that if defendant had not seen the patrol lights he would not have been driving 15 miles per hour in a 45-mile-per-hour zone in light traffic.
Officer Gonzalez told defendant he had stopped him for two reasons: playing his music too loudly and driving with an expired registration. Officer Gonzalez obtained defendants drivers license and handed it to Officer Sandoval who, using a handheld radio, called police dispatch and ran a records check on defendant. Defendant appeared "unusually nervous" and was "very fidgety," so Officer Gonzalez asked him to keep his hands on the steering wheel. Defendant initially complied, but kept reaching toward his lap area and had to be asked several times to put his hands back on the steering wheel. Officer Gonzalez thought something was wrong and asked defendant to hand over his car keys.
Officer Gonzalez asked defendant whether he had ever been arrested. Defendant replied he had been arrested once, in 1996, for methamphetamine possession. Officer Gonzalez then asked defendant whether he had taken any drugs or had any medical problems. Defendant said he had no medical problems, offered to take a drug test, and said he was "clean" because he was on parole. Knowing that being on parole indicates a person had spent time in state prison for committing a serious felony offense, Officer Gonzalez believed defendant was lying about having been arrested only "once" for a drug offense, and told him so. The officer also believed defendant had initially tried to hide the fact he was on parole, because he did not immediately disclose his parole status and the officer knew that defendants parole officer would have instructed him to do so.
Officer Gonzalez next asked defendant whether he possessed anything illegal. Defendant hesitated, then replied, "Nah, Officer." Intending to conduct a parole search, Officer Gonzalez told defendant to get out of the car and defendant did so. Officer Gonzalez twice asked defendant to interlace his fingers and put his hands on his head before defendant finally complied. The officer then grabbed defendants hands and the back of his pants and began escorting him to the area behind the Camry.
At that point, defendant "explosively and violently" threw his hands down and broke free from Officer Gonzalezs grasp. Defendant tried to run, but the officer was still holding him from the back of his pants. Defendant bent over and began reaching toward his waistband, which was covered by a baggy shirt. Suspecting defendant might be carrying a gun, Officer Gonzalez tried to turn defendant by his shoulder to see what he was doing. Defendant spun around and grabbed onto Officer Gonzalezs holstered handgun with both hands, pulling it with enough force to cause the officers leg to lift from the ground. Defendant was unable to remove the handgun, however, because it was locked into its holster.
Officer Sandoval began running toward defendant and Officer Gonzalez. From his vantage point, Officer Sandoval was unable to see whether defendant had Officer Gonzalezs gun. Officer Gonzalez wrestled defendant to the ground and tried to handcuff him, but defendant kept reaching for his waistband and trying to stand up. Officer Gonzalez kneed defendant in the head in an attempt to subdue him. Defendant continued trying to get up and reach for his waistband. Officer Sandoval struck defendant in the head with his flashlight and subsequently dropped the flashlight.
Defendant continued to resist as both officers repeatedly ordered him to stop and put his hands behind his back. Defendant kept saying his hands were "under" his back but never complied with the officers orders to stop resisting and place his hands on his head. At some point, Officer Gonzalez hit defendant with his hand, and Officer Sandoval hit defendant in the arm and chest in an attempt to get him to remove his right arm from under his waistband. Around 6:06 p.m., Officer Sandoval radioed for emergency police assistance. Officer Gonzalez also pulled out his handheld radio to try to report the fight.
As defendant continued to resist, Officer Gonzalez saw him focus on something in the direction of the Camry. Officer Gonzalez looked in that direction and saw a gun lying on the ground near defendants car. The officer shouted that defendant had a gun and struck him in the forehead with his handheld radio. Officer Sandovals flashlight was lying on the ground, illuminating the gun. Officer Sandoval drew his gun and pointed it at defendants head, threatening to shoot him if he kept resisting. At that point, the officers were able to control defendant.
The gun the officers observed on the ground near defendants car was a .32-caliber pistol. It was loaded and "cocked" with a round in the chamber. It was unregistered and did not appear as though it had been on the ground for any length of time. No fingerprints were found on the pistol, magazine, or bullets.
Defendants parole officer, David Garcia, testified that parole is an extension of a state prison sentence and typically lasts from one to four years. He said he routinely instructs parolees to immediately announce their parole status upon coming into contact with any police officer. At the time in question, defendant was on parole for being an ex-felon in possession of a firearm.
On the day of the incident, Officer Gonzalez stood about six feet tall and Officer Sandoval stood about six feet three inches tall. Both officers weighed at least 200 pounds. Defendant stood five feet five inches tall and weighed 160 pounds.
B. Defense Evidence
Defendant testified he spent seven years in state prison beginning in 1996, when he was 19 or 20 years old. At the time of his arrest on February 10, 2005, he was living with his parents and family in Chino Hills; in 1996, he was living in Santa Ana with a group of friends. The Camry he was driving belonged to his sister. When the officers stopped him in the Camry, he was on his way to his sisters house to drop off the car. He was aware that its registration had expired, and his sister was going to park it until she renewed the registration.
As defendant was driving, his drivers side window was open when he noticed a police car driving in the opposite direction. He knew the officers had looked his way, but he initially thought nothing of it. He saw the police car make a U-turn, and after he went through the intersection he also saw that the police cars patrol lights were flashing. Still, he did not immediately realize the police were pulling him over. He denied driving slowly or neglecting to immediately pull over once he realized he was being pulled over. He did not hear Officer Gonzalezs first request to roll down his drivers side window because, at that point, his window was closed. He had no weapons or guns in the car or on his person.
When Officer Gonzalez approached the drivers side of the Camry, defendant noticed that the officers demeanor was "a little bit pushy." At first, defendant did not mention he was on parole because he believed he was not required to do so for a traffic stop. Still, he told the officer he was on parole after the officer kept "pushing" him. According to defendant, the officers demeanor was "escalating," even though he was complying with all of the officers directives. He claimed he told the officer the truth about being arrested once for drug possession, but on cross-examination admitted this was a lie.
Defendant also claimed he did not hear Officer Gonzalezs first order to interlace his fingers. He also denied trying to escape, and said he pulled his hands away from Officer Gonzalez because the officers grip was painful. Pulling away from the officer caused him to lose his balance and "hit" Officer Gonzalez with his shoulder before he fell to the ground. He grabbed onto Officer Gonzalezs leg to protect himself after the officer kneed him "a couple times." He did not try to grab the officers holstered handgun. He sustained a knot on his forehead that required no stitches or prescription pain medication. He did not feel his life was endangered until a gun was placed to the back of his head. He claimed he had no gun in his waistband. He was unaware that a gun was recovered from near his car until he read his parole report.
C. Prosecution Rebuttal
San Bernardino County Sheriffs Corporal Michael Siegfried was an instructor on firearms and defensive tactics at the San Bernardino County Sheriffs Academy. He opined that an officer faced with a suspect attempting to take his firearm would be justified in using deadly force, and no warning would be required before deadly force was used.
Corporal Siegfried also testified that officers are trained at the academy that some potentially deadly situations require them to be creative in order to survive. For example, officers are trained to use "weapons of opportunity," including radios and flashlights, if necessary, to repel a suspects use of deadly force. Officers are also instructed that a suspects physical size is not determinative of his commitment to fight.
III. DISCUSSION
A. Evidence That Defendant Was Known to Carry Firearms and Was on Parole for Two Firearm-Related Crimes Was Properly Admitted
Defendant claims the trial court erroneously admitted the following two items of evidence in violation of section 1101, subdivision (a), section 352, and his due process rights, namely: (1) testimony from his parole officer, David Garcia, that he had a notation in his parole file indicating that defendant was known to carry firearms; and (2) evidence that defendant was on parole for two firearm-related crimes, namely, being a felon in possession of a firearm and carrying a concealed, loaded firearm.
We conclude that both items of evidence were properly admitted.
1. Background
The defense theory was that defendant did not possess or carry the loaded firearm the officers found on the ground near the car he was driving; instead, the officers planted the gun on the ground. To this end, the defense attempted to show that the officers were motivated to plant the gun on the ground because they believed defendant was a gang member and knew he was on parole. As part of this strategy, defense counsel attempted to create the impression that defendants criminal record consisted of a single conviction in 1996 for possessing methamphetamine, and this was the reason defendant was on parole. Additionally, and in furtherance of the position that the officers planted the gun at the scene, counsel submitted good character evidence that defendant did not have a reputation for possessing firearms.
In his opening statement, defense counsel told the jury the evidence would show that defendant did not resist arrest at the February 10, 2005, traffic stop; instead, he was only trying to protect himself from injury by an "overzealous, overanxious gang enforcement officer," namely, Officer Gonzalez. Defense counsel told the jury that the officers pulled defendant over not because he was playing loud music but because he was driving a "low Toyota with tinted windows," which was a "type of vehicle" that Hispanics or "gang people" typically drive, and in Officer Gonzalezs mind, "if youre Hispanic, youre a gang person." Defense counsel also told the jury: "My client is out on parole. Thats an obvious fact at this point. [¶] He was convicted of a felony of possession of methamphetamine in 1996. He was on parole. And he was doing fine. He didnt have any problems." Counsel later told the jury that once defendant revealed he was on parole, Officer Gonzalez took "advantage of it" and planted the gun on the ground.
Officer Gonzalez was the first witness to testify for the prosecution. He testified he believed that defendant was lying when he said he had been arrested only once, in 1996, for possessing methamphetamine. When defendant said he was on parole, that indicated to the officer that defendant had been convicted of a serious felony and sentenced to prison. In cross-examining the officer, defense counsel asked whether a person could be on parole for nonviolent offenses, including being under the influence of a drug. Officer Gonzalez said he did not believe that was possible unless the parolee had "a very violent criminal history." Continuing in this vein, defense counsel established, through Officer Gonzalez, that there are nonviolent offenses which an individual can commit only one time, be sentenced to prison, and later released on parole. These include drug offenses and felony drunk driving.
Later during her case-in-chief, the prosecutor called defendants parole officer, David Garcia. On direct examination, she asked Garcia: "Now, without telling us what the defendant is on parole for, is he on parole only for a drug offense?" Garcia responded, "No." Garcia further testified that, as a condition of his parole, defendant was not to possess, have access to, or own a firearm. If he was caught with a firearm he would be sent back to prison. As a result of the incident at the February 10, 2005, traffic stop, he was found to have violated his parole and was returned to prison. Garcia also testified on direct examination that his supervision of defendant was "pretty strict" and defendant could be searched at any time by a law enforcement officer.
In cross-examining Garcia, defense counsel attempted to show that defendant did not have a character trait for possessing or carrying firearms but instead had a "good" reputation for not carrying firearms. Defense counsel got Garcia to admit that, in conducting routine parole searches, he had never found a gun in defendants home or on his person. On redirect, the prosecutor established, over defense counsels objection, that there was a notation in defendants parole file that defendant was known to carry firearms. On recross, defense counsel established that 1996 was the last time defendant was known to carry firearms. Finally, on further redirect, Garcia testified, again over defense counsels objection, that defendant was on parole for "two controlling cases," namely, being a felon in possession of a firearm and carrying a concealed, loaded firearm.
Defense counsel objected to the admission of the prior crimes evidence outside the presence of the jury and after Garcia had concluded his testimony. Counsel argued that the testimony he elicited from Garcia, that Garcia had never found a firearm in defendants possession and defendant was last known to have carried a firearm in 1996, did not "open the door" to the evidence that defendant was on parole for two firearm-related offenses. The court disagreed. It ruled the defense had opened the door to the 1996 prior crimes evidence and generally observed that, several times during the trial, defense counsel made insinuations or pursued lines of questioning that allowed the prosecutor to introduce evidence that would have otherwise not been admitted.
By way of the above, defense counsel openly placed before the jury the notions that defendant was on parole for possession of drugs and did not have a history of carrying firearms. As indicated by the trial court, this "opened the door." As stated in People v. Zerillo (1950) 36 Cal.2d 222, 228 and 229, cross-examination "may be directed to the eliciting of any matter which may tend to overcome or qualify the effect of the testimony given by [the witness] on his direct examination. . . . [¶] `. . . He can be cross-examined with respect to facts or denials which are necessarily implied from the testimony in chief, as well as with respect to facts which he expressly states. [Citations.]" (See People v. Kynette (1940) 15 Cal.2d 731, 752-753 [cross-examination is proper in an effort to undermine the theory propounded by the opposing side], overruled on another point as stated in People v. Snyder (1958) 50 Cal.2d 190 & People v. Horn (1974) 12 Cal.3d 290.) Although the evidence of the notation in defendants parole file that he was known to carry firearms and the fact he was on parole for two firearm-related offenses would ordinarily have been inadmissible, for the reasons we explain, the evidence was properly admitted.
2. Analysis—The Parole File Notation Evidence
Defendant argues that the admission of Garcias cross-examination testimony that defendant was known to carry firearms as indicated by a notation in his parole file violated sections 1101, subdivision (a) and 352. The People submit that the testimony was properly admitted under section 1102, subdivision (b) to rebut the defense-adduced evidence, elicited through defense counsels cross-examination of Garcia, that Garcia had never found a gun in defendants home or in his possession, which supported an inference that defendant had a "good" reputation for not carrying firearms or was not known to be a person who carried firearms. We agree with the People that the parole file notation evidence was properly admitted under section 1102, subdivision (b).
Character evidence may take the form of an opinion, evidence of reputation, or specific acts of the persons conduct. (§ 1100.) Section 1101, subdivision (a) establishes a general rule that character evidence, in all its forms, is inadmissible to prove a persons conduct on a specific occasion. (People v. McFarland (2000) 78 Cal.App.4th 489, 493.) This general rule is subject to several statutory exceptions, including exceptions set forth in sections 1101, subdivision (b) and 1102. (§ 1101, subd. (a).)
Section 1102 applies to criminal actions and allows the admission of opinion and reputation evidence under certain circumstances, but the statute does not provide for the admission of specific acts evidence under any circumstances. (People v. Felix (1999) 70 Cal.App.4th 426, 431, citing People v. Wagner (1975) 13 Cal.3d 612, 618-619.) The statute provides: "In a criminal action, evidence of the defendants character or a trait of his character in the form of an opinion or evidence of his reputation is not made inadmissible by Section 1101 if such evidence is: [¶] (a) Offered by the defendant to prove his conduct in conformity with such character or trait of character. [¶] (b) Offered by the prosecution to rebut evidence adduced by the defendant under subdivision (a)." (Italics added.) (§ 1102.)
As indicated, defense counsel got Garcia to admit he had never found a firearm in defendants home or on his person. By eliciting this testimony, the defense was attempting to show that defendant was not known to carry firearms or had a "good" reputation for not carrying firearms. (§ 1102, subd. (a).)
We first note that, although the prosecution did not object to this defense-adduced "good" character testimony in the trial court, the evidence was arguably inadmissible under section 1102, subdivision (a) because it was based on Garcias personal knowledge of defendants nonpossession of firearms, rather than Garcias knowledge of defendants reputation for carrying or not carrying firearms. "`Reputation is not what a character witness may know about defendant. Reputation is the estimation in which an individual is held; in other words, the character imputed to an individual rather than what is actually known of him either by the witness or others. [Citation.]" (People v. Felix, supra, 70 Cal.App.4th at p. 430 [testimony that defendant had a reputation for using heroin "exceeded the scope" of section 1102 because it was based on the witnesss conversations with the defendant and personal knowledge of the defendants drug use, rather than on the witnesss knowledge of the defendants reputation for using heroin].) Nevertheless, the evidence was properly admitted because the prosecutor did not object to it. In addition, the evidence certainly created an impression that defendant had never been known to possess or carry firearms and did not have a reputation for carrying firearms.
In order to rebut this defense-adduced "good" character evidence or the inference that defendant was not known to carry firearms, the prosecutor properly elicited redirect testimony from Garcia that there was a notation in defendants parole file indicating that defendant was known to carry firearms. This testimony was properly admitted under section 1102, subdivision (b), because it tended to show that defendant had a "bad" reputation for carrying firearms or was known to carry firearms, and it was based on Garcias knowledge of defendants reputation for carrying firearms. (§ 1102, subd. (b).)
Finally, the trial court did not abuse its discretion in failing to exclude the parole file notation evidence under section 352. The probative value of the evidence on whether defendant had a reputation for carrying firearms was substantial, and the evidence did not tend to provoke an emotional bias against defendant as an individual. (People v. Samuels (2005) 36 Cal.4th 96, 124 [prejudice within the meaning of § 352 refers to evidence that tends to evoke an emotional bias against a party as an individual].) For the same reasons, the admission of the evidence did not violate defendants due process rights. (People v. Abilez (2007) 41 Cal.4th 472, 503 [application of ordinary rules of evidence does not violate due process clause unless it "`offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental"].)
3. Analysis—The 1996 Prior Crimes Evidence
As discussed, after the prosecutor established through her redirect examination of Garcia that there was a notation in defendants parole file indicating he was known to carry firearms, defense counsel elicited testimony from Garcia that 1996 was the last time defendant was known to carry firearms. On further redirect, the prosecutor then elicited testimony from Garcia that defendant was on parole for two "controlling cases," namely, two 1996 convictions for being a felon in possession of a firearm and possessing a concealed, loaded firearm. Defendant claims that the admission of the 1996 prior crimes evidence violated sections 1101, subdivision (a) and 352, because the evidence showed he had a propensity for possessing and carrying firearms and was highly prejudicial. We reject this claim.
We first observe that the prior crimes evidence constituted evidence of specific acts of misconduct on the part of defendant. As such, it was inadmissible as "bad" reputation evidence, under section 1102, subdivision (b), to rebut the defense-adduced "good" reputation evidence that defendant was not known for carrying firearms, as indicated by Garcias cross-examination testimony that he had never found a handgun in defendants possession or in his home. (People v. Felix, supra, 70 Cal.App.4th at p. 431, citing People v. Wagner, supra, 13 Cal.3d at pp. 618-619 [evidence of specific acts of misconduct is inadmissible to rebut a criminal defendants good character evidence under § 1102, subdivision (b) "`even though the defendant has opened the question by introducing evidence of his good character"].)
However, the 1996 prior crimes evidence was properly admitted to rebut the inference the defense brought out, during its earlier cross-examination of Officer Gonzalez, that defendant was on parole from state prison merely for having suffered a single conviction for possessing methamphetamine in 1996. As defendants parole officer, Garcia ostensibly had knowledge of the reasons defendant was on parole or the crimes for which he had been sentenced to prison, which defense counsel placed squarely in issue during his cross-examination of Officer Gonzalez. Accordingly, the prior crimes evidence was properly admitted. (People v. Rowland (1992) 4 Cal.4th 238, 260-261 [trial court reasonably determined that defendants proffered extrajudicial statement that he killed victim in fight over drugs, not during commission of rape, would have "opened the door" to evidence of defendants prior convictions for sodomy, lewd conduct, and oral copulation; under these circumstances, the prior crimes evidence was not more prejudicial than probative].)
Before trial, the court ruled that the nature of defendants prior convictions, including his 1996 firearm convictions, was inadmissible for impeachment purposes in the event defendant testified because the nature of the convictions was "over the top prejudicial" under section 352. Defense counsel, however, was unwilling to let the matter rest. Despite this favorable pretrial ruling, he attempted to turn the issue 180 degrees in favor of the defense by creating the false impression that defendant was on parole for a simple drug possession offense. In light of the defense strategy, we believe it was permissible for the prosecutor to introduce the prior crimes evidence in order to fight fire with fire, given that the fire was initially started by defense counsel.
Lastly, the admission of the prior crimes evidence did not violate defendants due process rights. (People v. Abilez, supra, 41 Cal.4th at p. 503 [application of ordinary rules of evidence does not violate due process clause unless it "`offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental"].) The evidence was not admitted to show defendant had a propensity to possess firearms, but to rebut defense-adduced evidence that defendant was on parole for possession of drugs. Because the evidence was admitted pursuant to long-standing evidentiary principles, there was no due process violation.
B. The Photographs of Defendants Torso, Showing Numerous Gang-related Tattoos on His Chest and Back and a Hand Holding a Gun on His Right Shoulder, Were Erroneously Admitted
Defendant claims the trial court erred in admitting two photographs of his torso, his arms, chest and back, showing numerous gang-related tattoos, as well as tattoos with individuals carrying and/or pointing guns. He argues the photographs were inadmissible character evidence and should have been excluded under section 352 because they were insufficiently probative of whether the officers used excessive force in arresting him, as the defense was claiming, and were highly prejudicial. We agree that the photographs were erroneously admitted.
1. Background
The photographs showed that defendant had numerous tattoos on his arms, chest, and back, including the letters "O and "C" on his chest, "South Side" on his back, and a hand holding a gun on his right shoulder. The photographs also showed several male figures on defendants back, all wearing sombreros and holding firearms. A larger, more prominent figure of a male was also shown in the middle of defendants back. The larger male figure was wearing a sombrero with defendants last name, "Huerta," written across the top of it, and was holding a firearm wearing an ammunition belt. The photographs also showed a tattoo of a hand holding a gun on defendants right shoulder.
Before trial, defendant moved to exclude the photographs on the ground they were more prejudicial than probative on the issue of whether the officers used excessive force in arresting him, as the defense was claiming. (§ 352.) The prosecutor argued that the photographs showed defendants injuries and lack of injuries, and a "multitude of research" indicated the photographs were relevant to show defendants injuries and lack of injuries. Defense counsel argued there were less prejudicial ways of demonstrating defendants injuries or lack of injuries without "showing gang-affiliated tattoos to a jury."
The photographs were taken at the hospital shortly after defendants arrest. They showed a significant injury on defendants forehead, apparently inflicted when defendant was struck with the officers flashlight or handheld radio. The photographs showed less significant injuries, or red marks, on the back of defendants head, chest, and stomach area, and no apparent injuries on his back. The red marks on defendants chest were partially obscured by the tattoos, but the red marks on his stomach area were fully visible.
The trial court agreed that the tattoos in the photographs were prejudicial, but ruled that the photographs were nevertheless admissible. The court agreed with the prosecutors argument that, if the defense was going to claim the officers used excessive force, the jury was entitled to see the "whole picture," or what defendants body looked like after his arrest. The court said it would be preferable if the tattoos could be removed from the photographs, although that did not appear to be practical. Still, the court said it was not going to require the prosecutor to call the emergency room doctor to describe the full extent of defendants injuries, as defense counsel suggested, because the photographs accurately depicted the extent of defendants injuries and lack of injuries. The photographs were admitted during the latter portion of the prosecutions case-in-chief, as Peoples exhibits 10 and 11, after the police detective who took the photographs testified to their authenticity and the injuries to defendant as shown in the photographs.
As discussed, under cross-examination by the prosecutor, defendant admitted he had a notation in his parole file indicating he was known to carry handguns, and that he was on parole at the time of the 2005 traffic stop for being a felon in possession of a firearm, for carrying a concealed, loaded firearm, and for "methamphetamine." He also admitted he lied when he told Officer Gonzalez he had been arrested only once, in 1996, for possessing methamphetamine.
After defendant admitted he was on parole for two firearm-related offenses, the prosecutor asked defendant whether it was "safe to say" he had "an affinity for firearms." In response, defendant said he could not be around guns. The prosecutor then asked defendant whether he had several tattoos, and showed him the previously-admitted photograph of the front of his torso which showed a tattoo of a hand holding a gun on his right shoulder. Defendant explained that the tattoo was part of his past. The prosecutor then asked: "It means youre a shooter. Doesnt it?" Defendant responded, "No, it doesnt."
During her initial closing argument the prosecutor did not allude to the tattoos for any purpose. During defense counsels argument, he stated: "The prosecutor showed you a tattoo. She didnt show you the tattoos because she wanted you to see the lack of injury to the body. She knows she doesnt have a strong case. So shes trying to influence and prejudice your minds. [¶] And she figures if she shows you tattoos, its going to make you think hes a real bad guy. . . . [¶] And because of all this, he had to have had a firearm." On rebuttal, the prosecutor responded: "The person with a tattoo on his shoulder of a gun pointing outward that signifies a shooter, thats the person who had the gun that night."
2. Analysis
In determining whether the photographs were properly admitted, we must determine (1) whether the photographs satisfied the relevancy requirement of section 210, and (2) if the photographs were relevant, whether the trial court abused its discretion in concluding that the probative value of the photographs was not substantially outweighed by the probability that their admission would create a substantial danger of undue prejudice under section 352. (People v. Heard (2003) 31 Cal.4th 946, 972.) Lastly, we consider whether the photographs were used by the prosecutor as impermissible character evidence. We address these issues in turn.
A trial court has broad discretion in determining the relevance of evidence but lacks discretion to admit irrelevant evidence. (People v. Heard, supra, 31 Cal.4th at p. 973.) Evidence is relevant if it has "any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action" (§ 210), or tends logically, naturally, and by reasonable inference to establish one or more material facts. (People v. Garceau (1993) 6 Cal.4th 140, 177.)
The trial court reasonably concluded that the photographs were relevant to whether the officers used excessive force in arresting defendant. The injuries and lack of injuries to defendants torso, as shown in the photographs, had some tendency in reason to show that the officers did not use excessive force in arresting defendant. Because the photographs corroborated this part of the officers testimony, by general implication they also tended to corroborate the officers additional testimony that they found the gun and did not plant it there, as the defense was claiming.
The relevancy of the photographs to the excessive force issue is generally analogous to the relevancy of crime scene photographs which tend to corroborate testimony concerning how the crime was committed. (See, e.g., People v. Scheid (1997) 16 Cal.4th 1, 14-15 [photographs of murder victims relevant to corroborate testimony concerning details of how the murders were committed]; People v. Crittenden (1994) 9 Cal.4th 83, 132-133 [photographs of murder victims relevant to clarify medical examiners testimony concerning manner in which victims were killed].)
Nevertheless, the relevance of the photographs to the excessive force issue and whether the officers planted the gun was minimal and was substantially outweighed by the prejudicial effect of the photographs. Many of the tattoos appeared to be gang related. As such, the photographs tended to evoke an emotional bias against defendant. (People v. Samuels, supra, 36 Cal.4th at p. 124 [prejudice within the meaning of § 352 refers to evidence that tends to evoke an emotional bias against a party as an individual, while having only slight probative value with regard to the issues].) In view of the highly prejudicial effect and minimal probative value of the photographs, the trial court abused its discretion in allowing them into evidence.
There were other photographs of only the front and back of defendants head which depicted the full extent of his significant injuries and did not show any tattoos. These photographs could have been used to show the full extent of the significant injuries defendant sustained. As noted, the injuries to defendants chest and stomach, as shown in Peoples exhibits 10 and 11, were minor and consisted only of several small red marks. It is also notable that the prosecution did not seek to admit any photographs of defendants legs. If, as it appears, there were no injuries on defendants legs, then photographs of his legs would have been just as relevant to show the full extent of defendants "lack of injuries" as the photograph of his back which showed no injuries but numerous prejudicial tattoos.
Additionally, the photographs were used by the prosecution as impermissible character evidence. At no time were the photographs ever used for the ostensible purpose of showing "lack of injury" to defendant. Their sole use was to establish that defendant had "an affinity" for firearms and was a "shooter." As such, it was error to admit the photographs into evidence.
C. The Photographs of Defendants Torso and the Gun Tattoo Evidence Was Harmless
As noted, defendant was charged in count 1 with attempting to remove a firearm from a police officer, but a mistrial was declared on count 1 after the jury was unable to reach a verdict on that count. In count 2, defendant was charged with forcibly resisting an executive officer, but was convicted of the lesser included offense of resisting an officer in the performance of his duties. In counts 3 and 4, defendant was charged with being a felon in possession of a firearm and being a felon carrying a loaded firearm, respectively, and was found guilty as charged on those counts.
The verdicts on counts 1 and 2 indicate the jury did not unanimously agree that defendant attempted to remove the gun from Officer Gonzalezs holster or that he used force in resisting the officers, but the verdicts on counts 3 and 4 indicate the jury unanimously agreed that defendant possessed the gun the officers found on the ground. Thus, the question is whether there is a reasonable probability defendant would have realized a more favorable result on counts 3 and 4 had the photographs of his torso and gun tattoo evidence been excluded. We conclude there is no such reasonable probability. (People v. Watson, supra, 46 Cal.2d at p. 836.)
Clearly, defendants prior involvement with guns could have had an impact on the jurys determination whether defendant possessed the gun in question. The jury heard that as of 1996 defendant was known to carry firearms and had been convicted of two firearm-related offenses in 1996. The jury thus knew of defendants prior involvement with guns. But for the reasons discussed, both of these items of evidence were properly admitted. Thus, the fact that the photographs were erroneously admitted and used for an improper purpose added nothing to the jurys knowledge of defendants prior involvement with firearms. It is primarily for this reason that we believe the error was harmless.
Additionally, the evidence concerning the events that occurred at the traffic stop indicated that defendant was trying to hide a gun in his waistband. The officers testified that after they activated their patrol lights and began following defendant in their patrol car, defendant drove approximately 15 miles per hour in a 45-mile-per-hour zone, in light traffic, for as much as 300 yards before he finally pulled over. When Officer Gonzalez spoke to defendant at the drivers side window of the Camry, defendant appeared "unusually nervous" and "very fidgety," so the officer asked him to keep his hands on the steering wheel. Defendant initially complied, but kept reaching toward his lap and had to be asked several times to keep his hands on the steering wheel. Defendant also hesitated when Officer Gonzalez asked him whether he possessed anything illegal, and had to be asked twice to put his hands on his head and interlace his fingers after the officer directed him to get out of the Camry.
Defendants explanation that he did not immediately see the officers patrol lights or realize they were attempting to pull him over was not credible in view of defendants admission that he saw the officers make a U-turn and begin following him long before defendant finally pulled over. As Officer Gonzalez testified, it was unlikely defendant would have driven so slowly for so long in light traffic unless he had seen the patrol lights.
After defendant got out of the Camry and Officer Gonzalez was escorting him to the back of the Camry, defendant threw his hands down, broke free from the officers grasp, and tried to flee. As the officer held onto the back of defendants pants, defendant kept reaching toward his waistband, which was covered by a baggy shirt. Then, while the officers were trying to subdue defendant, Officer Gonzalez noticed that defendant was focusing on something in the direction of the Camry. At that point, the officer saw a gun on the ground near the drivers side of the Camry. The audiotape of the officers encounter with defendant corroborated Officer Gonzalezs testimony that he saw the gun after he noticed defendant looking back in the direction of the Camry, because it showed the officer suddenly shouted that defendant had a gun.
Moreover and as discussed, the evidence that defendant was known to carry firearms, as evidenced by the notation in his parole file, and the evidence that he had been convicted in 1996 of being a felon in possession of a firearm and carrying a concealed, loaded firearm, was properly admitted, and bolstered the inference that defendant possessed the gun found on the ground and was trying to hide that gun at the time of the traffic stop.
Given the strength of the evidence that defendant possessed the gun found on the ground, it is not reasonably probable that defendant would have realized a more favorable result on counts 3 and 4 had the photographs of his torso, showing his numerous gang-related tattoos and gun tattoo, been excluded. Indeed, it is more likely that the gun tattoo had no effect on the verdicts in view of the properly admitted and more compelling evidence that defendant had a reputation for carrying firearms and also had two prior convictions for possessing firearms. For the same reasons, the gang-related tattoos likely had little effect on the jurys determination that defendant possessed the gun in question.
D. The Prosecutor Did Not Commit Griffin/Doyle Error
Next, defendant claims the prosecutor committed Griffin/Doyle error, that is, the prosecutor violated defendants right to silence and to counsel, when she asked him on cross-examination: "So you never mentioned to anybody that that wasnt your gun?," referring to the gun the officers found on the ground near the car defendant was driving. The prosecutor also referred to defendants postarrest silence during closing argument, when she said to the jury: "Dont you think if someone put a gun there you would have said at the time, hey, what are you talking about[?]"
Preliminarily, the People argue that defendant has forfeited this claim on appeal, because his defense counsel raised no objection in the trial court, either when the prosecutor asked defendant on cross-examination why he did not tell anyone the gun was not his, or when the prosecutor referred to defendants postarrest silence during her closing argument. Assuming, without deciding, that defendant has not forfeited the claim, we find no error.
Under Griffin, the prosecutions argument or comment that a defendants failure to testify at trial constitutes evidence of his guilt violates the defendants Fifth Amendment right to remain silent. (Griffin, supra, 380 U.S. at pp. 613-614.) Here there was no Griffin error because defendant testified at trial and the prosecutor was not commenting on his failure to testify, but on his silence immediately following his arrest.
Under Doyle, the prosecution may not impeach a defendants trial testimony with evidence of the defendants silence, after the defendant, having been advised of his right to remain silent under Miranda, chooses to remain silent. (Doyle, supra, 426 U.S. at p. 619.) The Doyle court observed: "[W]hile it is true that the Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings. In such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested persons silence to be used to impeach an explanation subsequently offered at trial." (Id. at p. 618, fn. omitted.) Doyle does not prohibit the use of a defendants postarrest but pre-Miranda silence to impeach his trial testimony. (Fletcher v. Weir (1982) 455 U.S. 603, 607; People v. Earp (1999) 20 Cal.4th 826, 856-857; People v. Delgado (1992) 10 Cal.App.4th 1837, 1841-1842.)
Miranda v. Arizona (1969) 884 U.S. 436 (Miranda).
Here, there was no Doyle error because the prosecutor did not question defendant about his post-Miranda silence. Nor did she refer to his post-Miranda silence during closing argument. Instead, she properly questioned defendant concerning his pre-Miranda silence, during the period after the officers subdued him and he was seated on the curb waiting to be transported from the scene. At that point, defendant had presumably heard the officers had found the gun on the ground, because Officer Gonzalez shouted, "Hes got a gun," while he was still struggling with defendant. Specifically, the prosecutor cross-examined defendant concerning why he did not tell the officers that he did not try to grab Officer Gonzalezs gun, or that the gun found on the ground was not his. In response, defendant said he did not hear Officer Gonzalez say that he (defendant) tried to grab the officers gun; he did not hear the officer yell that he (defendant) had a gun; and he was hit on the head and was dazed and did not know about the gun on the ground until he read his parole report. Similarly, in closing argument, the prosecutor focused on defendants silence in the face of the officers pre-Miranda statements, in defendants presence, that defendant grabbed the officers gun and possessed the gun the officers found on the ground.
E. The Use of the Stun Belt on Defendant Was Justified By a Manifest Need
Defendant claims the trial courts use of a stun belt on defendant, beginning on the second day of trial, was not supported by a "manifest need" and, accordingly, impaired his constitutional rights to counsel, due process of law, and to be free of cruel and unusual punishment. We conclude that the use of the stun belt was supported by a manifest need and justified under the circumstances.
"`The type of stun belt which is used while a prisoner is in the courtroom consists of a four-inch-wide elastic band, which is worn underneath the prisoners clothing. This band wraps around the prisoners waist and is secured by a [hook-and-loop] fastener. The belt is powered by two 9-volt batteries connected to prongs which are attached to the wearer over the left kidney region . . . .[]
"`The stun belt will deliver an eight-second, 50,000-volt electric shock if activated by a remote transmitter which is controlled by an attending officer. The shock contains enough amperage to immobilize a person temporarily and cause muscular weakness for approximately 30 to 45 minutes. The wearer is generally knocked to the ground by the shock and shakes uncontrollably. Activation may also cause immediate and uncontrolled defecation and urination, and the belts metal prongs may leave welts on the wearers skin requiring as long as six months to heal. An electrical jolt of this magnitude causes temporary debilitating pain and may cause some wearers to suffer heartbeat irregularities or seizures. [Citations.]" (People v. Mar (2002) 28 Cal.4th 1201, 1214-1215, fn. omitted.)
1. Relevant Background
On the second day of trial and outside the presence of the jury, the prosecutor asked that defendant be fitted with a "shock belt" or stun belt. The prosecutor related that courtroom spectators had flashed what appeared to be "gang signs" and a "thumbs up" sign at defendant, possibly indicating an intention to break defendant out of custody. The prosecutor also claimed that, on the previous Friday, four days earlier, defendant was found with a "kite" or small note that included razor blades. More recently, a second "kite" had been found in his possession. The kites indicated defendant posed a "serious security risk." Defense counsel objected to the use of the stun belt on the grounds defendant had not been disruptive in the courtroom, he was not aware of what signs had been flashed to him behind his back, and he had not possessed any razor blades.
The court asked two bailiffs to testify concerning what they had observed in the courtroom. One deputy testified that, on the previous day and as the audience was leaving, an older woman looked in defendants direction when he was "facing out" and gave him a "thumbs up" sign. After the woman gave the sign, the deputy confronted the woman in the hallway. The court directed that the woman be excluded from the trial.
A second deputy testified that, on the previous day, he saw a gentleman look in defendants direction and "ma[k]e some hand gestures." He was uncertain what hand gestures were made, but it "appeared there was attempted communication" between the man and defendant. The court directed that the man be excluded from the trial. The second deputy also testified concerning what happened in "lock-up" on the morning of the second day of trial. When the deputy conducted a patdown search of defendant before he changed into his suit, he found a small note wrapped in cellophane with writing on it, tucked in the drawstring area of defendants waistband.
A third deputy testified concerning what had occurred in "lock-up" on the previous Friday, four days earlier. The third deputy saw another inmate "kick something under the cell door" of the cell defendant was in. Both defendant and his cell were searched. Defendant was the only person in the cell. Nothing was found on defendants person, but in his cell deputies found a "wad of tissue paper," which included a razor blade and "a couple of pieces of paper that had writing on it, which, of course, in custody terms, is called a kite."
The court stated that, on the previous Friday, it had discussed with defendant the possibility of him wearing a stun belt, and defendant did not take the discussion seriously. The court said it was not going to "put up with any person endangering any person in this court," and "if [defendant] so much as flinches, he will get dropped to the floor." The court dismissed defense counsels protestation that the razor blade kite had only been passed to defendant and defendant did not actually take possession of that kite.
The court directed the deputies to fit defendant with a stun belt, show him how it would be used "should he choose to act out," and otherwise follow established "protocol" concerning stun belts. Two days later, on the fourth day of trial, the court observed that defendant had been "very calm, very well behaved," and ordered the stun belt removed. During the two court days defendant was wearing the stun belt, his defense counsel was cross-examining Officer Gonzalez. No other witnesses testified during this two-day period.
2. Applicable Law and Analysis
Stun belts are used to guard against a defendants escape from custody and ensure the safety of persons in the courtroom. (See People v. Mar, supra, 28 Cal.4th at p. 1214.) A defendant may not be fitted with a stun belt while he is in the jurys presence, absent a showing of "manifest need" for the stun belt. (Id. at pp 1219-1220 [applying the manifest need requirement for physical restraints established in People v. Duran (1976) 16 Cal.3d 282, 290-291 to stun belts].) "Such a `"[m]anifest need" arises only upon a showing of unruliness, an announced intention to escape, or "[e]vidence of any nonconforming conduct or planned nonconforming conduct which disrupts or would disrupt the judicial process if unrestrained . . . ." [Citations.]" (People v. Hill (1998) 17 Cal.4th 800, 841.) Sufficient evidence of a manifest need "must be presented on the record so that the court may make its own determination" of whether there is a manifest need for the defendant to wear a stun belt. (People v. Mar, supra, at p. 1221.) On appeal, we review the trial courts determination for an abuse of discretion. (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1032.) The trial court abuses its discretion when its decision "exceeds the bounds of reason, all of the circumstances being considered." (People v. Giminez (1975) 14 Cal.3d 68, 72.)
Defendant maintains there was no manifest need for him to wear a stun belt. He submits there was no evidence he solicited or even picked up the kite containing the razor blade and writing that another jail inmate kicked under the door of his cell, and there was no indication that the second kite, which contained only written notes and that was found in his possession on the second day of trial, indicated he was planning to escape or intended to harm anyone. He also submits there was no evidence that "hand signals" and a "thumbs up signal" from the people in the courtroom indicated he was planning to escape or posed a security risk.
We disagree with defendants view of the evidence. The record amply supports the trial courts determination that there was a manifest need for defendant to wear a stun belt during the two-day period in question. At the very least, the kite containing the razor blade supported a manifest need for the stun belt, because it showed defendant may have been planning to harm someone in the courtroom. That defendant may not have solicited the razor blade kite or picked it up immediately after it was kicked under his cell door does not negate this inference. The second kite that was found in defendants possession four days later and the hand gestures to him in the courtroom only exacerbated the manifest need for the stun belt as demonstrated by the razor blade kite. And, as the court was well aware, defendant was facing a life sentence.
Defendant argues that the stun belt "so impaired his ability to communicate with his trial counsel during a crucial portion of the proceedings that reversal of the judgment is required." (See People v. Mar, supra, 28 Cal.4th at pp. 1226-1230 [discussing adverse psychological effects of stun belts and their impact on a defendants ability to participate and assist in his defense].) The record does not support this claim. As noted, defendant wore the stun belt for only two days, during which time his trial counsel was cross-examining Officer Gonzalez. After the stun belt was removed, counsel continued to cross-examine the officer, and the entire cross-examination was exceedingly lengthy and repetitive. Moreover, the court admonished defendant to speak up if he was uncomfortable or needed anything during the time he was wearing the stun belt. Defendant never did so. Thus, it manifestly does not appear that the stun belt impaired defendants ability to communicate with his trial counsel during the cross-examination of Officer Gonzalez.
F. The Trial Court Did Not Abuse Its Discretion in Refusing to Strike Defendants Prior Strike Convictions or Reduce His Current Felony Convictions to Misdemeanors for Purposes of Sentencing
Before sentencing, defendant filed a motion requesting that the trial court exercise its discretion to strike his prior strike convictions in the interest of justice and sentence him to misdemeanor punishment on the grounds he fell outside the spirit of the "Three Strikes" law. (Pen. Code, §§ 17, subd. (b), 1385.) The trial court denied the motion, citing defendants "numerous prior convictions." Defendant claims the trial court abused its discretion in denying his motion. For the reasons we explain, we find no abuse of discretion.
1. Applicable Law
A trial court may strike one or more prior strike convictions "in furtherance of justice." (Pen. Code, § 1385; People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529-530.) A court may also reduce a defendants current "wobbler" felony convictions to misdemeanors, for sentencing purposes. (Pen. Code, § 17, subd. (b); People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 974-977.) The courts exercise of its discretion is limited in both instances, however.
A trial court may strike a prior strike conviction only if, "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." (People v. Williams (1998) 17 Cal.4th 148, 161.)
A trial courts discretion to reduce a current felony conviction to a misdemeanor for sentencing purposes is similarly limited. "The determination to reduce a wobbler under [Penal Code] section 17[, subdivision] (b) `can be properly made only when the sentencing court focuses on considerations that are pertinent to the specific defendant being sentenced . . . ." (People v. Superior Court (Alvarez), supra, 14 Cal.4th at p. 980.) These include the defendants criminal history as well as "`the nature and circumstances of the [current] offense, the defendants appreciation of and attitude toward the offense, or his traits of character as evidenced by his behavior and demeanor at the trial." (Id. at pp. 977-978, 980.)
On appeal, we review the trial courts determinations not to strike a prior strike conviction and not to reduce a wobbler to a misdemeanor for an abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 376-377; People v. Superior Court (Alvarez), supra, 14 Cal.4th at pp. 977-978.) The court will not have abused its discretion, in either instance, "unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (People v. Carmony, supra, at p. 377.)
2. Analysis
The trial court did not abuse its discretion in refusing to strike defendants prior strike convictions or in refusing to reduce his current felony convictions to misdemeanors for purposes of sentencing. Defendant was 30 years old at the time of trial. His contacts with law enforcement began when he was 15 years old. At age 16 he was arrested for carrying a concealed, loaded firearm. At ages 17 and 18 he was arrested for grand theft auto.
In 1994, at age 18, defendant was convicted of assault with a firearm (Pen. Code, § 245, subd. (a)(2)) and shooting at an inhabited dwelling (Pen. Code, § 246). In 1995, defendant was convicted of three counts of first degree robbery. (Pen. Code, § 212.5.) These convictions comprise defendants five prior strike convictions.
In July 1996, when defendant was 20 years old, he was convicted of carrying a concealed weapon in a vehicle with a prior felony conviction (Pen. Code, § 12025, subd. (a)(1)), being a felon in possession of a firearm (Pen. Code, § 12021, subd. (a)), and possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)). For these crimes, he was sentenced to 88 months in prison.
While in prison, defendant was arrested for "possession of narcotics" and "battery by a prisoner." And, while awaiting trial on his current charges, defendant was arrested at the West Valley Detention Center for assault with a deadly weapon. (Pen. Code, § 245, subd. (a).)
At trial, defendant testified he spent seven years in prison. He was on parole at the time he committed his current offenses on February 10, 2005. As noted, defendants current felony offenses were being a felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1)) and being a felon carrying a loaded firearm (Pen. Code, § 12031, subd. (a)(1)).
Defendant had only been out of state prison for a short time when he committed his current offenses in February 2005. Before that, he had spent the majority of his adult life in prison. In denying defendants motion, the trial court observed he had "numerous prior convictions" and that his current felony convictions constituted his ninth and tenth felony convictions.
In view of defendants lengthy criminal history and apparent unwillingness to learn from his prior convictions and time spent in prison, it cannot be said that the trial court abused its discretion in denying defendants motion.
G. Defendants Life Sentences Do Not Constitute Cruel and/or Unusual Punishment
Lastly, defendant contends that his 25-year-to-life sentence on count 3 and his concurrent 25-year-to-life sentence on count 4 is disproportionate to the severity of his current offenses and criminal history, and as such constitute cruel and/or unusual punishment under the federal and state Constitutions. (U.S. Const., 8th Amend.; Cal. Const., art. I, § 17.) We disagree.
"`"The cruel and unusual punishments clause of the Eighth Amendment to the United States Constitution prohibits the imposition of a penalty that is disproportionate to the defendants `personal responsibility and moral guilt. [Citations.] Article I, section 17 of the California Constitution separately and independently lays down the same prohibition." [Citations.]" (People v. Lucero (2000) 23 Cal.4th 692, 739.) "If the penalty imposed is `grossly disproportionate to the defendants individual culpability [citation], so that the punishment `"`shocks the conscience and offends fundamental notions of human dignity" [citation], [we] must invalidate the sentence as unconstitutional." (Id. at pp. 739-740.) "A defendant has a considerable burden to overcome when he challenges a penalty as cruel or unusual." (People v. Bestelmeyer (1985) 166 Cal.App.3d 520, 529.)
When reviewing a claim of disproportionality or cruel and unusual punishment under the state Constitution, we examine the nature of the offense and offender, compare the punishment with the penalty for more serious crimes in the same jurisdiction, and measure the punishment to the penalty for the same offense in different jurisdictions. (People v. Dennis (1998) 17 Cal.4th 468, 511; In re Lynch (1972) 8 Cal.3d 410, 425-427 (Lynch).) Regarding the nature of the offense and the offender, we evaluate the totality of the circumstances surrounding the commission of the current offenses, including the defendants motive, the manner of commission of the crimes, the extent of the defendants involvement, the consequences of his acts, and his individual culpability, including factors such as the defendants age, prior criminality, personal characteristics, and state of mind. (People v. Lucero, supra, 23 Cal.4th at p. 739; People v. Martinez (1999) 71 Cal.App.4th 1502, 1510.)
Defendant points out that, in the absence of his recidivism, his current offenses of being a felon in possession of a firearm and carrying a loaded firearm would have been punishable by one, two, or three years of imprisonment. Thus, he argues, the Legislature has recognized that his current offenses, standing alone, "[do] not pose an extreme danger to society." But defendants current life sentences were not based on his current offenses, standing alone. Instead, they were largely based on his recidivism. "[A] defendants history of recidivism, which is part of the nature of the offense and the offender, justifies harsh punishment." (People v. Meeks (2004) 123 Cal.App.4th 695, 709.) "Recidivism in the commission of multiple felonies poses a manifest danger to society justifying the imposition of longer sentences for subsequent offenses." (People v. Kinsey (1995) 40 Cal.App.4th 1621, 1630.)
Additionally and as discussed above, defendants criminal history is extensive and continuing. Moreover, his recurrent criminality indicates he has failed to learn from his numerous past experiences with the law. In view of his failure to learn from the repercussions of his past offenses, his concurrent life terms are not disproportionate to his personal responsibility. Nor do the sentences shock the conscious or offend fundamental notions of human dignity. (People v. Lucero, supra, 23 Cal.4th at p. 740.)
The second prong of the Lynch analysis "involves a comparison of the `challenged punishment with the punishment prescribed for more serious crimes in the same jurisdiction. [Citation.]" (People v. Romero (2002) 99 Cal.App.4th 1418, 1433.) The third prong of Lynch calls for comparison of California punishment with punishment for the same crimes in other states. (People v. Romero, supra, at p. 1433.) Defendant has not met his burden of proof on either of these prongs. (Ibid. [second prong inapposite to three strikes sentencing; third prong not satisfied merely because Californias sentencing scheme is harsher than others].) Indeed, defendants sentence is not disproportionate to his culpability. (See Lockyer v. Andrade (2003) 538 U.S. 63, 73-74 [two consecutive terms of 25 years to life for third strike conviction involving two thefts of videotapes not cruel and unusual punishment]; Ewing v. California (2003) 538 U.S. 11, 21 [25-year-to-life sentence for theft of three golf clubs for habitual criminal not violative of the Eighth Amendment].)
IV. DISPOSITION
The judgment is affirmed.
We concur:
Ramirez, P.J.
Hollenhorst, J.