Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County. J. Michael Beecher, Judge. (Retired judge of the Orange S.Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Super.Ct.No. RIF136706.
Robert F. Somers, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Steve Oetting and Robin Derman, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI J.
On May 8, 2007, defendant Hugo Rodriguez, a convicted felon, and Andres Maciel were stopped by a Riverside County sheriff’s deputy in a truck driven by defendant. A firearm with a loaded magazine was found secreted in the dashboard behind the ashtray.
Maciel pled guilty to possession of the firearm prior to defendant’s trial.
Defendant was found guilty of being a felon in possession of a firearm, having suffered one prior serious or violent felony offense, and having served a prior prison term for that offense.
Defendant now contends:
1. Insufficient evidence was presented to support his conviction of being a felon in possession of a firearm.
2. Instruction to the jury with Judicial Council of California Criminal Jury Instructions (CALCRIM) Nos. 223, 226, and 302 lessened the People’s burden of proof.
3. Prosecutorial misconduct warrants reversal of defendant’s conviction.
4. The trial court erred by denying his Romero motion.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
We find no prejudicial error and affirm the judgment.
I
PROCEDURAL BACKGROUND
A jury found defendant guilty of possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1)). At a bifurcated court trial, defendant was found to have suffered a prior serious or violent felony conviction (§§ 667, subds. (c) & (e), 1170, subd. (c)(1)) and having served a prior prison term for the prior offense (§ 667.5, subd. (b)). The trial court sentenced defendant to the second-strike sentence of five years in state prison.
All further statutory references are to the Penal Code unless otherwise specified.
After waiving his right to counsel, defendant was granted propria persona status for sentencing.
II
FACTUAL BACKGROUND
On May 8, 2007, about 7:00 p.m., Riverside County Sheriff’s Deputy Amado Layos stopped near a truck parked near an apartment complex in Moreno Valley. Defendant was standing by the driver’s side door of the truck, and Maciel was sitting in the passenger’s seat. Defendant leaned into the truck. It appeared defendant was reaching across the front seat of the truck “moving stuff around.” Both defendant and Maciel were ordered out of the vehicle. Maciel immediately complied by opening the passenger’s side door and lying on the ground. Defendant initially did not comply. After a few seconds, defendant exited the vehicle and lay down on the ground.
An anonymous tip had been received that defendant and Maciel were in possession of a gun, but evidence of the anonymous tip was excluded prior to trial. A stipulation was read to the jury that the detention and subsequent search were valid.
Deputy Layos searched the vehicle. The glove compartment had been altered. When Deputy Layos popped out the glove compartment, he found a .38-caliber pistol secreted behind the ashtray. The magazine was loaded. The gun would have been accessible to both defendant and Maciel. Deputy Layos also located the owner’s manual for the truck, which was located in the glove compartment. Inside the manual were personal items belonging to defendant. Deputy Layos did not recall if the registration showed the truck belonged to defendant. No fingerprints were found on the gun, and neither defendant nor Maciel was a registered owner of the gun.
The parties stipulated that defendant had previously been prohibited from possessing a firearm.
Maciel testified that he owned the gun found in the truck and that defendant never saw the gun that night. Maciel kept the gun in his back pocket in baggy pants so he did not think that defendant saw it. Maciel claimed that defendant had been working on something in the back of the truck when Deputy Layos pulled up, and Maciel pulled out the stereo of the truck and hid the gun behind it without defendant’s knowledge.
Maciel testified that he told police at the station that night the gun belonged to him. Maciel maintained he said nothing about the gun to anyone at the scene. Maciel left a pipe and methamphetamine on the dashboard of the truck; he did not stash it with the gun.
Deputy Layos testified that Maciel told him at the scene that defendant was known to carry a gun. Also, someone in the neighborhood had seen defendant carrying a gun that day. Maciel told him that defendant quickly put the gun away when Deputy Layos drove up. Maciel never claimed at the scene when he was arrested that the gun belonged to him. The gun was found behind the ashtray, which was below the stereo. It did not appear that the stereo had been removed.
Defendant presented no evidence on his behalf.
III
INSUFFICENT EVIDENCE OF POSSESION OF A FIREARM BY FELON
Defendant contends the evidence that he possessed the firearm found in the truck was insufficient to support his conviction of being a felon in possession of a firearm.
A. Standard of Review
“We often address claims of insufficient evidence, and the standard of review is settled. ‘A reviewing court faced with such a claim determines “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” [Citations.] We examine the record to determine “whether it shows evidence that is reasonable, credible and of solid value from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.” [Citation.] Further, “the appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.”’ [Citation.]” (People v. Moon (2005) 37 Cal.4th 1, 22.)
B. Analysis
The elements of a violation of section 12021 are: (1) conviction of a felony and (2) ownership, possession, custody, or control of a firearm. (People v. Jeffers (1996) 41 Cal.App.4th 917, 922.) “Possession may be actual or constructive. Actual possession means the object is in the defendant’s immediate possession or control. A defendant has actual possession when he himself has the weapon. Constructive possession means the object is not in the defendant’s physical possession, but the defendant knowingly exercises control or the right to control the object. [Citation.]” (In re Daniel G. (2004) 120 Cal.App.4th 824, 831.) Constructive possession occurs when contraband is found in a place to which the defendant and others have access and over which none has exclusive control. (People v. Hutchinson (1969) 71 Cal.2d 342, 345.)
Sufficient circumstantial evidence exists here that the jury could find that defendant possessed the .38-caliber gun found secreted behind the ashtray in the truck he was driving. Although it was not established that defendant owned the truck, it was clear he had permission to drive it. Further, his use of the truck was more than momentary, as defendant had put personal items in the pocket of the owner’s manual found inside the glove compartment. According to Deputy Layos, the glove compartment had been altered in order to accommodate the gun hidden behind the ashtray, and defendant would have been aware that it had been altered since he placed his personal items in the glove compartment.
Further, defendant was seen leaning in the truck “moving stuff around” when Deputy Layos approached the vehicle. A reasonable inference was that defendant was hiding the gun. Further, when defendant was first ordered to get out of the truck and to lie on the ground, he hesitated. Defendant was a convicted felon and conceivably was well aware of the consequences of Deputy Layos finding the secreted gun. His actions in delaying complying with Deputy Layos’s orders could reasonably be interpreted by the jury to show his consciousness of guilt of possessing the firearm.
Additionally, Maciel’s testimony that the gun belonged to him was simply unbelievable. Maciel initially got on the stand and asserted the Fifth Amendment privilege not to testify despite the fact he had already pleaded guilty to the charge in another proceeding. He refused to answer any questions. Maciel then admitted that he was riding in defendant’s car. Maciel claimed to possess the gun found in the truck and that defendant never saw it. Maciel denied that he talked to anyone at the scene when he was arrested. Although Maciel claimed that he hid the gun behind the stereo (which he pulled out in a hurry and which defendant did not observe), the gun was found behind the ashtray. Further, although Maciel admitted that he possessed the drugs and paraphernalia found on the dashboard in plain view, he said he hid the gun so he would not go to prison. Maciel’s hiding of the gun but not the drugs and pipe simply could not reasonably be believed by the jury.
Maciel’s testimony was so unbelievable that the prosecutor advised the jurors during argument that even though they would be instructed that they could conclude that defendant possessed the gun through Maciel’s possession, that scenario simply was not true, and defendant placed the gun in its hiding place.
Defendant clearly was in control of the truck and knew the glove compartment had been altered to accommodate the gun. He was seen leaning in the truck while Deputy Layos approached, moving things around. Defendant did not initially comply with Deputy Layos’s demand to exit the truck. Based on the foregoing, we find sufficient evidence was presented to support the jury’s finding that defendant possessed the gun found in the truck.
IV
INSTRUCTION WITH CALCRIM NOS. 223, 226, AND 302
Defendant contends the trial court erroneously instructed the jury with CALCRIM Nos. 223 (direct and circumstantial evidence), 226 (witnesses), and 302 (evaluating witness testimony) in violation of his federal constitutional rights to due process by lessening the People’s burden of proof.
Initially, the People argue that defendant has waived his claims regarding the instructions by failing to object to the instructions or seek modification of them in the lower court. We choose to review defendant’s constitutional challenges despite the lack of objection.
Two fairly recent decisions, People v. Ibarra (2007) 156 Cal.App.4th 1174 and People v. Anderson (2007) 152 Cal.App.4th 919 (Anderson), each addressed constitutional challenges to CALCRIM Nos. 223, 226, and 302, but defendant contends that these cases did not address the same issues he now raises on appeal. As it appears defendant’s claims are somewhat different from the challenges resolved in Ibarra and Anderson, we cannot simply rely on these cases.
A. CALCRIM No. 223
CALCRIM No. 223 defines direct and circumstantial evidence. The portion of CALCRIM No. 223 that defendant challenges was read by the trial court as follows: “Both direct and circumstantial evidence are acceptable in court as types of evidence to prove or disprove the elements of a charge, including intent and mental state and acts necessary to [sic] a conviction. And neither one is necessarily more reliable than the other. Also neither direct nor circumstantial evidence is necessarily entitled to any greater weight than the other. [¶] You must decide whether a fact in issue has been proven based on all the evidence, whether direct or circumstantial. But before you may rely on circumstantial evidence to conclude a fact necessary to find the defendant guilty, before you can find that that has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt.” (Italics added.) Defendant claims that the italicized language advised the jury that it was his burden to “disprove” an element of the offense rather than requiring the People to prove all the elements beyond a reasonable doubt.
In a criminal case, the People must establish the defendant’s guilt beyond a reasonable doubt, and the failure to do so, as opposed to an affirmative finding of innocence, is the standard for acquittal. (Anderson, supra, 152 Cal.App.4th at p. 932 [“[f]or a defendant to be found not guilty, it is not necessary that the evidence as a whole prove his innocence, only that the evidence as a whole fails to prove his guilt beyond a reasonable doubt”].) When assessing on appeal if a jury instruction is erroneous, we ask whether there is a reasonable likelihood the jury has applied the challenged instruction in a way that violates the Constitution. (People v. Richardson (2008) 43 Cal.4th 959, 1028; People v. Harrison (2005) 35 Cal.4th 208, 252.) “‘In conducting this inquiry, we are mindful that “‘a single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge.’” [Citations.]’ [Citation.] ‘Additionally, we must assume that jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given.’ [Citation.]” (Richardson, at p. 1028.)
We simply do not believe, based on the language of CALCRIM No. 223, that the jury would have applied it in a way that violates the Constitution. CALCRIM No. 223 instructs on the types of evidence that can prove a fact in the case. It does not go to the burden of either party to present evidence. The instruction also informs the jurors that they must find that the People proved defendant’s guilt beyond a reasonable doubt, not that defendant had the burden to disprove some fact.
In addition, the jury was also instructed with CALCRIM No. 220, the burden of proof instruction, which made it clear that the jurors must find that the People proved defendant’s guilt beyond a reasonable doubt. In assessing the jury instructions as a whole, we do not believe the jury interpreted CALCRIM No. 223 as defendant claims and that it somehow lessened the People’s burden of proof.
The jury was instructed in part, “In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must then find him not guilty.”
B. CALCRIM No. 302
As given by the trial court here, CALCRIM No. 302 read, “If you determine there is a conflict in the evidence, you must decide what evidence, if any, you’re going to believe. Don’t simply count the number of witnesses who agree or disagree on a point and accept the testimony of the greater number of witnesses. [¶] . . . [O]n the other hand, don’t disregard the testimony of the greater number of witnesses or any particular witness without a reason or because of prejudice or a desire to favor one side or the other. . . . [W]hat it is important is whether the testimony or any other evidence convinces you, not just the number of witnesses who testify about a certain point.” (Italics added.)
Defendant objects to the italicized language, claiming that the instruction does not distinguish between inculpatory and exculpatory evidence, requiring defendant to point to exculpatory evidence that the jury must believe in order to obtain an acquittal. Defendant’s argument is merely a rewording of an argument specifically rejected in Anderson. There, the defendant argued the instruction implies that the jury must choose between the People’s witnesses and those of the defense. (Anderson, supra, 152 Cal.App.4th at p. 940.) As stated in Anderson, the instruction merely advises the jury not to determine credibility of witnesses by totaling up the number witnesses who agree or disagree on a point. (Ibid.) The instruction says nothing about requiring believable exculpatory evidence in order for defendant to obtain an acquittal.
Defendant fails to explain how the instruction requires the presentation of believable exculpatory evidence in order to obtain an acquittal. The jury was fully instructed on the burden of proof, and nothing in CALCRIM No. 302 lessened that burden. We reject defendant’s challenge to CALCRIM No. 302.
C. CALCRIM No. 226
CALCRIM No. 226 provides guidance for assessing witness credibility. As given by the trial court here, it read in pertinent part, “You alone must judge the credibility or believability of each of the witnesses. In deciding whether testimony is true and accurate, you should use your common sense and experience. The testimony of each witness must be judged by the same standard. You must set aside any bias or prejudice you may have, including any based on the witness’s race, gender, religion or national origin. [¶] You may believe all, part, or none of the witness’s testimony. Consider the testimony of each witness and decide how much of it you choose to believe. In evaluating a witness’s testimony, you may consider anything that, in your mind, reasonably tends to prove or disprove the truth or the accuracy of that testimony.” (Italics added.) The court went on to list the factors the jury could consider in determining the credibility of the witnesses.
As he contended with regard to CALCRIM No. 302, defendant contends the italicized language was erroneous because it required the jury to find that any exculpatory evidence must be proved beyond a reasonable doubt before they could find him not guilty.
Again, we do not believe that the jury would interpret the instruction as stated by defendant. The instruction merely advised the jurors how to assess witness credibility. In addition, as set forth ante, they were fully instructed on the burden of proof. They were also instructed that neither party must call all witnesses or produce all physical evidence. These instructions clearly advised the jury that they could not convict appellant unless the People proved his guilt beyond a reasonable doubt.
Even if we were to assume the instructions were interpreted as defendant claims in violation of his due process rights, such error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 26 [87 S.Ct. 824, 17 L.Ed.2d 705].) Even if the jury concluded that defendant had to disprove his guilt or present exculpatory evidence that they had to find beyond a reasonable doubt in order to acquit him, they were also instructed the People had the burden of proving his guilt beyond a reasonable doubt. The problem in this case is that the only evidence in defendant’s favor was Maciel’s testimony, which no reasonable juror could conclude was believable, under any standard. Moreover, as set forth ante, the evidence of defendant’s guilt was overwhelming; therefore, any instructional error was harmless.
V
PROSECUTORIAL MISCONDUCT
Defendant claims that the prosecutor committed misconduct by questioning Maciel regarding a female who may have seen defendant holding the gun found in the truck just prior to their being apprehended. Defendant insists this evidence, which he claims was derived from statements made by an anonymous informant who contacted police and prompted the detention of defendant and Maciel, had been excluded prior to trial and violated his right of confrontation under Crawford v. Washington (2004) 541 U.S. 36 [124 S.Ct. 1354, 158 L.Ed.2d 177] (Crawford).
A. Additional Factual Background
The police were contacted by an anonymous female caller that there were two male suspects in a truck who had a gun, which was the reason defendant and Maciel were detained. Prior to trial, defendant brought an oral motion to exclude any “mention of the anonymous phone call under hearsay, Crawford, and 6th Amendment confrontation.” The People countered that the jury might be concerned that Deputy Layos stopped defendant and Maciel to harass them and without any cause. The People were not offering the anonymous tip for its truth, but rather to explain why Deputy Layos stopped defendant and Maciel. The trial court excluded the anonymous call. The parties prepared a stipulation that was read to the jury prior to Deputy Layos’s testimony, which informed them that the deputy’s reasons for stopping and detaining defendant and Maciel had been excluded by the court, and that Deputy Layos had probable cause to detain and search defendant and his vehicle.
During cross-examination of Maciel, the following exchange occurred:
“[PROSECUTOR] . . . [¶] Isn’t it true that a female standing across the street saw the gun?
[MACIEL]: I don’t know if she saw it or not.
[PROSECUTOR]: You know what I’m talking about; right?
[MACIEL]: I don’t know.
[PROSECUTOR]: You don’t remember a female across the street?
[MACIEL]: I didn’t see nobody.”
Defendant’s objection on relevance grounds was overruled. The prosecutor continued as follows:
“[PROSECUTOR]: Were you too high too remember? Or you just don’t remember?
[MACIEL]: I didn’t see nobody out there, but if she seen a gun on me, oh, well.
[PROSECUTOR]: Let me ask you something. Is it possible she saw a gun on you?
[MACIEL]: I don’t know who saw what or they did see it or they didn’t. But I know I had a gun in my possession. And when the cop got there, I put it behind the stereo.
[PROSECUTOR]: Earlier you said that [defendant] definitely didn’t see you with the gun?
[MACIEL]: He never seen me with that gun.
[PROSECUTOR]: But you don’t know if anybody else could have?
[MACIEL]: I never seen nobody else out there that seen me.
[PROSECUTOR]: You had the gun out?
[MACIEL]: I don’t even remember if I did or not. I could.
[PROSECUTOR]: Could have been threatening somebody with it?
[MACIEL]: I didn’t threaten nobody. Like I said, I just carry one to protect myself.”
The prosecutor asked Maciel later, “You told deputies that you were parked at that address. That a female from across the street saw the defendant with that gun.” Maciel responded, “I never seen a female, and I never told this deputy nothing about it. He’s the one that told me that there was a female that seen me waving a gun.” Deputy Layos later testified that Maciel had told him that someone in the neighborhood had seen defendant with a gun that day.
Once the People and defendant rested, defendant brought a motion for mistrial on the basis that the prosecutor had elicited testimony regarding the anonymous female caller, which had been excluded by the trial court. The trial court did not believe the anonymous female caller was discussed. The prosecutor responded that it had generally asked if Maciel or defendant had been seen with a gun by a female.
The trial court ruled, “You know, I don’t think, as it came out, I don’t think it was a problem. The jury could speculate that maybe that . . . the woman informed police or something, but there’s -- but we don’t have that link. We don’t have the phone call or anything, and I don’t -- we weren’t asked to instruct Maciel to not mention a woman. I mean that was going -- presumably he actually saw the woman. It was not a phone call, but he saw somebody.”
B. Analysis
A prosecutor’s misconduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. (People v. Hill (1998) 17 Cal.4th 800, 819.) Misconduct by a prosecutor that does not render a criminal trial fundamentally unfair is error under state law if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury. (People v. Morales (2001) 25 Cal.4th 34, 44.)
In order for a reviewing court to review a claim of prosecutorial misconduct, a defendant must make an objection and request for admonishment at trial. (People v. Gionis (1995) 9 Cal.4th 1196, 1215.) Such objection must be timely made at trial and a request for an admonition must be required; otherwise, the point is reviewable only if an admonition would not have cured the harm caused by the misconduct. (People v. Bradford (1997) 15 Cal.4th 1229, 1333; People v. Barnett (1998) 17 Cal.4th 1044, 1133.) It is presumed that a jury will follow the court’s instructions, including an admonition to disregard improper comments. (People v. Mickey (1991) 54 Cal.3d 612, 689, fn. 17.)
We believe that defendant has waived his claim. At the time that the prosecutor first questioned Maciel regarding a female observing defendant with a gun that night, defendant remained silent. Although he later made a relevance objection, he never alerted the trial court that he felt that the prosecutor was admitting evidence that had already been excluded or that it constituted inadmissible hearsay and never asked that the trial court admonish the jury to disregard the testimony. A belated motion for mistrial made by defendant after both sides had rested cannot preserve such error when an admonition to the jury would have cured any potential error. (People v. Prieto (2003) 30 Cal.4th 226, 259 [claim waived even though defendant brought a motion for mistrial for prosecutorial misconduct because never requested admonition].) Had defendant asked here, the trial court could have instructed the jury that Maciel’s statements were not being sought to prove the truth of the matter asserted, but rather to impeach his credibility or were only being admitted to show what Maciel had observed that night, or it could have stricken the questions and answers. Such failure to request an admonition to the jury waives the claim on appeal.
Even if we were to review defendant’s claim, it lacks merit. Defendant’s claim is based on his belief that the prosecutor’s questions and Maciel’s testimony regarding a female witnessing defendant with a gun that night were derived from the anonymous phone call to the police -- an out-of-court statement made by a declarant not available for cross-examination. In Crawford, the United States Supreme Court held that the confrontation clause renders testimonial out-of-court statements offered against a criminal defendant inadmissible unless the witness is unavailable at trial and the defendant has a prior opportunity for cross-examination. (Crawford, supra, 541 U.S. at pp. 53-54, 59.) For confrontation clause purposes, the crucial determination is whether the out-of-court statement is testimonial or nontestimonial. (People v. Geier (2007) 41 Cal.4th 555, 598.)
“It is, of course, misconduct for a prosecutor to ‘intentionally elicit inadmissible testimony.’” (People v. Bonin (1988) 46 Cal.3d 659, 689, overruled on another point in People v. Hill, supra, 17 Cal.4th at p. 823, fn. 1; see also People v. Bell (1989) 49 Cal.3d 502, 532 [“deliberate attempt to put inadmissible and prejudicial evidence before the jury” was misconduct].) This would, of course, include testimony that violates Crawford.
Here, the prosecutor did not seek to elicit the testimony of the female who made the anonymous phone call to police. At no time was there mention of a call made to police or statements made outside of court. The prosecutor’s questions went to what Maciel observed that evening. Clearly, the prosecutor could ask Maciel what he saw before and after he and defendant were stopped.
Moreover, after reviewing the entire record, it appears that the prosecutor also sought to admit a statement made by Maciel himself to Deputy Layos at the scene that night regarding a female who had witnessed defendant with a gun. Maciel had denied that he made any statements to Deputy Layos at the scene. Hence, any statements that Maciel made to Deputy Layos that night would be inconsistent with his trial testimony that he said nothing to Deputy Layos at the scene. (Evid. Code, § 1235 [“[e]vidence of a statement made by a witness is not made inadmissible by the hearsay rule if the statement is inconsistent with his testimony at the hearing”].)
Based on the questioning of Maciel, it is clear that the prosecutor had a good faith belief that Maciel had told Deputy Layos that night that a female had seen defendant with the gun. Although Deputy Layos later stated that Maciel had told him that someone in the neighborhood had seen defendant with a gun that day, it is clear the prosecutor believed Maciel had made a statement regarding a female observing defendant with a gun. Since such statement would be admissible, we cannot say that the prosecutor intentionally sought to admit inadmissible evidence. (People v. Bonin, supra, 46 Cal.3d at p. 689.) Such attempt to elicit Maciel’s prior inconsistent statements was not admitted to prove the truth of the matter asserted, but rather to assess Maciel’s credibility, an entirely proper reason.
Defendant, relying on United States v. Cromer (6th Cir. 2004) 389 F.3d 662, 672, 677-678, claims that “[m]erely introducing the contents of a confidential informant’s statement to prove the matter asserted is hearsay and violates the Confrontation Clause even if the statement is not attributed to the informant.” Obviously, we need not follow the finding in Cromer. Moreover, it is clear here that the prosecutor was seeking to admit what Maciel observed or what Maciel told police, not the statements that an unidentified female had said that defendant was in possession of a gun. Cromer is inapposite.
Finally, even if we could somehow conclude that the prosecutor’s actions constituted misconduct because they elicited hearsay testimony by the anonymous female tipster in violation of defendant’s federal constitutional confrontation rights, we would conclude it was harmless. (Chapman v. California, supra, 386 U.S. at p. 24 [beyond a reasonable doubt standard is applicable where prosecutorial misconduct infringes upon a defendant's constitutional rights]; see also People v. Hall (2000) 82 Cal.App.4th 813, 817.) As set forth in part III, ante, the evidence that defendant possessed the firearm in the truck was overwhelming without reliance on this testimony. We conclude that any conceivable misconduct was harmless.
VI
DENIAL OF ROMERO MOTION TO STRIKE PRIOR
Defendant contends the trial court failed to exercise its discretion to strike his prior serious or violent felony conviction.
A. Additional Factual Background
The trial court found true the allegations that the prior robbery conviction was a serious or violent felony conviction and that he had served time in prison within five years of committing a new offense.
Prior to sentencing, defendant brought a written motion to strike his prior conviction pursuant to Romero. He argued that the trial court should exercise its discretion to strike the prior because the current offense was nonviolent and not a “serious” offense. Defendant had only one prior conviction in his record, and the offense was committed in 2001. Defendant also had the possibility of employment and had cooperated with police.
The People filed written opposition to striking the prior conviction. They argued that defendant was within the spirit of the three strikes law. Defendant had been recently released from prison when he committed the instant offense. Accordingly, releasing defendant would present a “real and immediate danger” to the public.
At sentencing, the trial court ruled, “The Court also read and considered the counsel’s motion, which was filed to strike the strike. And that was discussed primarily off the record with both counsel. But I read both that and the D.A.’s response to it, which of course, they objected to striking it. And the Court concluded that it would not made sense to strike it. You know, it may mean that if we have to look at it more closely if it was -- if you picked up two strikes in ’01, but with one and your conduct since, not looking as if you are a person who would succeed on probation at this point.” The trial court also noted that defendant had failed to take any blame for the previous conviction or the instant one.
B. Analysis
In Romero, the Supreme Court held that it is within a trial court’s discretion to dismiss one or more strike priors in the interest of justice under section 1385. (Romero, supra, 13 Cal.4th at pp. 529-530.) The key to this analysis is “‘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.’ [Citation.]” (People v. Carmony (2004) 33 Cal.4th 367, 377, quoting People v. Williams (1998) 17 Cal.4th 148, 161.)
“[A] trial court’s refusal or failure to dismiss or strike a prior conviction allegation under section 1385 is subject to review for abuse of discretion.” (People v. Carmony, supra, 33 Cal.4th at p. 375.) “[A] trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.” (Id. at p. 377.) The circumstances must be “extraordinary” for a career criminal to be deemed outside the scheme of the of the three strikes law. (Id. at p. 378.)
Defendant’s circumstances are not extraordinary. It is true that defendant had only one prior felony conviction for robbery (§ 211), which he suffered in October 2001. In 2002, while on probation, he committed a misdemeanor driving-under-the-influence offense (Veh. Code, § 23152, subd. (b)). Defendant was then apparently deported. When defendant returned to the United States, he did not dutifully report to probation, and he was arrested and sent to state prison. Defendant has shown that when granted leniency, he cannot comply with the required terms.
Moreover, although defendant downplays the seriousness of the instant offense, the carrying of a firearm in his car presented danger to the public. In fact, there was evidence that defendant had held the gun that night. Additionally, when he committed the instant offense, he had only been out of prison for one year and was on parole. Defendant has never acknowledged the seriousness of his actions.
We believe both that the trial court was aware of its discretion to strike the prior conviction and that it did not abuse that discretion by finding that defendant did not fall outside the spirit of the three strikes sentencing scheme.
Defendant complains that the trial court did not consider all of the factors in denying his Romero motion. However, the trial court stated that the parties discussed off the record the motion to strike prior conviction. We would prefer that such discussion appeared on the record, but it is clear on the record before us that the trial court was aware of its discretion to strike the prior, took into account the arguments made by counsel, and decided that it should not strike the prior conviction. Since we cannot say that defendant’s sentence falls outside the spirit of the three strikes law, we find the trial court did not abuse its discretion by denying his Romero motion.
VII
DISPOSITION
The judgment is affirmed.
We concur: RAMIREZ, P.J., MILLER, J.