Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 62073433
RAYE, Acting P. J.Defendant Daniel Phillip Ragan, a drug addict, was arrested three times in six weeks for possession of drugs and weapons charges consistent with his 20-year history with the criminal justice system. A jury convicted him of eight felony and five misdemeanor counts and two enhancements, and he admitted two prior strikes and two prior prison terms. The trial court committed him to state prison for 181 years.
Defendant does not believe that a drug addict, even with his résumé, should be subject to such a long term of imprisonment. Thus he mounts a vigorous evidentiary challenge to the admissibility of gun tattoos and a prior gun offense, and challenges the length of the sentence on multiple grounds. His evidentiary challenges fail because he cannot demonstrate an abuse of discretion in admitting the tattoos and prejudice as a result of the prior gun offense. His sentencing challenges fail because the trial court did not abuse its discretion, did not misunderstand its duty, and did not impose a sentence that is cruel and unusual under existing authority. We affirm.
FACTS
We report the facts in the light most favorable to the jury verdict. (People v. Miranda (1993) 17 Cal.App.4th 917, 922.) Sadly, one of the central characters is dead. Cameo James (Jodi), who by all accounts ran a drug house and was charged as a codefendant in this case, committed suicide after pleading guilty to the possession and sale of various drugs. Her teenage son, C.J., and various neighbors testified for the prosecution and presented compelling evidence that defendant either spearheaded the narcotics business or aided and abetted Jodi’s operation out of her house on Oakview Drive in Roseville. C.J. testified defendant lived with him and his mother for several months until a few days before a SWAT team descended on the house, confiscated drugs and weapons from throughout the house, and arrested his mother. He saw defendant with a.38-caliber handgun while defendant was living at the house.
Jodi’s mother testified that on one occasion while defendant was living with her daughter, she went to visit. Although she saw Jodi’s car parked in the driveway, defendant would not allow her in the house. When she persisted, defendant told her to “get the hell off of that porch, ” followed by a threat that if she did not leave, he had “a.38 that would make [her] leave.” She complied and did not report the incident to the police.
None of the neighbors got to know defendant after he began living at the house in their otherwise “nice” and “quiet” neighborhood. Some observed a marked increase in the number of visitors that went to the house at all hours of the night and day. Several testified they recognized defendant because of the number of tattoos he had all over his body. Although they testified that his appearance had changed substantially by the time of trial, when shown a picture taken at the time of his arrest, they identified defendant and reported that he had lived in the house for several months during 2007. There were varying accounts of when he appeared to have moved out.
As mentioned at the outset, defendant was charged with crimes arising on three different dates in August and September of 2007. The theme of his defense to most of the charges on each occasion was that the drugs and weapons were Jodi’s, not his. Based on the following evidence, the jury found otherwise.
At 2:30 a.m. on August 1, a Roseville police officer was responding to a residential burglar alarm on Oakview Drive when he noticed an older Ford Crown Victoria parked close by with its parking lights on. There did not appear to be anyone in the vehicle. Suspicious, the officer made a U-turn, and when he pulled up behind the car, defendant popped up. Held at gunpoint, defendant explained that he lived in the house with his girlfriend and one of them had set off the burglar alarm. Because defendant was fidgety, spoke rapidly, and was sweating profusely, the officer believed he was under the influence of a drug.
A second officer and his K-9 partner, Drago, searched the car. They found 2.19 grams of methamphetamine in two baggies; the first officer found two hypodermic needles. Defendant was arrested, and when booked he stated he resided at 1714 Oakview Drive in Roseville. He was released on bail.
On August 22, 2007, police officers from both Citrus Heights and Roseville executed a search warrant at Jodi’s house at 1714 Oakview Drive. They found both male and female clothing in the closet of the master bedroom, as if a couple was sharing the room together. Jodi was present during the search; defendant was not.
The police confiscated the following items from the master bedroom: usable quantities of methamphetamine, glass pipes, and empty Ziploc baggies; a Ziploc baggie containing methadone tablets in a dresser drawer; marijuana; a loaded.38-caliber revolver and a box of.38-caliber ammunition on top of a dresser inside a black bag with the words ‘Tattoo gun’ handwritten on the bag; unfired.357 Magnum revolver ammunition in an armoire drawer; a black mechanical gram scale with white crystalline residue on it in an armoire drawer; a black leather fanny pack on the bed containing a digital plastic gram scale; several hypodermic needles in an armoire drawer; two photographs of Jodi and defendant inside a wooden box on top of a dresser; and a videotape of defendant and Jodi. Based on this evidence, an expert in the sale of narcotics opined that methamphetamine was actively sold from Jodi’s house on Oakview Drive.
Five days later defendant was seen going through a back window at Jodi’s house. He was arrested. When booked, he provided “1714 Oakview, Roseville, California 95661” as his address and stated he was a “[t]attoo artist.” Again he was released on bail, only to be rearrested a couple of weeks later.
Following Jodi’s failure to appear on the August 22 charges, a warrant was issued for her arrest. On September 14, 2007, a police officer stopped a white Ford Mustang driven by defendant. Jodi was a passenger. As defendant, sporting brass knuckles on his belt, stepped out of the car as ordered, he dropped a baggie of marijuana. During the ensuing search, officers found syringes in his pockets. One of the officers on the scene noticed that defendant had tattoos of revolvers on his body.
The officers searched the car. They found methamphetamine, glass pipes, various pills (including hydrocodone), and syringes. One baggie of methamphetamine was found on the front passenger’s seat, and another was found in plain view on the “transmission hump” in the rear seating area. The pipes and hydrocodone were found inside a leopard-print purse on the floorboard of the vehicle, behind the front passenger’s seat. The syringes were found inside another purse with a skull and crossbones design on the outside.
Defendant and Jodi were arrested. During an interview, defendant stated he and Jodi had broken up during the week of August 22 but had gotten back together. Again defendant exhibited signs of recent drug use. He tested positive for methamphetamine, amphetamine, and a marijuana metabolite.
Defendant’s mother and two women who loved him testified that defendant had moved out of Jodi’s house sometime before the August 22 raid. His mother thought he had moved out around the beginning of August. One of the women, who herself had assaulted someone with a knife and beaten the person with her fist, stolen a car, and committed burglary and theft, testified she helped defendant move out around the Fourth of July. An ex-girlfriend, who lived with defendant’s mother and hoped to reunite with defendant, testified that defendant moved out of Jodi’s house and back into his mother’s about two weeks before Jodi’s house was searched.
A jury convicted defendant of an assortment of crimes occurring on August 1, August 22, and September 14, 2007. A summary follows.
August 1
Count one—possession of methamphetamine. (Health & Saf. Code, § 11377, subd. (a).)
Count two—possession of a hypodermic needle. (Bus. & Prof. Code, § 4140.)
August 22
Count three—lesser included offense of possession of a controlled substance. (Health & Saf. Code, § 11377, subd. (a).)
Count four—possession of methamphetamine and/or methadone while armed with a firearm. (Health & Saf. Code, § 11370.1, subd. (a).)
Count six—maintaining a place for selling or using a controlled substance. (Health & Saf. Code, § 11366.)
Count seven—possession of a firearm by a felon. (Pen. Code, § 12021, subd. (a)(1).)
Count eight—unlawful possession of ammunition. (Pen. Code, § 12316, subd. (b)(1).)
September 14
Count ten—transportation of methamphetamine. (Health & Saf. Code, § 11379, subd. (a).)
Count twelve—possession of a deadly weapon. (Pen. Code, § 12020, subd. (a)(1).)
Count thirteen—driving under the influence of alcohol and drugs. (Veh. Code, § 23152, subd. (a).)
Count fourteen—being under the influence of methamphetamine. (Health & Saf. Code, § 11150, subd. (a).)
Count sixteen—unauthorized possession of a hypodermic needle. (Bus. & Prof. Code, § 4140.)
Count seventeen—driving with a suspended or revoked driver’s license. (Veh. Code, § 14601.1, subd. (a).)
The jury also found two out-on-bail allegations were true. Defendant admitted two previous strikes and two prior prison terms.
DISCUSSION
I
Trial Issues
A. “Smoking Gun” Tattoos
Defendant is “inked... from head to toe.” He has tattoos of SS symbols, gang signs, Norse gods, skulls, and guns on his head, across his forehead, and down his torso and legs. The prosecution sought to introduce a series of photographs depicting the tattoos because defendant’s appearance had changed from the time of the commission of the charged offenses to the time of trial. The prosecutor sought to admit most of the photographs to prove identity because neighbors recognized defendant by his distinctive tattoos.
The trial court was measured and deliberate in its analysis of the tattoos. It accepted the defense position that admission of most of the tattoos would be more prejudicial than probative. If identity became problematic for the neighbor witnesses, the court suggested that a single booking photo might be used. But the court excluded most of the disturbing, gang-like tattoos.
The prosecution, however, offered what it characterized as the “smoking revolver-type handguns tattooed” on defendant. The prosecutor argued that a photo of two revolver tattoos on defendant’s torso had particular relevance to the possession of weapons charges because the tattoos demonstrated defendant’s knowledge of and fondness for revolver handguns. She offered to edit the photo of peripheral tattoos to assure that only the revolver tattoos were visible. The defense resisted.
The court granted the prosecution’s motion in limine to admit the edited photograph of the gun tattoos. The court explained, “[T]he fact that there are tattoos of similar-type firearms on the defendant’s body may be of probative evidence relating to the gun allegations that are pled in the information that’s on file, and it may be something that the People -- that the jury can make a reasonable inference on related to that charge, or they may reject that inference. [¶] But I do think, from the Court’s perspective, Exhibit 2-I should be admissible with the provision that the photograph be cropped or redacted so as to limit itself as closely as possible to showing the guns and not the other tattoos.”
We review the trial court’s admission of relevant evidence for an abuse of discretion. (People v. Cole (2004) 33 Cal.4th 1158, 1198.) Thus our review is both limited and deferential; a trial court’s ruling is characterized as abuse only if it is arbitrary and “exceeds the bounds of reason.” (People v. Giminez (1975) 14 Cal.3d 68, 72.)
Needless to say, the evidence must be relevant. (Evid. Code, §§ 210, 350.) Here the prosecution argued, and the trial court found, the tattoos of revolvers similar to the.38-caliber revolver found in defendant’s “tattoo gun” bag had a tendency in reason to prove the gun was his. The inference need not be strong. Here defendant’s affinity for guns as demonstrated by his desire to have them inscribed on his body had some probative value. “[T]he existence of a gun tattoo on someone’s body gives rise to the inference that that person may be familiar with and be around guns....” (People v. Kennedy (2005) 36 Cal.4th 595, 619, overruled on other grounds in People v. Williams (2010) 49 Cal.4th 405, 459.)
The court recognized that the inference was far from compelling. Indeed, the court acknowledged that the jury might choose to reject the inference. Nevertheless, the evidence had probative value and the prejudice was slight. The court carefully circumscribed the admissibility of the tattoo evidence proferred by the prosecution. The court allowed a single redacted photograph showing only the two guns resembling the handgun found in defendant’s “tattoo bag.” Moreover, this evidence was far less inflammatory than the testimony that defendant threatened Jodi’s mother with a.38-caliber gun and that C.J. observed him in the house handling a.38-caliber gun. (People v. Ewoldt (1994) 7 Cal.4th 380, 405.) And the introduction of the photograph would consume very little trial time. As a result, the revolver tattoos really were not “smoking guns, ” for they would have done little, if anything, to affect the jury’s deliberation.
In short, on this record we can find no abuse of discretion. While the probative value may have been limited, any possible prejudice from the admission of the revolver tattoos did not substantially outweigh the probative value. We reject defendant’s contention that the photograph was inflammatory, even incendiary. The court did not allow the prosecution to admit evidence of the tattoos that, by the time of trial, had been covered by defendant’s new hair style or the gang-related and other potentially offensive tattoos that covered his body. The single photo was relevant to the gun possession counts and properly admitted for this limited purpose. We reject defendant’s arguments to the contrary.
B. 1999 Felon in Possession of a Gun Conviction
Defendant appears to challenge the admissibility of his 1999 conviction for being a felon in possession of a gun, accuses his lawyer of incompetence for failing to stipulate to the fact he had suffered a prior felony, and complains the trial court improperly instructed the jury the conviction was evidence of identity, knowledge, and common plan under Evidence Code section 1101, subdivision (b). We agree with defendant that the “real issue” is prejudice.
“In determining whether an attorney’s conduct so affected the reliability of the trial as to undermine confidence that it ‘produced a just result’ (Strickland v. Washington [(1984)] 466 U.S. [668, ] 686) we consider whether ‘but for’ counsel’s purportedly deficient performance ‘there is a reasonable probability the result of the proceeding would have been different.’ [Citations.]” (People v. Sapp (2003) 31 Cal.4th 240, 263.)
Similarly, at the end of any protracted analysis of the admissibility of the evidence or the alleged instructional error, we come to the same ultimate question—is there a reasonable probability the jury would have come to a different result had the evidence of defendant’s prior possession of a gun, as a felon, not been admitted? Defendant does add an additional wrinkle we must acknowledge, but not necessarily resolve. He insists that the instructional error was of such magnitude it rendered the trial fundamentally unfair. Because in his view the instructional error constitutes a violation of due process, he contends we must employ the more rigorous standard of prejudice articulated in Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705].
Defendant, as the Attorney General points out, does not pinpoint any specific counts vulnerable to prejudice from the admission of the nature of the prior felony and the Evidence Code section 1101, subdivision (b) instructions. Defendant seems to suggest, therefore, that this evidence, exacerbated by the instructions, infected the verdicts on each and every count. Based on the overwhelming evidence of guilt as to all counts, we conclude the failure to stipulate to a prior felony and the instruction that the jury could use defendant’s prior possession conviction to infer identity, knowledge, or common plan, no matter how dubious, were harmless beyond a reasonable doubt. We highlight the evidence reported above to put the inconsequential role of the prior conviction in the same context.
We begin with the crimes committed on August 1 and September 14, none of which involved the possession of a gun. On August 1, defendant was found alone in his car outside Jodi’s house in possession of methamphetamine and hypodermic needles. We point out that the jury acquitted defendant of various counts. Thus, the evidence of his prior possession did not create such an overall bias against him that the jury convicted him of crimes unrelated to firearms. We agree with the Attorney General that the evidence that defendant possessed the methamphetamine and hypodermic needles as alleged in counts one and two is irrefutable.
There was at least an argument to be made that the drugs found in Jodi’s purses in the car on September 14 did not belong to defendant. Indeed, the jury acquitted defendant of the counts involving hydrocodone and drug paraphernalia, both of which were found in Jodi’s purses. But the evidence supporting the remaining counts was overwhelming, and in many instances irrefutable. For example, defendant had brass knuckles attached to his belt (count twelve) and syringes in his pockets (count sixteen), was under the influence of methamphetamine (count fourteen), and was driving with a suspended license (count seventeen). Moreover, the jury found him guilty of transporting methamphetamine based on the indisputable evidence defendant was the driver and the car he was driving contained at least two baggies of methamphetamine (count ten). We cannot accept the farfetched notion that any evidence or instructions having to do with the prior possession conviction bore any influence on the jurors as to each of the counts arising out of the events on September 14 in which no gun was involved.
The search on August 22, however, did involve the confiscation of a.38-caliber gun and ammunition in Jodi’s master bedroom, and this evidence supported defendant’s conviction of possession of methamphetamine and/or methadone while armed with a firearm (count four) and possession of a firearm by a felon (count seven). Thus, at least as to these two counts, there may have been some theoretical potential the jury could have been biased by the knowledge that in 1999 he had possessed a gun even though he was a felon. But the testimony of the witnesses in this case disabuses us of any hypothetical fear the jury might have been tainted by the evidence or the instructions regarding his prior possession conviction.
We begin with one of defendant’s own witnesses. A lady friend, who during the trial mouthed that she loved him, testified that defendant had left tattoo equipment in a bag labeled “Tattoo” at Jodi’s house. Indeed, defendant claimed to be a tattoo artist. The police confiscated a loaded.38-caliber revolver and a box of.38-caliber ammunition from such a bag, labeled “tattoo gun, ” in Jodi’s master bedroom during the August 22 raid.
Not only was there uncontroverted evidence that defendant, a tattoo artist, had a tattoo bag, but there was equally strong evidence he possessed a.38-caliber firearm. Jodi’s mother testified that defendant threatened to get his.38-caliber firearm if she did not leave their house. And C.J., Jodi’s son, testified that he saw defendant put a.38-caliber handgun into a bag labeled “Tattoo bag” or “Tattoo.” He had seen two firearms at his house only after defendant had moved in, the.38-caliber handgun and a.357 Magnum. There was no evidence offered that Jodi was a tattoo artist or, prior to her involvement with defendant, had ever owned or possessed firearms.
We conclude that in light of such compelling evidence that defendant possessed the.38-caliber handgun found in his tattoo bag, the evidence of an eight-year-old prior conviction would have been inconsequential to this jury. It is clear beyond a reasonable doubt that such evidence was not a factor in the jury’s verdict on the firearm-related counts. The evidence was too strong for the rusty conviction to have mattered.
The same is true for count six, maintaining a place for selling or using a controlled substance. This count, like those occurring on August 1 and September 14, does not involve a firearm, and we do not believe the prior firearm conviction would have had any bearing on the jury’s evaluation of the evidence whether defendant exerted sufficient possession and control of Jodi’s house on August 22 to be found guilty. When, and if, he had completely moved out of the residence was the primary issue at trial. And while the evidence was conflicting, we conclude the prior firearm possession conviction did not contribute to the jury’s resolution as to whether defendant had sufficient possession of the house on August 22 to support the conviction.
II
Sentencing Issues
A. Consecutive Sentences
The Attorney General does not contest defendant’s premise that the trial court had discretion to sentence him concurrently for those felony counts committed on the same occasion arising from the same operative facts. (Pen. Code, §§ 667, subd. (c)(6), 1170.12, subd. (a)(6); People v. Deloza (1998) 18 Cal.4th 585, 591.) The dispute is not about the law, but about the record. Defendant contends the trial court did not understand it had the discretion to sentence him concurrently, rather than consecutively, on many of the counts. Defendant urges us, therefore, to remand the case for resentencing.
The record does not tell a clear story. It is true, as defendant maintains, that the trial court did not disclose its reasons for imposing consecutive sentences. Defendant’s response to the void is to ask us to attribute the rationale set forth in the prosecutor’s sentencing memorandum and the probation officer’s report to the trial court. The prosecutor argued, “If there is a current conviction for more than one felony count not committed on the same occasion, and not arising from the same set of operative facts, the Court shall sentence the defendant consecutively on each count pursuant to this section, pursuant to Penal Code Section 1170.12(a)(6).” Similarly, the probation officer wrote: “As the defendant has admitted to two prior serious/violent convictions, consecutive sentence is mandated pursuant to Penal Code Section 1170.12(a)(6)....”
The Attorney General’s response to the void is to remind us of our duty to presume the trial court understood the full scope of its discretion and to presume it properly followed established law. (People v. Mosley (1997) 53 Cal.App.4th 489, 496; People v. Diaz (1992) 3 Cal.4th 495, 567.) Certainly defendant, as appellant, bears the burden of demonstrating error. He fails to meet that burden here.
We begin with the presumption the Attorney General urges on us, that is, that the trial court understood and applied the law. From that legal presumption, we examine the record closely for any clues that would rebut our presumption. The court began with an overview of the purpose and effect of the “three strikes” law. The court explained: “In sentencing here this morning, the Court notes that Penal Code section 1170.12(c) states the intent of the legislature with regard to three strike cases. That section, specifically subsection (c)(2)([A]) states that if the defendant has two or more prior felony convictions, in other words, strikes, the term for the current felony conviction shall be an in determinate [sic] term of life imprisonment with the minimum term of the indeterminate sentence calculated as being the greater of three times the term otherwise provided or 25 years or the term as determined by the Court under section 1170. [¶] Accordingly, the Court is required to sentence the defendant to 25 years to life for each felony count that doesn’t fall under Penal Code section 654. The Court will designate -- ”
Defense counsel interrupted to expressly remind the court of its discretionary power to sentence concurrently. The lawyer argued, “Your Honor, I do want to clarify that the Court -- the consecutive sentencing is discretionary under People v. Hendricks. You can sentence some of these counts concurrent if they’re based on the same operative facts or -- and arising out of the same occasion. It is not mandatory that you sentence him consecutive.”
The court responded, “Thank you. The Court was outlining the intent of the Three Strikes Law as stated in that section and the mandatory requirements that do apply.”
Defendant would have us assume the judge ignored this clear and straightforward admonition in the midst of the sentencing hearing and listened exclusively to what the prosecutor and probation officer had previously submitted in their written memoranda. This we will not do. Nor do we find the advice they provided as mischievous as defendant represents. While neither indicates the judge retains the discretion to sentence concurrently in certain circumstances, they both merely cite the principle that consecutive sentences are the general rule. Although their advice may not have been as clear as it might have been, we reject the notion that the court’s silence following defense counsel’s clear articulation of the rule reflects a misunderstanding of the scope of judicial discretion in this circumstance. As the Attorney General contends, we will presume the court understood the law and the record does not demonstrate otherwise.
B. Wobblers
Defendant makes the same naked allegation that the trial court was ignorant of its discretion; in this context, he claims the trial court did not realize that it could sentence wobblers (felonies that could have been charged as misdemeanors) as misdemeanors. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 974-975.) Again the Attorney General does not dispute the law, but he vigorously rejects the notion that we should infer ignorance from a silent record. We agree.
Defendant can point to nothing in the record to support his speculation the court did not understand the scope of its discretion. But he asks us to infer from other mistakes that the court did not understand criminal procedure. For example, he faults the court for failing to fully advise defendant of his Boykin/Tahl rights when defendant admitted his prior conviction. He would have us assume that if the court makes any mistake at trial, we can infer it is unfamiliar “with some of the more technical aspects of criminal procedure.” Not so.
Boykin v. Alabama (1969) 395 U.S. 238 [23 L.Ed.2d 274] (Boykin); In re Tahl (1969) 1 Cal.3d 122 (Tahl).
Analogies are not good enough. Defendant has not cited any statement by the trial court or any evidence demonstrating a lack of awareness of its discretion to sentence wobblers as misdemeanors. In the absence of such proof, we must presume the court understood its sentencing obligations and prerogatives and acted accordingly. Consequently, defendant has failed to bear his burden to demonstrate error.
C. Multiple Punishments Under Section 654
Relying on People v. Lopez (2004) 119 Cal.App.4th 132 (Lopez), defendant contends he should not have been punished for possession of a firearm and for possession of ammunition. He ignores the glaring factual distinctions between his case and Lopez. Section 654’s ban on multiple punishment for separate offenses arising out of a single occurrence incident to a single objective does not apply to possession of a firearm and two boxes of different kinds of ammunition.
In Lopez all of the ammunition was loaded into the firearm. Thus, the court found that “[t]o allow multiple punishment for possessing ammunition in a firearm would, in our judgment, parse the objectives too finely. While there may be instances when multiple punishment is lawful for possession of a firearm and ammunition, the instant case is not one of them. Where, as here, all of the ammunition is loaded into the firearm, an ‘indivisible course of conduct’ is present and section 654 precludes multiple punishment.” (Lopez, supra, 119 Cal.App.4th at p. 138.)
Here, like in Lopez, the police found a fully loaded.38-caliber revolver. But unlike Lopez, the police also found a box of.38-caliber bullets inside defendant’s “tattoo bag” and another box of.357 Magnum revolver ammunition. Thus, not only did defendant possess a fully loaded revolver, but he had an additional box of ammunition to allow him to fire multiple shots, reload, and fire multiple shots multiple times. He also displayed the additional objective of using a different firearm with the other box of bullets for a.357 Magnum.
Section 654 is designed to ascribe punishment commensurate with culpability. (People v. Latimer (1993) 5 Cal.4th 1203, 1211.) Here, defendant’s culpability was greater than the defendant’s in Lopez. He did not just possess the loaded.38-caliber revolver. Rather, he had at the ready a backup box of bullets for the.38 and an additional box for a.357. As a result, the trial court was not required to stay his sentence for unlawfully possessing ammunition. Rather, there is substantial evidence to support the court’s finding that defendant harbored a separate intent and objective. (People v. Blake (1998) 68 Cal.App.4th 509, 512.)
The Attorney General concedes, however, that defendant’s sentence for the possession of methamphetamine, the lesser included offense found by the jury as to count three, should be stayed. The trial court imposed consecutive terms for possession of methamphetamine and for the possession of methamphetamine while armed. Because section 654 prohibits multiple punishment for a single act or an indivisible course of conduct and the jury found that defendant possessed methamphetamine (counts three and four), but not methadone (count five), the court violated section 654 by punishing defendant twice for possession of the same methamphetamine arising from the same incident. The sentence for count three, therefore, must be stayed.
D. Preemption
In a more imaginative twist on a multiple punishment argument, defendant objects to his consecutive terms for possession of methamphetamine while armed with a firearm in count four under what he characterizes as general statutes when he was also sentenced under a more specific statute to a consecutive term for being a convicted felon in possession of a firearm in count seven. Defendant contends the Legislature intended to preempt the general possession crimes with specific punishment for a felon in possession of a firearm.
“The preemption doctrine provides that a prosecution under a general criminal statute with a greater punishment is prohibited if the Legislature enacted a specific statute covering the same conduct and intended that the specific statute would apply exclusively to the charged conduct. [Citations.] To determine the applicability of this doctrine in a particular case, the courts have developed two alternative tests. Under these tests, a prosecution under the general statute is prohibited if: (1) ‘each element of the general statute corresponds to an element on the face of the [specific] statute’; or (2) ‘it appears from the statutory context that a violation of the [specific] statute will necessarily or commonly result in a violation of the general statute.’ [Citations.]” (People v. Jones (2003) 108 Cal.App.4th 455, 463 (Jones).)
Defendant’s argument would only be attempted in a case, like this, where the defendant has been sentenced to multiple consecutive terms under the three strikes law because the statutory term of punishment for the so-called general crimes is three years and the term of punishment for the specific statute in question is four years. The Attorney General suggests there is some doubt whether the preemption doctrine applies at all since the term of punishment for the specific statute is greater than the term prescribed for the general statute. In any event, defendant fails to satisfy the tests articulated in Jones.
Quite simply, being a felon in possession of a firearm requires proof the defendant was a convicted felon, and neither of the more general crimes (possession of methamphetamine or possession of a controlled substance while armed) requires that status. The elements of the crimes, therefore, are not coextensive. Preemption does not apply.
E. Striking the Strikes
The trial court refused to strike either of defendant’s first two strikes following extensive briefing and argument before trial and during sentencing. Defendant pled no contest to beating an elderly man with a stick, knocking him down, and then hitting him with his fists. The victim sustained serious injuries, including a shattered shoulder bone socket and a broken collarbone. Defendant’s second strike was for voluntary manslaughter. He contends the trial court abused its discretion by refusing to strike at least one of the two strikes. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529-530 (Romero).)
Defendant recognizes the trial court is vested with broad discretion in deciding whether he falls within the spirit of three strikes sentencing. But he contends, “The people of the [sic] California have little interest in supporting a non-serious and non-violent offender, even a repeat offender, as a public charge past the point where he is likely to offend again.” And he cites as support the annual cost of imprisonment for a single inmate, yet in the next breath he points out that cost is not a factor a court can consider in exercising its discretion to strike a prior conviction. (See Romero, supra, 13 Cal.4th at p. 531.)
The trial court’s obligation in deciding whether to strike a prior conviction is to “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.)
Cost, quite certainly, is not a factor to be considered. Shame on defendant for sneaking in an annual cost figure in a footnote, knowing full well it could not be considered. And defendant’s self-characterization cannot survive even a superficial scrutiny. His background is neither nonserious nor nonviolent. Both of his prior strike offenses are particularly disturbing: in the first he beat and seriously injured an elderly man, and in the second he shot and killed an African-American man during a racially motivated altercation.
Moreover, the Attorney General provides a nice synopsis of defendant’s background, a background “littered with other criminal offenses and parole violations.” In 1987 he was in possession of a concealed firearm and stolen property. In 1989 he was sentenced to nine years in prison for voluntary manslaughter by use of a firearm and assault with a deadly weapon. In 1994 and 1997 he violated parole. In 1999 he was convicted of possession of a firearm by a felon and attempted auto theft. Again he was sentenced to prison, this time for four years two months. Between July 2002 and January 2007, he committed six parole violations.
Yet defendant accuses the trial court of focusing on his recidivist status without careful consideration of his history and personal circumstances. He insists his only problem is his drug addiction, as if addiction were a mitigating factor. (See Cal. Rules of Court, rule 4.423.) More importantly, perhaps, he contends the trial court abused its discretion by failing to strike at least one of his violent strikes since he committed those offenses when he was a juvenile. He minimizes his criminal history because most of the offenses were drug-related.
We, of course, are not at liberty to debate the wisdom of the policies advanced by the three strikes law. Our task is narrowly defined. Having studied the record of defendant’s individual history, character, and prospects for the future, we cannot say the trial court abused its discretion by refusing to strike either or both of his prior strikes. While it is true that the most violent offenses occurred when defendant was young, and presumably more immature, he has failed to demonstrate he no longer poses a threat to society. He has demonstrated an inability to follow the law and to stay out of prison.
While he may be a drug addict, possession of illegal drugs is not his sole indiscretion. He refuses to give up his affinity for guns. Nor do his future prospects look promising. By his own admission, he is an active member of Sacramento street gangs. Moreover, he was arrested and released on bail twice in the month before his final arrest. In short, there is ample evidence to support the trial court’s conclusion that defendant is not the type of individual that should be excluded from the harsh consequences the three strikes law was designed to exact. To the contrary, there is evidence to support the court’s conclusion that he fits the profile and falls within the spirit of the law. We have found no abuse of discretion in the record before us.
F. Cruel and Unusual Punishment
Defendant contends that imposition of a 181-year term of imprisonment on a drug addict constitutes cruel and unusual punishment under the state and federal Constitutions. Application of binding authority compels us to reject defendant’s legal argument; examination of the record, as demonstrated above, compels us to reject his factual predicates.
Defendant and the Attorney General cite the same governing legal principles. “A sentence may violate the state constitutional ban on cruel and unusual punishment (Cal. Const., art. I, § 17) 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.”’ [Citation.]” (People v. Thongvilay (1998) 62 Cal.App.4th 71, 87-88.) In In re Lynch (1972) 8 Cal.3d 410, 425-427, the California Supreme Court prescribed three different techniques for evaluating the merits of a cruel and unusual challenge to a sentence. Here both parties focus on the first technique utilized in Lynch—an examination of the “nature of the offense and/or the offender, with particular regard to the degree of danger both present to society.” (Id. at p. 425.)
Applying this technique, defendant urges us to consider the facts of the crime and the totality of the circumstances, including his motive, the extent of his involvement, and the consequences of his acts, in determining whether the punishment is “grossly disproportionate to the defendant’s individual culpability as shown by such factors as his age, prior criminality, personal characteristics, and state of mind.” (People v. Dillon (1983) 34 Cal.3d 441, 479.) Factually, defendant sanitizes his background, painting his violent strikes as youthful indiscretions, his current convictions as addiction-related, and his prospects for the future as promising. The record reveals a much darker profile.
It is true that defendant committed his most violent offenses when he was much younger. But the circumstances of those crimes are disturbing. He admitted beating an elderly man and shooting an African-American, significant because he continues to belong to white supremacist gangs. And his crimes do not consist of mere drug possession. Rather, he remains armed, and as his threat to Jodi’s mother demonstrates, he appears ready to use his guns to intimidate, if not terrorize and shoot, other members of society. Moreover, he has consistently violated his parole and served multiple prison terms.
Thus, he is not the benign drug abuser he would have us believe. In general, the California Supreme Court has held the three strikes law is not so disproportionate that it violates the prohibition against cruel and unusual punishment. (People v. Cluff (2001) 87 Cal.App.4th 991, 997.) Defendant bears a considerable burden to prove the application of the three strikes sentencing scheme is unconstitutional. (People v. Ruiz (1996) 44 Cal.App.4th 1653, 1662.) Given the circumstances surrounding his first two strikes, his ongoing involvement with guns and gangs, and his inability to conform his conduct to the social norms prescribed by California’s criminal law, we conclude defendant failed to sustain his burden of proof. The sentence neither shocks the conscience nor offends fundamental notions of human dignity.
Nor does he sustain his burden of demonstrating the sentence is cruel and unusual under the federal Constitution. If a recidivist in Texas can be sentenced to a life term for fraudulently charging $80 on his credit card, writing a forged check for $28.36, and stealing $120.75 under false pretenses (Rummel v. Estelle (1980) 445 U.S. 263 [63 L.Ed.2d 382]), a recidivist in California can be sentenced to 25 years to life for stealing three golf clubs following convictions for various other theft crimes as well as possession of drug paraphernalia and the unlawful possession of a firearm (Ewing v. California (2003) 538 U.S. 11, 17-20 [155 L.Ed.2d 108]), and another California recidivist who had been convicted of three burglaries, two petty thefts, two drug offenses, and escape can be sentenced to 50 years to life for stealing videocassettes worth less than $200 (Lockyer v. Andrade (2003) 538 U.S. 63 [155 L.Ed.2d 144]), then we find no federal constitutional impediment to defendant’s 181-year sentence for 13 counts of drug and weapons possession, all but two of which were committed while defendant was out on bail. Not only does defendant have a 20-year history of involvement with the criminal justice system, but that history began with terribly violent crimes and he continued to remain armed.
We would not equate defendant’s circumstances to those reported by the Ninth Circuit Court of Appeals, even if we were willing to follow nonbinding authority. The triggering crimes in Ramirez v. Castro (9th Cir. 2004) 365 F.3d 755 and Gonzalez v. Duncan (9th Cir. 2008) 551 F.3d 875 were petty theft and failure to timely update an annual sex offender registration, respectively. While Gonzalez had a long criminal history, the court found his current offense was “‘an entirely passive, harmless, and technical violation of the registration law.’ [Citation.]” (Gonzalez, at pp. 885-886.) Ramirez’s criminal history included two robbery convictions that the court found were nothing more than petty theft. His total sentence had been one year in county jail and three years on probation. (Ramirez, at pp. 757-758, 768.) There was nothing passive or technical about defendant’s commission of 13 counts of drug and gun offenses, and he certainly has a record far more distinguished than his counterpart in Ramirez. The Ninth Circuit cases do not assist him.
DISPOSITION
The sentence for count three, possession of methamphetamine, is stayed. The trial court is directed to amend the abstract of judgment accordingly and to send a certified copy thereof to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: BUTZ, J., CANTIL-SAKAUYE, J.