Opinion
NOT TO BE PUBLISHED
Sup. Ct. No. 04F5800
MORRISON, J.
When defendant was stopped after evading a police officer, a search of the car revealed over $12,000 in cash, a scale and almost three pounds of methamphetamine. A jury convicted defendant of possession of a controlled substance for sale (Health & Saf. Code, § 11378), transportation of a controlled substance (Health & Saf. Code, § 11379, subd. (a)), and evading a police officer while driving recklessly (Veh. Code, § 2800.2). The jury found true two quantity allegations (Health & Saf. Code, § 11370.4, subd. (b)(1); Pen. Code, § 1203.073, subd. (b)(2)). In a bifurcated proceeding, the court found defendant had two serious felony priors (Pen. Code, § 1170.12). Defendant was sentenced to 53 years to life in prison.
On appeal defendant contends the trial court erred in excluding a portion of a telephone conversation between defendant and his mother. He contends the omitted portion of the conversation cast a different light on the admitted portion, as defendant suggested he was framed. Defendant further contends the trial court erred in refusing to grant his motion under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 to strike one of his prior convictions because both his prior convictions arose from the same course of conduct. We find no error and affirm.
FACTS
Officer Chris Jacoby was on patrol the night of August 9, 2004, when he saw a Subaru car traveling down Lake Boulevard at a very slow speed. When the car turned without signaling, the officer noticed the driver was not wearing a seat belt. The driver, defendant, made eye contact with the officer and accelerated.
Jacoby made a U-turn and followed the Subaru. Even with the pedal to the floor he was not catching up to it. Reaching a speed of 70 miles per hour, Jacoby activated his lights and siren. The Subaru continued to flee, crossing the double line on the road several times.
At one point Jacoby lost sight of the Subaru. He turned off his lights and siren and noticed the car by a trailer. He pulled behind the trailer and ordered defendant, who was already out of the car, to stop. Defendant stopped and Jacoby called for backup.
Defendant appeared to be in an altered state of consciousness. He moved erratically and yelled, “Just let me get my boss[.]” Jacoby believed defendant was under the influence of a controlled substance.
Defendant told Jacoby his registration was in the center console. Jacoby opened the console and found plastic scales covered with an off-white residue. He saw a yellow canvas bag in the car. It contained a large amount of money. There was over $10,000 in the bag; the police found $2,000 cash and $950 in money orders in defendant’s wallet.
Defendant told the police not to go near the trunk of the car. Greg Wilkes, the backup officer, thought he was trying to divert them from the passenger compartment. He noticed the seat covers were different colors, and then that the foam was missing from the back of the passenger seat. He lifted the seat cover and found a black canvas bag. Inside were plastic bags containing a white crystal substance. The plastic bags contained 1,258.55 grams of methamphetamine. Defendant’s palm print was found on one of the plastic bags.
Defendant told an agent from the Shasta Interagency Narcotics Task Force (SINTF) that his “homeboy” set him up. His “homeboy” had 100 pounds of methamphetamine and defendant had touched the scales and the packages two days earlier at his “homeboy’s house.” Defendant told the agent he panicked when he saw Jacoby. He tried to explain the large amount of money. He said $7,300 was from the sale of a Thunderbird, that had not been registered in his name, and $2,000 was from work. He was carrying cash because he was going to buy a car; he was test driving the Subaru. Defendant would not name the man he sold the Thunderbird to or the owner of the Subaru.
DISCUSSION
I
Defendant contends the trial court abused its discretion in excluding from evidence a portion of a tape of a jail house conversation between defendant and his mother. Defendant contends the omitted portion of the tape would have negated inculpatory inferences from the admitted portion. He asserts he was entitled to have the omitted portion of the tape admitted into evidence under Evidence Code section 356.
A phone call between defendant and his mother while he was in jail was recorded. In the call, defendant tells his mother they needed to come up with receipts for the money he had. Defendant sought to exclude this evidence under Evidence Code 352, arguing it was more prejudicial than probative. He contended the statements could be read two ways: a legitimate request to collect receipts or an attempt to manufacture receipts to hide ill-gotten gains. The court ruled the evidence was admissible.
Defendant then sought to admit an additional part of the tape. His mother asked him what he was pulled over for. Defendant responded, “I don’t know. Weaving, license plate. . . . It would probably be a framing.” Defendant claimed this portion of the tape “is, essentially, the totality of our defense which is that he’s set up.”
The People objected defendant’s statements were self-serving hearsay. While the other part of the tape was admissible as party admissions, there was no basis to admit this part of the tape.
The trial court ruled that portion of the tape was inadmissible, finding it did not explain or add to the admitted portion of the conversation.
Evidence Code section 356 provides in pertinent part: “Where part of [a] . . . conversation . . . is given in evidence by one party, the whole on the same subject may be inquired into by an adverse party; . . . when a detached . . . conversation . . . is given in evidence, any other . . . conversation . . . which is necessary to make it understood may also be given in evidence.”
“The section permits introduction only of statements ‘on the same subject’ or which are necessary for understanding of the statements already introduced. The ‘other conversation’ referred to in Evidence Code section 356 must have some bearing upon, or connection with, the admission or declaration in evidence. [Citations.]” (People v. Breaux (1991) 1 Cal.4th 281, 302.)
“The general rule that where part of a conversation has been shown in testimony, the remainder of that conversation may be brought out by the opposing party [citations] is necessarily subject to the qualification that the court may exclude those portions of the conversation not relevant to the items thereof which have been introduced. [Citations.]” (People v. King (1966) 240 Cal.App.2d 389, 405.)
“A trial court’s determination of whether evidence is admissible under section 356 is reviewed for abuse of discretion. [Citation.]” (People v. Parrish (2007) 152 Cal.App.4th 263, 274.)
We find no abuse of discretion. Like the trial court, we find no connection between defendant’s statement that the traffic stop “would probably be a framing” and his discussion of the need for receipts for the large amount of money he had. Defendant’s claim that he was “set up” explained at best the presence of the drugs, not the money. Defendant’s defense, presented largely through the reading of the prior testimony of Gina Hubbard, was that the drugs belonged to Hubbard’s husband, who informed on others to protect himself. Defendant did not know about the drugs; he was simply repairing the car. This defense still required defendant to explain why he was carrying over $12,000 in cash, particularly suspicious since his fingerprint connected him to the methamphetamine and he admitted his prints would be on the scales.
Defendant’s problem was that he offered inconsistent explanations for the cash. It was this inconsistency that made his remarks to his mother about the need for receipts damaging, regardless of whether he claimed to be framed. He told the SINTF agent he got $7,300 from the sale of a Thunderbird (that was not registered to him and whose buyer he declined to name), and got $2,000 from work, leaving over $3,000 unaccounted for. At trial, Benson Hodges testified $11,000 of the money was his; defendant worked for him buying and selling cars. Hodges did not recall a Thunderbird being part of the transaction. Further, he never asked the police for the return of his money and brought no paperwork to court to establish his ownership. Defendant never told the police about Hodges.
The trial court did not abuse its discretion in excluding from evidence defendant’s statement, “It would probably be a framing.”
II
Defendant contends the trial court did not act in the spirit of the Three Strikes law when it refused to strike one of defendant’s prior serious felony convictions. Defendant contends the Three Strikes law envisions giving a defendant two chances, two separate prison terms, before imposing the harsh penalty of 25 years to life for a felony. He asserts he did not have two chances because both his prior serious felony convictions arose from the same course of conduct, at the same time and place, and involving the same victim.
Defendant had prior convictions for attempted murder and attempted kidnapping. According to the police report of the incident, both crimes arose from an attack on Jeffrey Szuggar. One afternoon, a woman knocked on Szuggar’s door. When he answered, she motioned and others entered. The five people entering the house were defendant, Wayne Bennett, Pam Pettit, and two unknown women. Defendant, Bennett and Pettit began yelling at Szuggar that they were going to take him to the slough and do him in; they accused Szuggar of stealing Pettit’s jewelry. Bennett hit Szuggar with a stool and defendant beat him about his head and body with a pry bar before attempting to tape Szuggar’s hands behind his back. Szuggar escaped during a struggle; he had tape on his hands and fresh blood in his hair and on his face. Defendant was convicted of attempted murder, attempted kidnapping and assault likely to produce great bodily injury. He was sentenced to nine years in prison on the attempted murder charge; sentence on the other counts was stayed pursuant to Penal Code section 654.
Defendant moved to dismiss one of the prior convictions, stressing that both arose from the same continuous course of conduct. The trial court denied the motion, finding the nature and extent of the priors militated against Romero relief.
In People v. Superior Court (Romero), supra, 13 Cal.4th 497, 529-530, the California Supreme Court held Penal Code section 1385, subdivision (a) permits a court to strike a prior felony conviction under the Three Strikes law. “[I]n ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law, on its own motion, ‘in furtherance of justice’ pursuant to Penal Code section 1385(a), or in reviewing such a ruling, the court in question 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 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.” (People v. Williams (1998) 17 Cal.4th 148, 161.)
The decision not to strike a prior serious felony conviction is reviewed under the deferential abuse of discretion standard. (People v. Carmony (2004) 33 Cal.4th 367, 371, 375.) “In reviewing for abuse of discretion, we are guided by two fundamental precepts. First, ‘“[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.”’ [Citation.] Second, a ‘“decision will not be reversed merely because reasonable people might disagree. ‘An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.’”’ [Citation.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.” (Id. at pp. 376-377.)
Defendant’s argument that the trial court abused its discretion is premised upon the assertion that the Three Strikes law envisions giving the defendant two chances, two separate convictions and prison terms, before imposing the harshest sentence. Defendant’s premise is mistaken. In People v. Benson (1998) 18 Cal.4th 24, our Supreme Court rejected the contention “that the Three Strikes law cannot properly be interpreted to permit separate strikes to be imposed for offenses that in a prior proceeding were determined to have been committed as part of an indivisible transaction, committed against a single victim, and as to which it was concluded that the imposition of separate punishment for each offense would constitute multiple punishment proscribed by section 654.” (Id. at p. 28.) The court found the clear language of the statute “establishes that the electorate intended to qualify as separate strikes each prior conviction that a defendant incurred relating to the commission of a serious or violent felony,” even if the court stayed sentence on the offense under Penal Code section 654. (Id. at p. 31, original italics.)
The Benson court suggested the failure to strike a prior arising out of the same single act might be an abuse of discretion. (People v. Benson, supra, 18 Cal.4th at p. 36, fn. 8.) That is not the case here; defendant committed separate acts in beating Szuggar and threatening to kill him, and then tying him up and attempting to kidnap him.
Since the trial court was not required to strike one of defendant’s priors because they both arose from a single course of conduct, we consider whether the court abused its discretion in not doing so. Defendant argues his prior offenses were situational, not predatory. They were, however, extremely serious and violent. They were also relatively recent at 10 years old, since defendant spent most of the intervening period in prison. The nature and timing of defendant’s priors do not put him outside the spirit of the Three Strikes law. While defendant does not have an extensive criminal record -- his only other conviction apparently is for petty theft -- his crimes are notable for their gravity. Given the seriousness of both defendant’s prior offenses and his current offense, the trial court’s decision not to strike one of his prior convictions is not “so irrational or arbitrary that no reasonable person could agree with it.” (People v. Carmony, supra, 33 Cal.4th at p. 377.)
DISPOSITION
The judgment is affirmed.
We concur: RAYE , Acting P.J., ROBIE , J.