Opinion
C040879.
7-15-2003
THE PEOPLE, Plaintiff and Respondent, v. JOSE PEREZ, Defendant and Appellant.
In case No. SF083414A, the trial court convicted defendant Jose Perez of failing to register as a sex offender (Pen. Code, § 290, subd. (a)(1)(D); further undesignated statutory references are to the Penal Code), and found charged prior convictions to be true.
In case No. SF082861A, a jury acquitted defendant of attempted robbery ( §§ 664/211) but convicted him of one count of corporal injury on a cohabitant (Pen. Code, § 273.5, subd. (a)), three counts of assault with a deadly weapon ( § 245, subd. (a)(1) and three counts of making criminal threats (§ 422). Charged enhancements ( §§ 12022, subd. (b)(1), 12022.7, subd. (a)) and charged prior convictions were found to be true.
Sentenced to an aggregate prison sentence of 80 years to life, defendant appeals, contending that (1) the trial court abused its discretion in permitting the prosecutor to reopen its case in the registration matter; (2) there is insufficient evidence to support his conviction on one of the criminal threat charges; (3) the sentence enhancements relating to one of the convictions for making criminal threats must be stricken; (4) the court erred in failing to instruct on the lesser included offenses of misdemeanor battery and simple assault; (5) the court abused its discretion in refusing to strike the prior convictions; and (6) the sentence imposed violates the proscription against cruel and unusual punishment. None of these claims has merit. We affirm the judgment.
FACTS AND PROCEDURAL HISTORY
Defendant lived with his girlfriend, Michelle Piona, at her house on Eugenia Street in Stockton. Much to defendants displeasure, many other members of Pionas extended family, including a number of young children, lived with them.
On the morning of August 2, 2001, defendant and Piona walked to a nearby park, where they argued about their living arrangements. Defendant told Piona to sit down on a park bench. When she refused, defendant pulled out a knife and threatened to stab her if she did not comply. He said he would kill her if she did not stay and talk to him. He then put the knife against Pionas stomach and scratched her with it.
Later that afternoon, Piona was at nearby welfare office with her 16-year-old daughter, Angel, and a friend, Patricia Drips. When defendant rode his bicycle to the same office and tried to get their attention, Piona became concerned that he might make a scene, so she went outside to speak to him. Defendant wanted Piona to leave with him, but she refused.
As the three women began walking home, defendant rode his bicycle next to them, and said he wanted to talk to Piona alone. Defendant tried to edge his bicycle into the group in an attempt to separate Piona from the others. Piona tried to avoid defendant, and her companions tried to protect her. Emotions escalated as defendant repeatedly nudged his bicycle into Drips and Angel. At one point, defendant grabbed Pionas arm and purse and pulled her in one direction, while Angel and Drips tried to pull her away from defendant.
Piona escaped defendants grasp and ran. Angel jumped in front of defendant and held him to prevent him from going after her mother. Defendant yelled, "Bitch, Im going to hurt you." He added that "no bitch is going to lay . . . her hands on him." He pulled out a knife and threatened to kill Angel. He said that if Drips or Angel interfered in his relationship with Piona, he would kill them.
Defendant stabbed Angel in the arm. He then left the scene.
Angels wound required seven or eight stitches to close. Police officers interviewed the three women.
Defendant was apprehended on the street a short time later. He told the officers that he lived on Eugenia Street in Stockton, and had lived there for one year. Before that, he said, he had lived at an address on Lincoln Street.
Defendant had previously been convicted of two sex offenses (§ 288, subd. (a)) and was required to register as a sex offender. He acknowledged this obligation in a form he signed in 1998, and he had registered in February 2000, and again in August 2000 when he moved to the Lincoln address. He had been required to reregister within five days of his birthday in February 2001 but had not done so. Nor did he reregister when he moved to the Eugenia address.
Defendant was charged with failure to register ( § 290, subd. (a)(1)(D)) in case No. SF083414A. This information also alleged two prior serious felony convictions within the meaning of sections 1170.12, subdivision (b), and 667, subdivision (d).
The information in case No. SF082861A charged defendant with inflicting corporal injury on a cohabitant ( § 273.5, subd. (a)), three counts of making criminal threats ( § 422), three counts of assault with a deadly weapon or by means of force likely to produce great bodily injury ( § 245, subd. (a)(1)), and one count of attempted robbery ( §§ 664/211). The information also included enhancements for use of a knife (§ 12022, subd. (b)(1)) and the infliction of great bodily injury ( § 12022.7, subd. (a)), and alleged prior convictions under the three strikes law ( §§ 667, subd. (d), 1170.12, subd. (b)).
Evidence relating to the failure-to-register charge was presented in a bench trial. The court found defendant guilty, and also found the charged priors to be true.
The remaining charges were the subject of a jury trial. Drips and Angel testified and described the events. Piona was a reluctant witness and told the jury that she did not want to testify. She said that defendant was still her boyfriend, and she did not remember much of what had happened. She suggested that Angel might have been cut during the fracas by coming in contact with a knife Piona had in her purse. Piona had not raised this theory any time before trial. She denied defendant had threatened her, or hurt her, with a knife at the park in the earlier incident, and she denied many of the statements ascribed to her by police.
However, Piona later had a change of heart, and she was recalled to testify. She said that she had argued with defendant at the park on the morning of August 2. Defendant threatened to stab her with a knife, and then did so. She stated that she told the truth when she spoke to police officers immediately after the afternoon events.
The jury acquitted defendant of the attempted robbery charge, but convicted him on the remaining counts, and found the charged enhancements to be true. The trial court found the charged priors to be true and sentenced defendant to an aggregate term of 80 years to life
This appeal followed.
DISCUSSION
I
Reopening of Prosecutions Case
In case No. SF083414A, defendant was charged with failure to register as a sex offender. The information also charged two prior felony convictions.
The prosecutor introduced evidence relating to defendants registration requirements and his failure to meet those obligations. A police officer testified he took fingerprints from "Jose Perez," and another officer matched those to the prints included in the records from the earlier case. After the prosecutor rested, he realized that he had inadvertently failed to move the exhibits into evidence, and the court permitted him to reopen the case to admit these exhibits.
The prosecution then rested again.
In argument, defendant pointed out that no evidence had been presented to identify defendant as the Jose Perez whose prints had been taken the previous day. The prosecution responded that any evidentiary gap was "hypertechnical[]." The trial court found this lapse to be inadvertent, and permitted the prosecution to reopen to present this evidence, ruling that reopening would not cause confusion or prejudice. The police officer then testified that defendant was the person whose prints he had taken.
The parties rested again, and the court took the matter under submission. When court reconvened later that day, the judge returned its verdict and found defendant guilty. The court immediately added, "Would you like to set this matter over for sentencing? Would you like to refer it to probation?" Defense counsel responded that the matter should be referred. The prosecutor immediately raised the matter of the prior convictions. Defense counsel asked, "Is this a reopening again?" and the parties held a discussion in chambers.
Upon reconvening in open court, the court stated, "Okay. Returning to the matter of People versus Jose Perez in case SF82414, in which the Court made its finding in regard to Count 1 and referred the matter to probation for a presentence report. The Court neglected to address the two alleged priors." The prosecutor confirmed that he was now asking the court to decide that matter.
Defense counsel objected, stating, "It appears to be another reopen. The matter has been resolved. It was submitted to the Court."
The court agreed to the prosecutors request "that the Court complete its duties to make findings as to the alleged priors." No further evidence was adduced. The court found the two charged priors for violating section 288, subdivision (a) to be true.
On appeal, defendant contends the court abused its discretion in permitting the prosecutor to reopen his case a third time. We disagree.
Defendants argument is premised on a misperception. Defendant contends the prosecutor "asked yet a third time to reopen in order to present evidence of the charged prior serious convictions." But that is not accurate. The prosecutor did not present any additional evidence but merely pointed out to the court that it had not completed its task and still had to make findings regarding the charged priors. The court made those findings based on evidence that had already been admitted. There was no reopening of the case for additional evidence.
Although defendants claim focuses on this third alleged "reopening," his argument includes not-so-veiled challenges to the courts earlier decisions to permit the prosecutor to introduce additional evidence, decisions defendant contends served only to excuse "incredible sloppiness on the part of the prosecutor . . . ." There was no error.
We apply an abuse of discretion standard in reviewing a trial courts decision to permit the reopening of a criminal case. (People v. Ayala (2000) 23 Cal.4th 225, 282.) Among the factors we consider are: (1) the stage the proceedings had reached at the time of the motion, (2) the diligence of the moving party in presenting the new evidence, (3) the likelihood that the jury would accord the new evidence undue emphasis, and (4) the significance of the proffered evidence. (People v. Funes (1994) 23 Cal.App.4th 1506, 1520.)
All of these factors point to a proper exercise of the trial courts discretion.
The court first permitted the prosecutor to reopen the case in order to admit exhibits into evidence. The court specifically found this omission to have been an oversight. The case was being heard in a bench trial, so factors relating to a jurys perceptions were immaterial. The exhibits were a critical part of the prosecutions case. Reopening the case to permit their admission did not adversely affect the proceedings.
The same is true of the second reopening that permitted the prosecutor to call a witness to clarify that fingerprints previously described as those taken from "Jose Perez" were in fact taken from defendant. Again, this link was critical to the prosecutions case. The trial court found this evidentiary gap to be the result of inadvertence, and it concluded that allowing the case to be reopened would not cause undue delays or otherwise prejudice defendant.
Each of these determinations was well within the discretion of the trial court. There was no error.
II
Sufficiency of the Evidence
Defendant contends his conviction on count 008, making a criminal threat to Drips, must be reversed, because there was no evidence that his threat caused Drips to be in fear for her safety, a necessary element of section 422. We disagree.
"When the sufficiency of the evidence is challenged on appeal, we apply the familiar substantial evidence rule. We review the whole record in a light most favorable to the judgment to determine whether it contains substantial evidence, i.e., evidence that is credible and of solid value, from which a rational trier of fact could find beyond a reasonable doubt that the accused committed the offense." (In re Ryan D. (2002) 100 Cal.App.4th 854, 859; People v. Johnson (1980) 26 Cal.3d 557, 578, 162 Cal. Rptr. 431, 606 P.2d 738.)
Section 422 provides, in relevant part: "Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, . . . is to be taken as a threat . . ., which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for . . . her own safety . . ., shall be punished by imprisonment in . . . the state prison." (Italics added; see generally In re Ryan D., supra, 100 Cal.App.4th at pp. 859-861.)
Defendant emphasizes that Drips testified at trial that she was scared when Piona and defendant struggled, and she was concerned for Pionas safety. Defendant contends there was no evidence that Drips was frightened for her own safety by defendants threats and, in fact, Drips testified at trial that she did not remember any threatening statements being made.
That is only half the story. Drips also testified that she could not remember what she told police officers immediately after the incident, but she knew she told them the truth. In his testimony, Officer Ramirez described that conversation with Drips. Drips was scared and upset. She told Ramirez that defendant had threatened that if she and Angel were to interfere in his relationship with Piona that "he would kill them." Drips expressly told Officer Ramirez that this threat frightened her.
The subjective fear that Drips experienced was objectively reasonable. (See In re Ricky T. (2001) 87 Cal.App.4th 1132, 1140.) Drips knew defendant had scratched Pionas stomach with a knife earlier when Piona would not sit down as defendant demanded, and she had witnessed his attack on Angel during the fracas with Piona. She was frightened when defendant pulled out a knife, and she was concerned that he might attack her. (See People v. Martinez (1997) 53 Cal.App.4th 1212, 1221.)
Given these circumstances, substantial evidence supports defendants conviction for violating section 422.
III
Validity of Enhancements
The jury convicted defendant of making a criminal threat to Angel as charged in count 006, and also found that defendant used a knife ( § 12022, subd. (b)(1)) and inflicted great bodily injury ( § 12022.7, subd. (a)) in the commission of this offense. Defendant contends these enhancements must be stricken, because "it is inherently impossible to use a knife or cause great bodily injury by the use of language." Defendant misperceives the nature of these enhancements.
Defendant cites no authority for his claim, and instead contends this is a matter of first impression and is therefore based on "common sense" and "logic" rather than case law. He asserts that this matter has not come up before because most prosecutors "would immediately realize the absurdity of coupling physical enhancements with a language offense and would not do so."
This situation is not as unique as defendant thinks. Other cases have, in fact, linked charges of making a criminal threat to enhancements for weapons use. (E.g., People v. Martinez (1999) 20 Cal.4th 225, 230, 973 P.2d 512; People v. Brown (1993) 20 Cal.App.4th 1251, 1252.) Defendants confusion stems from the fact that he believes an enhancement is proper only if the substantive offense is caused by the weapons use or injury enhancement. But that is not the case. An enhancement alleges that the enhancing event occurred "in the commission of" the substantive offense, not that it "caused" the substantive offense.
The enhancements at issue provide increased punishments for any person "who personally uses a deadly or dangerous weapon in the commission of a felony" ( § 12022, subd. (b)(1)), and any person "who personally inflicts great bodily injury on any person . . . in the commission of a felony" ( § 12022.7.) These increased penalties were designed to deter the use of weapons and the infliction of serious bodily injury. (People v. Bland (1995) 10 Cal.4th 991, 1001, 898 P.2d 391; People v. Guzman (2000) 77 Cal.App.4th 761, 765; People v. Johnson (1980) 104 Cal. App. 3d 598, 608, 164 Cal. Rptr. 69.)
As the California Supreme Court has explained, "the statutory language in the commission of a felony means any time during and in furtherance of the felony." (People v. Bland, supra, 10 Cal.4th at p. 1001; accord, People v. Fierro (1991) 1 Cal.4th 173, 225-226, 821 P.2d 1302.)
Here, defendants use of a knife to stab Angel was transactionally related to the threats made to Angel. (See People v. Bradford (1995) 38 Cal.App.4th 1733, 1738-1739.) In fact, it was part and parcel of his threat to kill her. By using a deadly weapon and inflicting great bodily injury, defendant increased the dangers inherent in the situation, the precise evil these statutes were intended to prevent. The enhancements were proper.
IV
Failure to Instruct on Lesser Included Offenses
Defendant contends the court erred in failing to instruct on (1) misdemeanor battery as a lesser included offense to corporal injury on a cohabitant, and (2) simple assault as a lesser included offense to the counts charging violations of section 245, subdivision (a)(1). Neither claim can succeed.
The trial court has an obligation to instruct on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense are present, but the court does not have such an obligation if there is no evidence that the offense is less than that charged. (People v. Breverman (1998) 19 Cal.4th 142, 154, 960 P.2d 1094.) "[A] trial court errs if it fails to instruct . . . on all theories of a lesser included offense which find substantial support in the evidence. On the other hand, the court is not obliged to instruct on theories that have no such evidentiary support." (Id. at p. 162.) "The existence of any evidence, no matter how weak will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is substantial enough to merit consideration by the jury. [Citations.] Substantial evidence in this context is "evidence from which a jury composed of reasonable [persons] could . . . conclude[]" that the lesser offense, but not the greater, was committed. (Ibid; accord, People v. Waidla (2000) 22 Cal.4th 690, 733, 996 P.2d 46.)
"An appellate court applies the independent or de novo standard of review to the failure by a trial court to instruct on an uncharged offense that was assertedly lesser than, and included[] in[,] a charged offense." (People v. Waidla, supra, 22 Cal.4th at p. 733.)
A. Failure to Instruct on Misdemeanor Battery
Count 001 charged defendant with corporal battery on a cohabitant (§ 273.5), a charge stemming from the incident in the park in which defendant scratched Pionas stomach with his knife. Defendant contends the court erred in refusing to instruct on the lesser included offense of misdemeanor battery ( § 243). The evidence did not support such an instruction.
"An offense is necessarily included in another if . . . the greater statutory offense cannot be committed without committing the lesser because all of the elements of the lesser offense are included in the elements of the greater." (People v. Hughes (2002) 27 Cal.4th 287, 365-366.)
Section 273.5, subdivision (a) provides, in relevant part: "Any person who willfully inflicts upon a person who is his or her . . . cohabitant . . . corporal injury resulting in a traumatic condition is guilty of a felony." Section 243, subdivision (e)(1) provides: "When a battery is committed against . . . a person with whom the defendant is cohabiting . . ., the battery is punishable by a fine not exceeding two thousand dollars ($ 2,000), or by imprisonment in a county jail for a period of not more than one year, or by both that fine and imprisonment."
Thus, battery against a cohabitant in violation of section 243, subdivision (e)(1) is a lesser included offense of willfully inflicting corporal injury on a cohabitant under section 273.5. (People v. Jackson (2000) 77 Cal.App.4th 574, 580.) Whether a battery is a felony under section 273.5 or a misdemeanor under section 243 depends on whether the battery resulted in a "traumatic condition." ( § 273.5, subd. (a).)
Defendant contends that a jury could have concluded that Piona did not sustain such an injury, and therefore the court erred in refusing to instruct on the lesser included misdemeanor. We do not agree.
Section 273.5, subdivision (c) defines "traumatic condition" as "a condition of the body, such as a wound or external or internal injury, whether of a minor or serious nature, caused by a physical force." (Italics added.)
As we noted in People v. Wilkins (1993) 14 Cal.App.4th 761, this statute "is violated when the defendant inflicts even minor injury. Unlike other felonies . . . which require serious or great bodily injury, the Legislature has clothed persons . . . in intimate relationships with greater protection by requiring less harm to be inflicted before the offense is committed." (Id . at p. 771; accord, People v. Silva (1994) 27 Cal.App.4th 1160, 1166; People v. Abrego (1993) 21 Cal.App.4th 133, 137-138.)
Defendant characterizes the injury he inflicted on Piona with his knife as a "superficial scratch." It may have been superficial but, as a minor wound, it also met the statutory definition of "traumatic condition." There was no evidence that the offense was less than that charged, and therefore there was no basis for instructing the jury on the lesser included offense of misdemeanor battery.
B. Failure to Instruct on Simple Assault
Defendant contends the court erred in failing to instruct sua sponte on simple assault as a lesser included offense to the three charges of assault with a deadly weapon or assault by means of force likely to cause great bodily injury ( § 245, subd. (a)(1)). Any error was harmless.
Defendant fails to recognize the factual basis for the three assault charges. Count 004 was based on defendants conduct during the altercation with Piona that occurred in the park in the morning. Counts 005 and 007 (erroneously referred to as count 006 by defendant) related to the afternoon events, and charged defendant with assault on Angel (count 005) and Piona (count 007).
There was no need to instruct the jury on the lesser offense of simple assault on count 004. When arguing with Piona at the park, defendant pulled out a knife and threatened to stab her if she did not stay and talk with him. Although Piona initially testified that defendant did not draw a knife on her in the park, she subsequently recanted that testimony and asserted that he did. There was no credible evidence from which the jury could have concluded that this assault, if it occurred at all, was anything other than an assault with a deadly weapon. There was therefore no obligation to instruct on simple assault. (People v. Breverman, supra, 19 Cal.4th at p. 162.)
Similarly, we question whether there was sufficient evidence to warrant an instruction on simple assault for the charges involving the afternoon events. Defendant contends the jury could have believed Pionas initial testimony that Angel might have been injured by bumping into a knife in her mothers purse, rather than by defendant. He does not discuss the nature of the assault on Piona, other than to note that the entire incident happened "very quickly."
Even if we assume for purposes of argument that the court should have instructed sua sponte on simple assault, the failure to do so was harmless. "Error in failing sua sponte to instruct . . . on all lesser included offenses and theories thereof which are supported by the evidence must be reviewed for prejudice exclusively under [People v.] Watson [(1956) 46 Cal.2d 818, 836]. A conviction of the charged offense may be reversed in consequence of this form of error only if, after an examination of the entire cause, including the evidence [citation], it appears reasonably probable the defendant would have obtained a more favorable outcome had the error not occurred [Citation]." (People v. Breverman, supra , 19 Cal.4th at p. 178.)
Defendant cannot meet this standard. The jurys verdicts demonstrate that it did not credit Pionas initial statements that defendant had not assaulted her with a knife in the park. Moreover, the jury found true all enhancements charging defendant with use of a knife. Given these determinations, it is not reasonably probable that the jury might have convicted defendant only of simple assault rather than the greater charged offenses. The courts error to instruct sua sponte on the lesser offense of simple assault, if error at all, was harmless.
V
Refusal to Strike Prior Convictions
Citing People v. Superior Court (Romero) 13 Cal.4th 497, 917 P.2d 628, defendant urged the trial court to strike his two prior convictions for lewd and lascivious conduct with a minor. He argued that these convictions occurred in 1988 and were remote. The current case did not involve any similar conduct. Defendant characterized the current case as involving "relatively minor criminal conduct," and noted that most of the charges could have been filed as misdemeanors. He asserted that these offenses arose under "unusual circumstances, not likely to recur," and he pointed out that he "has the ability to function in society as a productive, law abiding, and responsible individual." He argued that punishment under the three strikes law would be disproportionate to his conduct.
The prosecutor responded by describing defendant as a dangerous individual who had used a knife at different points over the same day. He argued that defendant had "failed to satisfactorily complete any lengthy period of time outside of prison."
The trial court denied defendants request to strike the priors. The court noted that defendant had numerous parole violations after his previous convictions and had not remained free from the criminal justice system. Defendant had not complied with the registration requirements "when he was required to do so, and when he had in some fashion managed to find himself in the situation where there were minor children living in a home where he had taken up residence." The court acknowledged defendants work history but then stated, "But I think what really does preponderate in the Courts mind . . . this is an individual who struck out in a violent way, through the course of a day, when he had the opportunity to both cool down and have ration [sic] and reason control; instead his violence grew during the course of this day. And his victims became more numerous. [P] And he became emboldened, even to strike out at these victims on a public street, in front of witnesses and in a fashion in which a minor child was stabbed."
The court concluded that these circumstances outweighed defendants good performance as an employee, and it denied defendants request to strike the priors.
Defendant contends the court abused its discretion in refusing to strike the priors. Assuming this claim is cognizable on appeal (cf., e.g., People v. Myers (1999) 69 Cal.App.4th 305, 308-310 [recognizing a defendants right to appeal] with People v. Benevides (1998) 64 Cal.App.4th 728, 733-735 [review available only under limited circumstances]), we conclude there was no abuse of discretion.
In determining whether to strike a prior serious felony conviction under the three strikes law, "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, 948 P.2d 429.)
Here, the trial court outlined defendants continuous dealings with the criminal justice system, his good employment record, and the violent nature of the charged offenses. In balancing these factors, the court concluded that defendant fell within the ambit of the three strikes law and refused to strike the prior convictions. The court carefully considered each of the requisite factors. The fact that the court weighed these factors differently than defendant might have wished does not establish an abuse of discretion. To the contrary, the courts explanation demonstrates that careful thought was given to defendants request.
In arguing otherwise, defendant cites People v. Cluff (2001) 87 Cal.App.4th 991, which concluded that the trial court abused its discretion in refusing to strike the priors of a defendant who had been convicted of violating the sex offender registration requirements in a technical, unintentional manner. (Id . at pp. 1001-1004.) Defendant is not in a comparable situation. Rather than simply violating registration requirements, defendant committed a host of other, violent offenses. Defendants failure to register was not unintentional or technical. He knew of his obligation to register but did not do so, a particularly egregious omission given that he was living in a house with minor children.
The trial courts refusal to strike defendants prior convictions was well within the bounds of reason. (See People v. Williams, supra, 17 Cal.4th at p. 162.) There was no abuse of discretion.
VI
Cruel and Unusual Punishment
Defendant contends the imposed sentence of 80 years to life violates constitutional proscriptions against cruel and unusual punishment. Defendants failure to raise this claim in the trial court constitutes waiver of the matter on appeal. (People v. Kelley (1997) 52 Cal.App.4th 568, 583; People v. DeJesus (1995) 38 Cal.App.4th 1, 27.)
However, even if we were to deem this contention properly before us, we would find it meritless. The United States Constitution prohibits cruel and unusual punishment by a standard distinct from California law, limited its analysis in noncapital cases to a "narrow proportionality principle," i.e., "it forbids only extreme sentences that are "grossly disproportionate" to the crime." (Ewing v. California (2003) ___ U.S. ___, ___, ___ [155 L. Ed. 2d 108, 117, 119, 123 S. Ct. 1179] (plur. opn. of OConnor, J.); id. at p. ___ (dis. opn. of Breyer, J. ).)
Defendants sentence is neither extreme nor grossly disproportionate in light of his criminal history, continuous parole violations, and the seriousness of the current offenses. (People v. Cartwright (1995) 39 Cal.App.4th at p. 1135; cf. Harmelin v. Michigan (1991) 501 U.S. 957 [115 L. Ed. 2d 836, 111 S. Ct. 2680] [mandatory life sentence without possibility of parole for possession of more than 650 grams of cocaine]; Rummel v. Estelle (1980) 445 U.S. 263 [63 L. Ed. 2d 382, 100 S. Ct. 1133] [life sentence for nonviolent recidivist convicted of obtaining $ 120.75 by false pretences].)
Similarly, a "punishment may violate the California Constitution . . . if it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity." (People v. Cartwright, supra, 39 Cal.App.4th 1123, 1136.) Again, considering defendants history and the seriousness of the present offenses, defendants lengthy sentence as a recidivist under the three strikes law cannot be said to shock the conscience.
DISPOSITION
The judgment is affirmed.
We concur: KOLKEY, J., and ROBIE, J.