Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Los Angeles County Super. Ct. No. LA050721, Martin Herscovitz, Judge.
Sherman & Sherman and Victor Sherman for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec, and Robert S. Henry, Deputy Attorneys General, for Plaintiff and Respondent.
PERLUSS, P. J.
Steven N. Ketchens appeals from the judgment entered following his conviction after a jury trial on one count of inflicting corporal injury on his spouse (Pen. Code, § 273.5, subd. (a)) and one count of making a criminal threat (Pen. Code, § 422), with special findings by the court in a bifurcated proceeding he had suffered three prior serious or violent felony convictions within the meaning of the “Three Strikes” law (Pen. Code, §§ 667, subds. (b)-(i); 1170.12, subds. (a)-(d)) and Penal Code section 667, subdivision (a). Steven’s primary contentions on appeal concern the admission at trial of evidence of his prior acts of domestic violence under Evidence Code section 1109 (section 1109) and the trial court’s decision to sentence him to an aggregate state prison term of 40 years to life, including the court’s refusal to dismiss any of his strike priors. We affirm.
Because Steven Ketchens and his victim, LaShawn Ketchens, share a surname, we refer to them by their first names for clarity and convenience. (See Cruz v. Superior Court (2004) 120 Cal.App.4th 175, 188, fn. 13.)
FACTUAL AND PROCEDURAL BACKGROUND
1. Summary of the Evidence Presented at Trial
a. The People’s Evidence
As of March 2005 Steven and LaShawn Ketchens had been married for 11 years, much of which, according to LaShawn’s testimony, was characterized by a “cycle of abuse.” Steven had recently come back into LaShawn’s life after a prolonged separation during which LaShawn had begun a program to treat her substance abuse. Although Steven had promised he would support LaShawn’s recovery and “things would be different,” within 90 days LaShawn began to see the cycle of physical and emotional abuse repeat itself. Consequently, on March 3, 2005 at approximately 3:45 p.m. LaShawn, accompanied by Steven, gave the on-site leasing office in her building a 30-day notice to terminate the lease on the couple’s apartment. After returning to the apartment, Steven protested he did not want to separate. LaShawn ignored him. According to LaShawn’s testimony, Steven then began to choke her, pressing her throat with his hands for 30 to 60 seconds. LaShawn testified she “felt like a fish flipping out of the water.” To diffuse his anger, LaShawn told Steven she loved him; and his attack stopped. Shortly thereafter, however, he again choked her for approximately a minute and threatened, among other things, if LaShawn “brought anybody into this situation,” he would “kill [her] before [the police] even got in” and would “gun them down too.” LaShawn felt her arm go numb and her “eyes were popping”; she also urinated.
LaShawn is five feet two inches tall and weighed approximately 130 pounds. Steven is five feet eight inches and weighed 190 pounds.
After releasing LaShawn, Steven propped a chair under the doorknob of the apartment’s entrance door and fell asleep on a nearby couch. When she believed he was in a deep sleep, LaShawn retrieved a cell phone Steven had taken and called her mother in Ohio. LaShawn told her mother she had just been choked and asked, if her mother did not hear from her the following day, that the manager check the apartment because LaShawn would probably be dead inside. LaShawn also called Steven’s sister, Elouise Winbush, told her Steven had just choked her and asked if somebody could come get him. Steven woke up as LaShawn was talking to Winbush, grabbed the phone and determined, by checking the list of outgoing calls, LaShawn had not called the police. Steven then left the apartment.
Approximately 30 minutes after Steven left, the police arrived in response to a call from LaShawn’s mother. Los Angeles Police Officer Andy Azodi testified LaShawn appeared scared and nervous when she opened her apartment door. She had red marks on her neck, and her eyes looked like blood vessels had broken. Los Angeles Police Officer Robin Jones, a domestic violence abuse officer who arrived later, testified LaShawn appeared upset and to have been crying; her eyes had “red veins or vessels . . . and she had what appeared to be impressions of hand marks on her neck.” Jones took photographs of LaShawn’s eyes and both sides of her neck. The photographs were introduced into evidence.
Dr. Harold Lowder, an emergency room physician, testified as an expert witness that the effects of strangulation can include urination and areas of bleeding in the eye. He explained petechiae are ruptured tiny capillaries. Subconjunctival hemorrhages are larger areas of bleeding that occur with more applied force. Lowder stated the photograph of LaShawn’s eyes depicted subconjunctival hemorrhages.
Jerri Darr, a counselor for domestic violence victims, testified as an expert witness that victims who have been choked -- an extreme and more intimate form of violence -- tend to minimize the severity of their injuries and are not as cooperative with the police as other domestic violence victims. Darr stated, “I think that it’s more common for a victim to be uncooperative with prosecution than it is for them to cooperate.” She also explained that victims stay in abusive relationships because, among other reasons, they love the abuser and just want the violence to stop; they are financially dependent; they grew up in homes where “violence was the norm”; or there may be children who do not want to see their family separated.
b. The Defense’s Evidence
Although Steven did not testify on his own behalf, through cross-examination of LaShawn and several defense witnesses he maintained LaShawn had initiated the attack in response to his attempt to move out of their apartment and was lying about the incident because she was angry she had been unable to regain custody of their daughter, who had lived with Steven’s mother since 1999.
Ray Brock, a friend of Steven’s, testified he went to Steven’s apartment to help him move, but LaShawn would not let them remove four trash bags containing Steven’s clothing. LaShawn threatened, “You’re not leaving me here. And if you leave me here with these bills and everything else, you’re going to pay for it. I’ll call the police.” LaShawn then grabbed a knife and, after Steven disarmed her, jumped on his back. After they finished struggling, LaShawn stuck her fingers into her eyes and said, “Now, look what you’ve done to me.” Steven and Brock took the four bags and left. Brock acknowledged he had previously been convicted of domestic violence and forgery.
Emily Ketchens, Steven’s mother, and Winbush testified about the custody dispute regarding Steven and LaShawn’s daughter and threats LaShawn had made if she did not regain custody. Winbush testified she had heard a telephone message left by LaShawn for the child stating, “If I don’t get you, you’re not going to see your daddy ever again.”
2. Admission of Evidence of Prior Acts of Domestic Violence Committed by Steven Upon LaShawn
Prior to trial the court granted the People’s motion pursuant to section 1109, subdivision (a), to introduce evidence of prior acts of domestic violence committed by Steven. LaShawn testified that in June 1997 Steven had punched her in the thigh following an argument. A photograph of a bruise on LaShawn’s leg taken by police officers was introduced into evidence.
On July 15, 1999 Steven kicked LaShawn in the lower leg. A photograph of her bruises from this incident, also taken by a police officer, was introduced into evidence.
On August 16, 1999 at approximately 2:00 a.m. Steven choked LaShawn and threatened to kill her after they argued about a pager that had just beeped. Later that day, after Steven had returned from work, he tied LaShawn’s hands and feet and threatened to put her in the back of a trunk, but then laughed and said, “I’m not going to hurt you.” In addition to LaShawn’s testimony, a photograph of her neck taken by a police officer was introduced into evidence.
As a result of the August 16, 1999 incident Steven was convicted of inflicting corporal injury on a spouse and making a criminal threat. LaShawn, however, had testified at the preliminary hearing following Steven’s arrest for that incident that Steven had not done anything to her; and she later wrote a letter to the court requesting that no action be taken against him. In her testimony in the current case, LaShawn explained she had been directed to write that letter by Steven and Emily Ketchens, with whom LaShawn and her child were then living.
3. The Verdict and Sentencing
The jury found Steven guilty of inflicting corporal injury on a spouse or cohabitant and making a criminal threat. In a bifurcated proceeding the trial court found true the special allegations Steven had suffered three prior strike convictions and three serious felony convictions within the meaning of Penal Code section 667, subdivision (a)(1). After denying Steven’s motion under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 to dismiss prior strike allegations, the court sentenced him to an aggregate state prison term of 40 years to life: (1) a term of 25 years to life under the Three Strikes law for making a criminal threat plus three consecutive five-year terms for the prior serious felony convictions, and (2) a concurrent term of 25 years to life under the Three Strikes law for inflicting corporal injury on a spouse or cohabitant.
The court also found true the special allegation Steven had suffered a prior conviction for domestic violence (Pen. Code, § 273.5, subd. (e)(1)) and one of two allegations Steven had served a prior prison term for a felony (Pen. Code, § 667.5, subd. (b)). The court found not true the special prior prison term allegation regarding Steven’s 1984 kidnapping conviction because the prison term was “served prior to a period of five years in which the defendant remained free of both prison custody and the commission of an offense which results in a felony conviction.” (Ibid.)
CONTENTIONS
Steven contends section 1109, which permits admission of evidence of prior acts of domestic violence in a prosecution for domestic violence, violates due process; the trial court abused its discretion in admitting the prior domestic violence evidence; the admission of the prior domestic violence evidence violated his right not to testify; the jury instruction concerning the use of prior domestic violence evidence is defective; testimony by the People’s domestic violence expert was impermissible; the prosecutor engaged in misconduct by vouching for LaShawn’s credibility during closing argument; the trial court abused its discretion in refusing to dismiss one of his prior strike convictions; and his sentence constitutes cruel and unusual punishment.
DISCUSSION
1. Section 1109 Does Not Violate Due Process
In a criminal trial involving charges of domestic violence, section 1109 permits the introduction of evidence of the defendant’s commission of other acts of domestic violence unless, pursuant to Evidence Code section 352, “its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” The Legislature enacted Evidence Code section 1109 because of “the special nature of domestic violence crime . . .: ‘The propensity inference is particularly appropriate in the area of domestic violence because on-going violence and abuse is the norm in domestic violence cases. Not only is there a great likelihood that any one battering episode is part of a larger scheme of dominance and control, that scheme usually escalates in frequency and severity. Without the propensity inference, the escalating nature of domestic violence is likewise masked . . . .’ (Assem. Com. Rep. on Public Safety Report (Jun. 25, 1996) pp. 3-4.)” (People v. Johnson (2000) 77 Cal.App.4th 410, 419.)
Section 1109, subdivision (a)(1), states, “[I]n a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant’s commission of other domestic violence is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352.”
Steven’s contention section 1109 violates his constitutional right to due process because it “taint[s] trials with unnecessary and unreliable prejudicial evidence” is without merit. Section 1109 is substantively identical to Evidence Code section 1108, which authorizes the use of propensity evidence when the defendant is charged with an enumerated sexual offense. In People v. Falsetta (1999) 21 Cal.4th 903, 911, 916-917 (Falsetta) the Supreme Court held Evidence Code section 1108 does not violate due process principles -- notwithstanding the general rule that propensity evidence is unduly prejudicial -- in large part because trial courts “must engage in a careful weighing process under [Evidence Code] section 352” before admitting such evidence: “Rather than admit or exclude every sex offense a defendant commits, trial judges must consider such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant’s other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense.” Evaluating the evidence under the standards of Evidence Code section 352 is the “safeguard” that ensures admission of evidence of uncharged sexual offenses will not result in a fundamentally unfair trial and thus “strongly supports the constitutionality of [Evidence Code] section 1108.” (Falsetta, at pp. 916, 917.)
Evidence Code section 1108, subdivision (a), states, “In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant’s commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352.”
Although the Supreme Court has not addressed the constitutionality of section 1109, every Court of Appeal that has considered the issue has applied the reasoning of Falsetta, supra, 21 Cal.4th 903 and held section 1109 does not violate due process. (See e.g., People v. Cabrera (2007) 152 Cal.App.4th 695, 703-704; People v. Escobar (2000) 82 Cal.App.4th 1085, 1095-1096; People v. James (2000) 81 Cal.App.4th 1343, 1353; People v. Brown (2000) 77 Cal.App.4th 1324, 1335; People v. Hoover (2000) 77 Cal.App.4th 1020, 1027-1028; People v. Johnson, supra, 77 Cal.App.4th at pp. 417-420.) We see no reason to depart from the reasoning of these decisions.
2. The Trial Court Did Not Abuse Its Discretion in Admitting the Prior Domestic Violence Evidence
Steven contends the trial court erred in admitting evidence he had kicked LaShawn in 1997 and 1999 and bound and threatened her in 1999 because the incidents were dissimilar to the charged offense and had occurred many years earlier. He also argues there was insufficient evidence the incidents actually occurred.
A trial court’s determination of the admissibility of evidence of uncharged offenses is generally reviewed for an abuse of discretion. (People v. Kipp (1998) 18 Cal.4th 349, 369 [“[o]n appeal, the trial court’s determination of this issue, being essentially a determination of relevance, is reviewed for abuse of discretion”]; People v. Walker (2006) 139 Cal.App.4th 782, 794-795 [same].) An abuse of discretion will not be found unless the trial court has exceeded the bounds of reason by exercising its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.) Moreover, “as the Supreme Court has repeatedly and recently reaffirmed, ‘when ruling on a section 352 motion, a trial court need not expressly weigh prejudice against probative value, or even expressly state that it has done so. All that is required is that the record demonstrate the trial court understood and fulfilled its responsibilities under . . . section 352.’” (People v. Jennings (2000) 81 Cal.App.4th 1301, 1315.)
The record demonstrates the trial court fully understood and properly discharged its responsibilities. After excluding evidence of a 1982 act of domestic violence Steven had committed against his first wife -- he shot her in the thigh and threatened to kill her -- on the ground it occurred more than 10 years prior to the charged offense, the court explained, “I see no real difference in severity of the injuries between the four incidents, the three prior incidents involving the same victim and the current offense. It’s not like that 1982 incident where someone was shot was certainly more serious. [A]ll four incidents seemed to involve the infliction of bodily injury without a weapon.” The court also noted any inconsistent statements LaShawn may have made about the prior incidents -- bearing on the Falsetta factor “the degree of certainty of [the prior act’s] commission” (Falsetta, supra, 21 Cal.4th at p. 917) -- “rubs both ways. . . . If [the jury doesn’t] believe her or if she made inconsistent statements about those prior incidents, that would damage her credibility in the new incident. Also, if she’s stayed with Mr. Ketchens despite being assaulted in the past, I think that could be argued, somewhat damaging to her credibility. And yet, the foundation of -- of 1109 is propensity evidence that we’re going to allow. If they don’t believe the woman about one, then there’re probably not going to believe her about the other three also.” Indeed, the trial court’s explanation was far more detailed than necessary to respond to the only argument Steven’s counsel made, that the evidence was highly prejudicial and might confuse the jury because “those old cases will point the finger at the new case.”
Section 1109, subdivision (e), provides, “Evidence of acts occurring more than 10 years before the charged offense is inadmissible under this section, unless the court determines that the admission of this evidence is in the interest of justice.”
The trial court’s ruling was also well within its discretion. With respect to the remoteness of the prior incidents, the Legislature had indicated, in general, only events more than 10 years old are too remote to be admitted as propensity evidence. (See § 1109, subd. (e).) Nonetheless, the trial court has discretion to exclude acts occurring less than 10 years before the charged offense. Under the circumstances of this case, the court’s determination Steven’s prior acts of domestic violence were not too remote was sound. The incidents took place in 1997 and 1999, eight and six years prior to the charged offense. However, Steven was incarcerated for domestic violence for much of the period between the prior incidents and the charged offense. The relevance of his prior acts was not diminished by the passage of time during which Steven was unable to continue the cycle of violence.
The acts were also not impermissibly dissimilar to the charged offense in light of the Legislature’s observation that the “‘scheme of dominance and control’” “‘usually escalates in frequency and severity.’” (People v. Johnson, supra, 77 Cal.App.4th at p. 419.) Consistent with this observation, Steven initially attacked LaShawn in July 1999 by kicking her. Within one month of that incident his use of force escalated, and in August 1999 he choked her. The charged offense, repeated choking causing observable damage, was consistent with this pattern of escalating violence. Finally, the evidence of Steven’s prior acts of domestic violence was markedly less inflammatory than the charged offense, yet another factor weighing in favor of its admission. (People v. Rucker (2005) 126 Cal.App.4th 1107, 1119 [“[r]elevant factors in determining prejudice include whether the prior acts of domestic violence were more inflammatory than the charged conduct”].)
3. The Admission of the Prior Domestic Violence Evidence Did Not Violate Steven’s Right Not to Testify
Steven asserts his right to refuse to testify, guaranteed by the Fifth Amendment to the United States Constitution and article I, section 15 of the California Constitution (People v. Carter (2005) 36 Cal.4th 1114, 1198), was violated by admission of the prior domestic violence evidence. Steven argues that, because generally the only witnesses to an incident of domestic violence are the victim and the defendant, it is virtually impossible for a defendant to refute the incident occurred under the applicable preponderance of the evidence standard unless the defendant testifies. Thus, the defendant’s silence creates a presumption he or she had a propensity to commit the acts of domestic violence.
That Steven may have felt pressure to testify because of the strength of the propensity evidence and the lack of controverting evidence other than his own testimony does not amount to a Fifth Amendment violation. An analogous argument was rejected by the United States Supreme Court in Barnes v. U.S. (1973) 412 U.S. 837 [93 S.Ct. 2357, 37 L.Ed.2d 380] in which the Court held the defendant’s privilege against self-incrimination was not abridged when the jury was instructed that “‘possession of recently stolen property, if not satisfactorily explained, is ordinarily a circumstance from which you may reasonably draw the inference and find, in the light of the surrounding circumstances shown by the evidence in the case, that the person in possession knew the property had been stolen.’” (Id. at pp. 839-840.) The Supreme Court explained, “The trial court specifically instructed the jury that petitioner had a constitutional right not to take the witness stand and that possession could be satisfactorily explained by evidence independent of petitioner’s testimony. Introduction of any evidence, direct or circumstantial, tending to implicate the defendant in the alleged crime increases the pressure on him to testify. The mere massing of evidence against a defendant cannot be regarded as a violation of his privilege against self-incrimination.” (Id. at pp. 846-847.)
As discussed, Steven objected to the admission of evidence of his prior acts of domestic violence against LaShawn only on the ground it was “highly prejudicial” -- that is, under Evidence Code section 352. On appeal a defendant “may not argue that the court should have excluded the evidence for a reason different from his trial objection.” (People v. Partida (2005) 37 Cal.4th 428, 435 [defendant who objected to evidence only under Evid. Code, § 352 may not assert on appeal that due process required exclusion of the evidence for reasons other than those articulated in his § 352 argument]; see People v. Rodrigues (1994) 8 Cal.4th 1060, 1116, fn. 20.) Because the People have not asserted Steven has forfeited his Fifth Amendment argument, however, we consider that claim on its merits.
The same analysis applies here. The trial court instructed the jury Steven had “an absolute constitutional right not to testify” and not to “consider, for any reason at all, the fact that the defendant did not testify.” The court also instructed the jury in at least two instances, including in the context of the instruction on evidence of uncharged domestic violence, that the People must prove each element of every charge beyond a reasonable doubt. Whether Steven’s commission of other acts of domestic violence had to be proved by a preponderance of the evidence, not beyond a reasonable doubt, created no more pressure to testify than other highly probative circumstantial evidence.
We also reject Steven’s suggestion, fundamental to his Fifth Amendment argument, that generally the only evidence from which it can be determined whether prior acts of domestic violence occurred is the testimony of the victim and the defendant. Here, for example, there were photographs of LaShawn’s injuries taken by the police. And with respect to the charged offenses, Steven presented his friend Ray Brock’s testimony, a witness who purportedly was present when the incident occurred. Indeed, it is not uncommon for evidence of domestic violence to be presented through the testimony of neighbors, friends and family members.
4. Even If Steven Has Not Forfeited His Claim the Approved Jury Instruction Concerning Evidence of Prior Domestic Violence Is Defective, That Claim Lacks Merit
The jury was instructed with the Judicial Council of California Criminal Jury Instructions (CALCRIM) No. 852, limiting its consideration of evidence of uncharged acts of domestic violence. Steven contends the instruction suffers from several infirmities, including that it fails to instruct the jury it may not find the defendant guilty because he is a bad person and, to the contrary, advises the jury that it may use “the uncharged domestic violence . . . to[] conclude . . . that the defendant . . . did commit the charged offenses involving domestic violence.” Steven argues the instruction’s admonition the prior act evidence “is not sufficient by itself to prove that the defendant is guilty of the charged offense involving domestic violence” does not limit the jury’s use of the evidence, but adds confusion to an otherwise unambiguous instruction that the jury can base a finding of guilt on the prior act evidence alone.
The jury was instructed, “The People presented evidence that the defendant committed domestic violence that was not charged in this case. [¶] Domestic violence means abuse committed against an adult who is a spouse. [¶] You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the uncharged domestic violence. Proof by a preponderance of the evidence is a different burden of proof from proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true. [¶] If the People have not met this burden of proof, you must disregard this evidence entirely. [¶] If you decide that the defendant committed the uncharged domestic violence, you may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit domestic violence and, based on that decision, also conclude that the defendant was likely to commit and did commit the charged offenses involving domestic violence, as charged here. If you conclude that the defendant committed the uncharged domestic violence, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of the charged offenses involving domestic violence. The People must still prove each element of every charge beyond a reasonable doubt. [¶] Do not consider this evidence for any other purpose.”
Generally, a defendant who fails to object to a proposed jury instruction forfeits the right to challenge that instruction on appeal. (People v. Bolin (1998) 18 Cal.4th 297, 326 [waiver found when defense counsel agreed to giving of instruction and raised no objection]; People v. Stone (2008) 160 Cal.App.4th 323, 331 [defendant waived claim of instructional error by failing to object].) The trial court asked Steven’s counsel whether he had any objections to the court’s proposed instructions, and he responded “none.” However, Steven at least implicitly asserts the purported defect in CALCRIM No. 852 “affected the substantial rights of the defendant,” and, therefore, no objection was necessary to preserve the issue for appeal. (See Pen. Code, § 1259.) We need not decide that question; for, even if the claim was properly preserved, it lacks merit.
Read from beginning to end -- not just isolated snippets taken out of context -- the instruction advises the jury that it may consider the defendant’s propensity to commit domestic violence, a tendency that must be proven by a preponderance of the evidence, as a factor bearing on the defendant’s likelihood to have committed the charged offense, not that the jury may conclude solely from that evidence the defendant is in fact guilty. As the Court of Appeal for the Third Appellate District recently explained in upholding the constitutionality of CALCRIM No. 852, “[it] makes clear the evidence of uncharged acts of domestic violence may only be considered at all if it has been established by a preponderance of the evidence and explains what is meant by that burden . . . . [¶] . . . CALCRIM No. 852 clarifies that even if the jury concludes defendant committed the uncharged acts, that evidence is only one factor to consider, along with all the other evidence and specifies that such evidence alone is insufficient to prove defendant’s guilt on the charged offenses. CALCRIM No. 852 then goes on to state that the People must still prove each element of every charge beyond a reasonable doubt. In this, CALCRIM No. 852 goes further than [revised] CALJIC No. 2.50.02 [an instruction governing consideration of uncharged acts of domestic violence that has withstood constitutional challenge with a clarification which inures to defendant’s benefit.” (People v. Reyes (2008) 160 Cal.App.4th 246, 252.)
Decisions upholding the constitutionality of the revised version of CALJIC No. 2.50.02 include People v. Pescador (2004) 119 Cal.App.4th 252, 261-262 and People v. Brown (2000) 77 Cal.App.4th 1324.
5. Steven Has Forfeited His Claims that Testimony by the People’s Expert Witness and Statements Made by the Prosecutor During Closing Argument Were Improper
“Evidence Code section 353, subdivision (a), provides that a judgment shall not be reversed because of the erroneous admission of evidence unless there was a timely objection ‘so stated as to make clear the specific ground of the objection . . . .’ ‘The reason for the requirement is manifest: a specifically grounded objection to a defined body of evidence serves to prevent error. It allows the trial judge to consider excluding the evidence or limiting its admission to avoid possible prejudice. It also allows the proponent of the evidence to lay additional foundation, modify the offer of proof, or take other steps designed to minimize the prospect of reversal.’” (People v. Zapien (1993) 4 Cal.4th 929, 979.)
Although Steven contends on appeal the expert witness on domestic violence provided improper testimony in response to the prosecutor’s hypothetical questions, he failed to object to either the questions or the answers during trial. Steven has forfeited this claim of error.
Similarly, Steven has forfeited his claim the prosecutor improperly vouched for LaShawn’s credibility by describing her as “one of the most courageous women that I’ve met to go through everything that she has gone through and to be able to come here into court in front of 12 or 14, actually, complete strangers” and testify honestly about what had happened to her. “To preserve a claim of prosecutorial misconduct during argument, a defendant must contemporaneously object and seek a jury admonition.” (People v. Bonilla (2007) 41 Cal.4th 313, 336.) Steven did neither.
6. The Trial Court Did Not Abuse Its Discretion in Refusing To Dismiss One of Steven’s Prior Qualifying Strike Convictions
Penal Code section 1385, subdivision (a), vests the court with discretion to dismiss a prior conviction, including a qualifying strike conviction, “in furtherance of justice.” (People v. Superior Court (Romero), supra, 13 Cal.4th at pp. 529-530; People v. Williams (1998) 17 Cal.4th 148, 158.) “[I]n ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law . . . or in reviewing such a ruling, the court . . . must consider 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 [Three Strikes] scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.” (Williams, at p. 161.)
Following Steven’s conviction on both charged offenses and the court’s finding at a bifurcated bench trial that Steven had suffered three prior qualifying strike convictions (kidnapping in 1984, assault with a firearm in 1986 and making a criminal threat in 2000), Steven’s counsel moved under People v. Superior Court (Romero), supra, 13 Cal.4th 497 to dismiss his 1986 strike conviction in the interest of justice and to treat Steven as a second-strike offender. The trial court denied the motion.
It appears Steven’s counsel erroneously believed, by finding not true the special allegation Steven had served a prior prison term in connection with the 1984 kidnapping conviction for purposes of Penal Code section 667.5, subdivision (b) (see fn. 3, above), the trial court eliminated that conviction from consideration for all sentencing purposes. However, the court had expressly found all three prior strike allegations true immediately before turning to the prior prison term allegations. Nevertheless, defense counsel limited the argument in his subsequently filed Romero motion to striking Steven’s 1986 aggravated assault conviction. On appeal Steven contends the trial court erred in refusing to dismiss his prior strike convictions without specifying them by date or case number. Inasmuch as Steven’s moving papers and argument before the trial court were limited to his 1986 conviction, we consider only the court’s decision as to that offense.
We review the trial court’s refusal or failure to dismiss a prior strike allegation under Penal Code section 1385 for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 376; seePeople v. Superior Court (Romero), supra, 13 Cal.4th at p. 530.) “[T]he three strikes law not only establishes a sentencing norm, it carefully circumscribes the trial court’s power to depart from this norm and requires the court to explicitly justify its decision to do so. In doing so, the law creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper. [] . . . [] . . . ‘[I]t is not enough to show that reasonable people might disagree about whether to strike one or more’ prior conviction allegations. [Citation.] . . . Because the circumstances must be ‘extraordinary . . . by which a career criminal can be deemed to fall outside the spirit of the very scheme within which he squarely falls once he commits a strike as part of a long and continuous criminal record, the continuation of which the law was meant to attack’ [citation], the circumstances where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme must be even more extraordinary.” (Carmony, at p. 378.)
In denying Steven’s motion the trial court -- observing that “the Three Strikes Law was made with Mr. Ketchens in mind” -- explained, “[W]hen you look at the defendant’s history here, this is one of the longest histories of violence, use of weapons, and violence against women in a domestic situation, that all show that the defendant’s prospects in the future are extremely problematic; and his dangerousness to the community, and to women, and women that he associates with, is extremely high.” Steven contends the trial court abused its discretion because it only considered his criminal history and did not consider, for example, the remoteness of the strike conviction or his increased ties to his family as part of the “individualized” sentencing analysis required under Romero.
Steven’s criminal career began in 1963 when he was a juvenile with adjudications for, among other things, robbery and joyriding. His adult criminal history began in 1970 and includes early convictions for joyriding and attempted burglary. His commission of violent felonies began in 1982 when he shot his former wife in the thigh and was convicted of assault with a firearm (Pen. Code, § 245, subd. (a)(2)).
The record demonstrates the trial court properly evaluated Steven’s motion, including the factors identified in People v. Williams, supra, 17 Cal.4th at page 161, and People v. Carmony, supra, 33 Cal.4th at page 378. At the hearing the court entertained argument from both Steven’s counsel and the prosecutor. Before commenting on the “common thread” of violence running through Steven’s criminal history, the court addressed Steven’s current offenses and acknowledged the applicability of the Williams factors: “Well, in looking at the various factors in the Williams case, number one, this is not a case of a non-violent current offense, a wobbler current offense. It is a case of what would be a strike, being that he stands convicted of 422, which is a strike under the current law.” The court was not required to expressly address all of the potential factors enumerated in the case law or each of the specific arguments made by Steven to demonstrate it was conducting an individualized sentencing analysis. (Cf. Carmony, at p. 378 [“‘[o]n a silent record in a post-Romero case, the presumption that a trial court ordinarily is presumed to have correctly applied the law is applicable’”].) Plainly this is not a case in which the court was not “‘aware of its discretion’ to dismiss [citation], or where the court considered impermissible factors in declining to dismiss.” (Ibid.)
Steven also attempts to analogize his circumstances to the defendant in People v. Bishop (1997) 56 Cal.App.4th 1245, 1248, 1251, in which the Court of Appeal upheld the trial court’s dismissal of two of the defendant’s strikes because they were 17 and 20 years old. In Bishop, however, the defendant, whose “lifetime of crime was directed toward supporting his drug use,” was being sentenced for stealing six video cassettes from a store (id. at p. 1248), not threatening to kill his spouse and choking her so violently it caused her to urinate and ruptured blood vessels in her eyes. Steven does not simply have, as he suggests, an “anger management problem,” nor, unlike Bishop, were are all his prior convictions for crimes involving violence remote. Violence has been a trademark of many of his past offenses, including the relatively recent 2000 conviction for making criminal threats and inflicting corporal injury on his spouse. The trial court’s determination Steven did not fall outside the purview of the Three Strikes Law -- and, to the contrary, exemplified the need for the law -- was well within its discretion.
It is, of course, far different for an appellate court to affirm the trial court’s exercise of its discretion to dismiss a prior strike conviction, as occurred in People v. Bishop, supra, 56 Cal.App.4th 1245, than for the reviewing court to reverse as an abuse of discretion the trial court’s decision not to do so, as Steven asks us to do. (See generally People v. Carmony, supra, 33 Cal.4th at p. 378 [circumstances in which no reasonable person could disagree the defendant falls outside the spirit of the Three Strikes law must be “even more extraordinary” than the extraordinary case in which the trial court may properly conclude he or she does].)
7. Steven’s Sentence Does Not Constitute Cruel and Unusual Punishment
Steven contends his sentence of 40 years to life for making a criminal threat, a crime that would ordinarily have a maximum sentence of five years, violates the prohibition against cruel and unusual punishment in the United States Constitution and the prohibition against cruel or unusual punishment in the California Constitution. Federal courts have consistently rejected claims that life terms imposed on recidivists like Steven violate the ban on cruel and unusual punishment contained in the Eighth Amendment to the United States Constitution. (Ewing v. California (2003) 538 U.S. 11, 29 123 S.Ct. 1179, 1189-1190, 155 L.Ed.2d 108 “In weighing the gravity of defendant’s offense, we must place on the scales not only his current felony, but also his long history of felony recidivism. Any other approach would fail to accord proper deference to the policy judgments that find expression in the legislature’s choice of sanctions.”; Lockyer v. Andrade (2003) 538 U.S. 63, 77 123 S.Ct. 1166, 1174, 155 L.Ed.2d 144; Harmelin v. Michigan (1991) 501 U.S. 957, 965 111 S.Ct. 2680, 115 L.Ed.2d 836; Rummel v. Estelle (1980) 445 U.S. 263, 284 100 S.Ct. 1133, 63 L.Ed.2d 382.) Neither Steven’s prior criminal history nor the nature of his current offenses warrants a different conclusion in this case.
California appellate courts likewise have consistently rejected claims that sentences imposed under recidivist statutes violate the prohibition against cruel or unusual punishment contained in the California Constitution. (People v. Cooper (1996) 43 Cal.App.4th 815, 820, 826-827; People v. Kinsey (1995) 40 Cal.App.4th 1621, 1630-1631.) Under state law Steven must overcome a “considerable burden” in challenging his penalty as cruel or unusual (People v. Wingo (1975) 14 Cal.3d 169, 174), demonstrating that the punishment is so disproportionate to the crime for which it was imposed it “shocks the conscience and offends fundamental notions of human dignity.” (In re Lynch (1972) 8 Cal.3d 410, 424.) In assessing these claims the Lynch Court identified three factors for reviewing courts to consider: (1) the nature of the offense and the offender; (2) how the punishment compares with punishments for more serious crimes in the jurisdiction; and (3) how the punishment compares with the punishment for the same offense in other jurisdictions. (Id. at pp. 425-427.)
The first prong of the Lynch test does not support a finding of disproportionality. Steven is a third-strike defendant whose prior convictions include (but are not limited to) one for kidnapping and one for assault with a firearm. Steven also suffered a prior conviction in 2000 for making criminal threats and inflicting corporal injury on his spouse, the same offenses for which he has been convicted in the instant case. When the nature of the offense and offender is considered, Steven’s sentence is neither shocking nor inhumane. (See, e.g., People v. Dillon (1983) 34 Cal.3d 441, 479, 482-488 [determinations whether a punishment is cruel or unusual may be based solely on the nature of the offense and offender]; People v. Weddle (1991) 1 Cal.App.4th 1190, 1198-1200.)
As to the second prong of Lynch, Steven argues his sentence is 15 years longer than the statutory minimum for first degree murder and 25 years longer than the statutory minimum for second degree murder. As we have explained, however, Steven is being punished for both his current offense and his prior criminal behavior under a California statutory scheme that expressly mandates more severe punishment for habitual criminals. Statutory schemes mandating increased punishment for recidivists have long withstood challenges on the ground they constitute cruel or unusual punishment. (See, e.g., People v. Cooper, supra, 43 Cal.App.4th at pp. 826-827; People v. Kinsey, supra, 40 Cal.App.4th at pp. 1630-1631; People v. Cartwright (1995) 39 Cal.App.4th 1123, 1134-1137.)
In sum, Steven has not demonstrated his case is that “exquisite rarity” where the sentence is so harsh as to shock the conscience or offend fundamental notions of human dignity. (See People v. Kinsey, supra, 40 Cal.App.4th at p. 1631.) Accordingly, there is no basis to find the sentence unconstitutional under either the United States or California Constitutions. (Lockyer v. Andrade, supra, 538 U.S. at p. 77; People v. Cooper, supra, 43 Cal.App.4th at pp. 826-827.)
DISPOSITION
The judgment is affirmed.
We concur: WOODS, J., ZELON, J.