Opinion
C039057. C039449.
10-23-2003
THE PEOPLE, Plaintiff and Respondent, v. BRIAN ODONNELL, Defendant and Appellant.
Following a bench trial, defendant Brian ODonnell was convicted of two counts of second degree robbery (Pen. Code,
§§ 211, 212.5, subd. (c)), with enhancements for one prior serious felony conviction (§ 667, subd. (a)) and three strikes under the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12). The trial court exercised its discretion to dismiss two strikes with respect to one of the current counts, but the court declined to dismiss any strikes with respect to the other count. The court imposed determinate and indeterminate sentences totaling 40 years to life.
Further undesignated section references are to the Penal Code.
Defendant appeals (C039057), claiming: (1) the trial court erred by admitting evidence of a prior robbery under Evidence Code section 1101, subdivision (b), to prove identity; and (2) the courts explanation of its verdict reveals analytical errors. The People also appeal (C039449), claiming the court abused its discretion by dismissing two of the prior strikes with respect to one of the current counts. This court previously consolidated these appeals. Having determined that neither party has shown prejudicial error, we shall affirm the judgment.
FACTUAL BACKGROUND
Defendant was charged with two counts of second degree robbery with firearm enhancements and enhancements based on his prior convictions. The following is a brief summary of the underlying facts and the trial courts explanation of its verdict.
The first robbery occurred shortly after 4 a.m. on August 10, 2000. A clerk was working alone at a gas station and convenience store in West Sacramento. A man entered the store, asked for a match or some matches, and then left. He returned a few minutes later and indicated he wanted to buy Marlboro cigarettes. He initially took out his wallet but then took out an item wrapped in cloth that appeared to be a gun. He demanded the money in the cash register, and the clerk gave him over $800. Before leaving, the robber directed the clerk to lie down.
The clerk found defendants commercial drivers license in front of the counter and later gave it to police. The clerk was, however, unable to make a positive identification of the robber.
The second robbery occurred two days after the first, at approximately 5 a.m. Another clerk was working alone at a different gas station and convenience store in West Sacramento. A man entered the store and apparently asked for a pack of Marlboro cigarettes. It seemed as if he was looking in his pockets for money, but he took out an item wrapped in a black cloth that appeared to be a gun. He then demanded money. The clerk was unable to open the cash register, and the robber said to hurry up and not do anything foolish because he would use "it." The clerk opened the register and gave him $228.
Before leaving, the robber directed the clerk to lie on the floor and put his hands on the ground. After he got up, the clerk noticed a white pickup truck drive away from the general area of the store. The clerk claimed he did not see the robber get into the truck and did not make a statement to the police to that effect, but a police officer testified that the clerk said he saw the robber get into the truck.
The clerks description of the robber apparently differed in some respects from defendant, and the clerk was unable to make an in-court identification. But the clerk positively identified defendant as the robber in a photographic lineup shortly after the robbery and again several months later.
Defendant was arrested in West Sacramento on August 24, 2000. By the time of trial, he had gained weight and his haircut and hair color were somewhat different.
Defense
Defendant denied committing either of the two robberies. He claimed he was staying at a motel with a friend called "Wizard" at the time of the first robbery and was asleep in Carolyn Martins trailer at the time of the second. Martin testified that defendant stayed with her (and the man she described as her common law husband) for approximately 10 days to two weeks before defendant was arrested. She claimed defendant had been there every night.
Defendant drove a four-door Saturn and claimed he never had access to a white pickup truck, and Martin also indicated she had not seen him drive that type of vehicle. Defendant kept his drivers license in the glove compartment of his car. He remembered using the license on July 26 and once afterwards. He indicated he sometimes left his car unlocked or left the windows partially down and that other people had also been in the car. Defendant indicated he might have stopped at the stores involved in the robberies at some point.
Defendant admitted a 1988 conviction for false imprisonment with the use of a firearm and 1993 convictions for two robberies. He explained that in the prior robberies he had used a stick-like object wrapped in cloth to simulate a gun. No one was hurt in any of the incidents. Earlier in the trial, additional evidence was introduced concerning one of the robberies, which will be discussed in greater detail with respect to defendants first appellate claim.
Defendants Employment
Evidence was also presented at trial concerning defendants most recent employment. He was hired as a truck driver after an interview in June 2000. He claimed he told the supervisor who hired him about a prior robbery conviction (although he admitted lying about the details), but the supervisor testified that defendant never mentioned a robbery. Defendant was terminated in July after he failed to attend a training class. He claimed he quit.
Later in July, defendant called the company to ask about picking up his paycheck. The next day the employee who had defendants check found that his office door had been jimmied and the check was missing, but nothing else appeared to have been disturbed. Defendant claimed he went to the office in the afternoon, the door was unlocked, and he took the check.
Trial Courts Ruling
The trial court gave a detailed explanation for its verdict. First, the court found that the police officer who took the second clerks statement erred in reporting that the clerk said the robber got into the pickup truck. The court emphasized that the clerk "was clear at trial that that is not what he told [the police officer] at the time, thats not what he saw at the time and that all he saw was a pickup truck leaving."
The court commented that a review of surveillance videotape indicated that, after the first robbery, the clerk picked up an item (defendants license) that had first appeared a few feet from the counter while the robber was holding his wallet. The court further emphasized that the surveillance videotape and photographs made from the tape plainly indicated the same person robbed both stores.
The court noted that all of the elements of the robbery offenses were proved and the issue was whether defendant was the robber. The court commented that defendant had the means, motive, and opportunity to commit the crimes and had committed similar robberies based on the evidence presented and his own admissions. But the court commented that more evidence was required to show he was the current robber.
The court then emphasized that the second clerk had twice identified defendant as the robber based on his photograph. The court commented that the photographic lineup was fair and defendants current appearance was different. The court emphasized it had compared the appearance of defendant in different photographs with his current appearance and with the robbers appearance in the surveillance videotape. In fact, defendant had posed for the court at trial to facilitate a comparison.
The court found defendants testimony as a whole to be "riddled with matters that were testified to untruthfully, either intentionally or not." The court questioned his claim that he told his supervisor about a robbery conviction. The court stated that defendant "gave a vague description and was evasive under several repeated questions to get out what was the crime admitted." He "couldnt remember what lie he had made up to [his supervisor] and so he wasnt going to commit to something here, but he was sure that he told [the supervisor] about a robbery." The court noted that the supervisor was "sure that that was not the case." The court concluded, "So Im not sure why, but [defendant] in, apparently, an attempt to put himself in a good light. [Sic.] But that was testifying falsely. Of course, theres a jury instruction that says a person who is willfully false in one portion of the testimony can be disregarded in the remainder of the testimony unless other particulars tend to point to the truth of the testimony." The court discussed the inconsistency between defendants testimony and the supervisors about whether defendant was fired and commented favorably on the supervisors truthfulness.
The court commented that Martins testimony suggesting defendant was at her trailer at the time of the second robbery was of "some importance, but it does not carry much probative value on that particular issue."
The trial court concluded: "Because of all of these circumstances, not only are the robberies proved beyond a reasonable doubt in both cases and because it is true that the same person committed both robberies and then going back to the drivers license, the robber dropped that drivers license, there is no doubt in the Courts mind that the robber dropped that drivers license and theres no indication that [defendant] was not in possession of his drivers license at the time. He said he kept his wallet and his ID, his drivers license in the glove box. Well, the person who robbed that store pulled out a wallet and dropped an ID. And so it is logical that the person took that from the glove box, [defendants] glove box. [¶] In viewing [the first surveillance videotape] and comparing that to how [defendant] is now but with, as I said, keeping in mind a different look to his hair, there is no doubt in the Courts mind that the person on [the videotape] is [defendant]. And [the second clerks] testimony also shows that it was [defendant]. And since the same person committed both crimes, regardless of which . . . of those identifications are taken, it is that [defendant] committed both crimes."
The court concluded that the witnesses testimony did not convince it that defendant used a firearm or weapon within the meaning of the enhancement allegations.
DISCUSSION
I. Prior Robbery Conviction
Defendant claims the trial court erred by admitting evidence of a prior robbery under Evidence Code section 1101, subdivision (b), to prove identity. The evidence was later admitted at trial pursuant to a stipulation concerning the victims testimony. According to the stipulation, a clerk was working alone at a Baskin Robbins in Salinas, California, on August 29, 1993. Before opening at 11 a.m., she saw defendant pass by the front door. After she opened the store, defendant confronted her with a towel wrapped around what she thought was a gun. He demanded the money in the cash register and ordered her into a back room. Defendant took cash from a bank bag on the counter, left through the front door, and drove away.
Evidence Code section 1101, subdivision (a), prohibits character evidence, including specific instances of misconduct, to prove the conduct of a person on a specified occasion. But Evidence Code section 1101, subdivision (b) provides: "Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act."
Before trial, the People asked to admit evidence of the crime, referring to issues of intent, motive, common plan or design, and identity. The People specifically commented that there were "sufficiently distinctive common factors in order to prove identity." Defense counsel asserted that the real issue was identity and claimed the prior offense was not sufficiently similar and distinctive to be introduced for this purpose. The trial court agreed that some of the factors in the prior robbery were common, but emphasized that defendant used a firearm or simulated firearm wrapped in some type of cloth. The court concluded that the crime was sufficiently similar to the current charges to be probative. The court further found the evidence admissible under Evidence Code section 352.
Although on appeal the People suggest that the evidence could have also been admitted for other purposes, it appears the trial court considered it to be relevant to the issue of identity, as defendant claims. Further, there is little dispute concerning many of the other elements, such as the robbers intent or conduct at the time of the robbery, and the prior crimes provide little evidence of defendants current motive. Accordingly, we consider defendants argument that the court improperly and prejudicially admitted the evidence for purposes of establishing identity.
"To be relevant on the issue of identity, the uncharged crimes must be highly similar to the charged offenses." (People v. Kipp (1998) 18 Cal.4th 349, 369.) "`The pattern and characteristics of the crimes must be so unusual and distinctive as to be like a signature." (People v. Ewoldt (1994) 7 Cal.4th 380, 403.) Defendant cites facts in reported cases to support his argument that the similar factors in the crimes are common and not unusual. Even assuming arguendo that defendant is correct and the prior robbery is not sufficiently similar and distinctive as to amount to a signature, we find any error in admitting the evidence to be harmless.
Preliminarily, we emphasize defendant elected to have a bench trial rather than a jury trial. Presumably, the potentially unfair prejudicial impact of this type of evidence was minimized under these circumstances. Moreover, when it rendered its decision, the trial court made only a brief comment about the prior offense. The court subsequently indicated more was required to show he was the robber here. Accordingly, it appears that the evidence of the prior robbery was not a significant factor in the courts decision.
In fact, the trial courts other findings establish that defendant was guilty irrespective of the evidence of the prior offense. The court indicated the same man committed both of the robberies at issue and the robber dropped defendants license. The court noted that defendant had been positively identified by one of the clerks and that the court had reviewed the videotape and related photographic evidence. Finally, the court emphasized it had "no doubt" defendant was shown on the first surveillance videotape.
Although defendant suggests that the videotape and photographs taken from the tape are less than clear, we have reviewed the evidence and agree it depicts an individual similar in appearance to defendant. Further, we note that the trial court had the benefit of in-court comparisons with defendant.
II. Trial Courts Decision
Defendant argues, "A close inspection of the trial courts explanations shows that the court, in several important instances, applied incorrect rules of law, misapplied correct but inapplicable rules of law, or incorrectly applied the facts to the law, all to [defendants] detriment."
Preliminarily, we emphasize that any review of the trial courts verdict is limited. There is a presumption that the court properly followed established law absent evidence to the contrary. (See, e.g., Ross v. Superior Court (1977) 19 Cal.3d 899, 913.) Here, we conclude defendant has failed to show the court erred because its statements explaining its decision are readily reconciled with the law and its conclusions. (See generally Allen v. Sundean (1982) 137 Cal.App.3d 216, 224 [appellate court must reconcile trial courts "superficially inconsistent" findings, if possible, rather than presume prejudicial error].) We address each of defendants three arguments in turn.
A. Defendants Testimony
First, defendant takes issue with the trial courts treatment of his testimony. He seizes on the courts comment that his testimony was "riddled with matters that were testified to untruthfully, either intentionally or not" and the courts later reference to the jury instruction about a witness who gives willfully false testimony. According to defendant, the courts comments indicate it improperly questioned his credibility by relying on testimony it was unsure was willfully false. And he notes that the jury instruction the court referred to applies to a witnesss testimony that is false with respect to a material point, which he claims is not the case here. (See CALJIC Nos. 2.21.2, 2.21.1.)
CALJIC No. 2.21.2 provides: "A witness, who is willfully false in one material part of his or her testimony, is to be distrusted in others. You may reject the whole testimony of a witness who willfully has testified falsely as to a material point, unless, from all the evidence, you believe the probability of truth favors his or her testimony in other particulars."
Defendants argument is strained. The trial courts comments as a whole reflect its reasonable assessment that defendant was not be trusted. The court found that defendant was "vague" and "evasive" on the stand. The court further indicated that he was testifying falsely to put himself in a good light. Under the circumstances, the courts comment that defendants testimony was "riddled" with intentional or inadvertent untruths is not inconsistent with finding that at least some of defendants testimony was willfully false. And the court correctly stated that the jury instruction refers to a witness who is willfully false, indicating it did not misapprehend the law on this point.
Further, even assuming arguendo that some of the testimony the court referred to was not related to a material matter, there is no reason to presume the courts specific comments about defendants testimony encompassed all of the courts observations. In fact, the courts preliminary comment indicating defendants testimony "as a whole" was riddled with untruths suggests the court considered matters other than those it specifically discussed. In short, defendant has not presented sufficient grounds to show the trial court erred in its evaluation of defendants testimony.
B. Defendants License
Second, defendant challenges the trial courts statements about the robber dropping his license. Defendant concedes there was evidence to support the courts conclusion that it was the robber who dropped it, but he claims one logical inference is that it had been taken (by persons unknown) from his car. Defendant notes that in situations in which circumstantial evidence supports alternative inferences, the trier of fact should indulge the inference that favors defendant. (See CALJIC No. 2.01; People v. Millwee (1998) 18 Cal.4th 96, 160.) Defendant refers to the trial courts comment that there was no indication he was not in possession of the license, and he claims the courts statement reflects a skewed evaluation of the evidence and the reasonable inferences that may be derived from it. According to defendant, "there were indications in the evidence that [defendant] was not in possession of the drivers license at the time of the robbery." (Orig. emphasis.)
Again, the trial courts statement should be considered in context of its other findings and the evidence presented. It is of course true that some evidence offered by the defense, particularly defendants own testimony, implies that someone could have taken his license. But the court reasonably questioned defendants credibility. And there was no indication defendant reported the license stolen or other compelling corroborative evidence establishing that someone had actually taken it and defendant did not have it. Under the circumstances, the court reasonably commented on the evidence.
C. White Truck
Finally, defendant claims the trial court improperly rejected the police officers testimony that the second clerk said the robber left in the white truck. According to defendant, "[t]he courts dismissal of this defense testimony from a police officer, trained in making accurate reports, was unacceptable." Defendant claims the clerk had "credibility and memory problems" relating to certain other details, such as the description of the robbers appearance.
Defendant is essentially asking this court to reweigh the evidence. But "[t]he trier of fact is the sole judge of [the witnesses] credibility [citation], because only the trier of fact has the opportunity to observe and hear the witnesses." (People v. Jackson (1992) 10 Cal.App.4th 13, 20.) "`"To warrant the rejection of the statements given by a witness who has been believed by the [trier of fact], there must exist either a physical impossibility that they are true, or their falsity must be apparent without resorting to inferences or deductions."" (People v. Barnes (1986) 42 Cal.3d 284, 306, orig. brackets.)
III. Dismissal of Strikes
The People claim the trial court abused its discretion by dismissing two prior strikes with respect to one of the current offenses.
The trial court has discretion under section 1385, subdivision (a), to dismiss prior strikes. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529-530.) "[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 . . . 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 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 (Williams).)
In People v. Garcia (1999) 20 Cal.4th 490, 499 (Garcia ), the Supreme Court held that the reasoning of Romero, supra, 13 Cal.4th 497, and the standards articulated in Williams, supra, 17 Cal.4th 148, supported separate consideration of a defendants current counts for purposes of dismissing prior strikes. The court emphasized that the nature and circumstances of the current felonies may differ. (Garcia, supra, at p. 499.) Moreover, even current offenses that "are virtually identical" may warrant different consideration in that "a defendants `prospects [citation] will differ greatly from one count to another because a Three Strikes sentence on one count will itself radically alter those prospects." (Id. at p. 500.) Indeed, the sentence imposed is "the overarching consideration because the underlying purpose of striking prior conviction allegations is the avoidance of unjust sentences." (Ibid.)
Accordingly, we briefly review additional information pertinent to these factors before considering the trial courts reasons for its decision.
A. Defendants Background and Record
Defendant was 34 years old when he committed the offenses at issue in the instant case, and he is divorced with three children. It appears he had a difficult upbringing with an abusive and alcoholic father, and he received letters of support from some of his relatives. Defendant has some technical training, and he also received letters of support from some former employers. There is evidence defendant has had problems relating to his use of drugs and alcohol.
Defendant sustained convictions for misdemeanors or other lesser crimes committed in 1984, 1985, 1987, and 1992. Defendants first strike arose from a 1988 felony conviction for false imprisonment (§ 236) with the use of a firearm (§ 12022.5). A memorandum prepared by the probation department includes the following description of the incident: "Apparently, a dispute developed between the defendant and a friend wherein both were reportedly heavily under the influence of alcohol, and/or controlled substances. The police were called, with allegations that the defendant had a gun. When police arrived it was felt that the situation was serious enough to arrest the defendant." Defendant was placed on probation and ordered to serve a jail term.
Defendants second and third strikes stemmed from 1993 convictions for separate counts of robbery. (§ 211.) The robbery of a Baskin Robbins was previously described in greater detail. The other robbery likewise involved a small store and defendants use of a device wrapped in a cloth that the clerk believed was a weapon. Defendant was sentenced to state prison for these crimes.
Defendants performance after being released on parole was poor. He tested positive for cocaine on multiple occasions and committed other parole violations resulting in additional periods of incarceration. Defendant was discharged from parole less than three months before committing the crimes at issue in the instant case.
B. Sentencing
In deciding whether to dismiss defendants prior strikes, the trial court emphasized it would not "dispense with the rule of law in order to achieve the Courts personal notion of what would be a just result." The court explained that "under [Williams, supra, 17 Cal.4th 148], this Court is to consider the defendants past, the present offenses, and the defendants prospects." The court emphasized it would consider the two current counts separately with respect to its decision.
Although the People do not raise the issue, we note that the reasons for the trial courts exercise of its discretion under section 1385, subdivision (a), must be in an order entered on the minutes. (See Williams, supra, 17 Cal.4th at pp. 159, 161.) Here, the court had the sentencing hearing transcribed and attached to the minutes as the record of the courts reasons for its decision.
The court then discussed the relevant factors, stating: "So I want to talk about the strikes first. Regarding the false imprisonment conviction, that is not atypical of other false imprisonments, but not the most egregious false imprisonment, even with a firearm, that [has] occurred.
"Regarding the two [prior] robberies, . . . while they were committed in a manner that could reasonably put a person in fear of his or her own safety, they were not done in a manner that actually inflicted any injury upon the person, nor apparently were they actually committed with firearms but rather simulated weapons at that time, just like the present ones.
"Now, looking at the other matters of [defendants] past, it does appear that he grew up in a family situation that none of us would choose to grow up in. And it has had a devastating affect on his ability to deal with things. It has not, though, put him in a position where he is unable to tell right from wrong. It has not turned him into someone who is criminally insane. It has not turned him into someone who cannot work, and obviously he is able to carry a job, but his background has been horrendous prior to him engaging in criminal activity.
"As far as his future prospects go, there is a tremendous amount of family support, and it appears that the family may be ready at this time to provide that support to [defendant], and it has not been provided in the past. It may be that [defendant] will be able to avoid future wrongdoing.
"When it comes to these present offenses, Ill take the two of them separately, and Ill start with the August 12th offense, the second one, that is an offense which was committed two days after the first robbery. [Defendant], at that time, knew that he was committing a second robbery under the same types of circumstances. That makes it a more egregious offense. He is starting to develop a pattern or to fall back into an old pattern. And if left to himself and without being apprehended, it is quite possible, and I dare say likely, that [defendant] would have committed a third robbery, and he would have kept going until caught. That makes it a more egregious robbery than the first one, which is the robbery done without having recently committed another robbery. He didnt have in mind he has now become a repeat offender or this was going to become a habit. There was no indication at the time of the first robbery he had a plan to continue committing robberies.
"And in taking all of the factors together, when it comes to the August 12th offense, the one that is the second robbery, and under the circumstances, it would be an [abuse of] discretion to strike any of the strikes under Romero.
"Regarding the first robbery, because it is of a different nature, and considering that present offense and then taking into account the other two factors under [Williams, supra, 17 Cal.4th 148] and [Romero, supra, 13 Cal.4th 497] that I said do operate and has identified them, [as] factors to consider, and I gave them some particulars, it does appear that the Court is within its discretion in striking two of the strikes; the false imprisonment and the first 199[3] robbery, so that there is one strike that applies to Count 1.
"Based on that, the Court has also considered the factors in aggravation and mitigation and find[s] that the aggravating factors outweigh the mitigating factors, and [defendant] is subject to a term of ten years state prison."
C. Analysis
The People claim the trial court minimized aggravating circumstances under the California Rules of Court and failed to give proper weight to defendants "unrelenting record of recidivism."
Preliminarily, we note that the trial court did consider relevant aggravating factors. Although the court dismissed two strikes with respect to one of the robbery counts, it actually imposed the upper term for that offense, finding that the aggravating factors outweighed the mitigating factors. The term was then doubled based on the remaining strike enhancement. Further, the court plainly understood the limitations on its discretion to dismiss strikes and the criteria established by the Supreme Court. The court specifically referred to the factors articulated by the court in Williams, supra, 17 Cal.4th 148.
The trial court reasonably commented on these factors. In commenting on defendants prior strikes, the court did not suggest they were insignificant. Rather, the courts comments simply reveal that it did not believe defendants prior offenses were particularly egregious or violent when compared with similar offenses. There was evidence defendant had used simulated firearms in the prior robberies and that no one was hurt. Turning to defendants current offenses, the court reasonably characterized the second as more serious than the first because it suggests defendant had returned to a recidivist, criminal lifestyle. As indicated by defendants abortive attempt at securing employment before the first robbery, defendant had, albeit briefly, attempted to earn a living. The court reasonably commented on defendants unfortunate background, the fact that his family might now be willing to provide support, and that defendant was capable of working. The court concluded that defendant "may . . . be able to avoid future wrongdoing."
Having evaluated the relevant factors, the court actually imposed an indeterminate "third-strike" sentence of 25 years to life as to one of the counts and the increased "second-strike" sentence for the other count. Consequently, defendant, who was in his mid-thirties when he committed the crimes in this case, is now serving a lengthy sentence totaling 40 years to life. Given the sentence imposed, the courts decision to dismiss two strikes as to a single count reflects its understanding that defendant fell largely within the spirit of the three strikes law but not entirely so, in that the relevant factors did not warrant two life sentences.
The trial court properly exercised its discretion. In so holding, we agree with the People that defendant is the type of recidivist offender for whom the three strikes law was established. But "the fact remains that the trial court did impose a Three Strikes sentence in this case. We merely find it had discretion not to impose [the indeterminate sentence] twice." (Garcia, supra, 20 Cal.4th at p. 503, fn. 3.)
DISPOSITION
The judgment is affirmed.
I concur: MORRISON , J.
I concur but write separately to express my views regarding the admissibility of evidence of defendants prior robbery and the trial courts decision to strike defendants prior serious felony convictions for the purpose of sentencing on one of his two current robbery convictions.
The majority concludes it is unnecessary to decide whether it was proper to admit evidence of the circumstances of the robbery defendant committed in 1993. In the majoritys view, even if that robbery was not sufficiently similar to the current robberies to make it admissible on the issue of identity, defendant was not prejudiced by the courts ruling because the other evidence of his guilt was strong. While I agree defendant suffered no prejudice, that analysis is unnecessary since the trial courts ruling was not an abuse of discretion. The modus operandi of the robbery that defendant committed in 1993 (using an object wrapped in a towel to simulate having a gun while robbing a small store at a time when only one employee was working) was substantially similar to the nature of the robbery committed on August 10, 2000 (using an object wrapped in clothing to simulate having a gun while robbing a small store at a time when only one employee was working) and the robbery committed on August 12, 2000 (using an object wrapped in cloth to simulate having a gun while robbing a small store at a time when only one employee was working). Thus, it had a tendency in reason to indicate that defendant was the culprit in the latter robberies. Defendants effort to distinguish the three robberies based on the different type and color of the cloth used in each crime is unconvincing. And the fact other robbers have used objects covered with cloth, a newspaper, a bag, etc., does not mean Evidence Code section 1101 precluded introduction of the prior robbery evidence. Admissibility does not depend upon whether the particular modus operandi is so unique that no one else has ever used it.
The Peoples challenge to the decision to strike defendants prior serious felony convictions for the purpose of sentencing on one of his current robbery convictions is a much closer question. It is difficult to understand how this recidivist robber with other convictions, who has failed on both probation and parole, falls outside the spirit of the "three strikes law" for the first of the two robberies he committed just three months after being discharged from prison. However, I cannot say that the trial courts carefully articulated ruling that resulted in determinate and indeterminate sentences totaling 40 years to life was arbitrary, capricious, or beyond the bounds of reason. Hence, I cannot say that the court abused its discretion.
Accordingly, I concur in affirming the judgment.
SCOTLAND, P. J.