Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County Super. Ct. No. BF109616A. Gary T. Friedman, Judge.
Laura P. Gordon, under appointment by the Court of Appeal, for Appellant.
Edmund G. Brown, Jr., Attorney General, Dane Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Matthew K. Chan and Catherine G. Tennant, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Wiseman, Acting P.J.
In a previous appeal, No. F048765, we affirmed the 2004 conviction of defendant Thomas Joe Shadden of felony offenses arising from his firing of several shots at an unoccupied car belonging to the mother of his children, which was parked in the carport of her apartment complex. In this case, he stands convicted of committing a felony violation of Penal Code section 136.1, subdivision (a)(2) , by attempting to prevent or dissuade a witness to the shooting from testifying at his trial in the prior case. Having been convicted in 1997 of felony offenses arising from his burning of another woman’s car, defendant received an enhanced three-strikes sentence of 35 years to life, to be served consecutively to the 16-year term he received for the car shooting.
Subsequent statutory references are to the Penal Code, unless otherwise noted.
Defendant now argues: (1) there was insufficient evidence to prove a violation of section 136.1; (2) section 136.1 is unconstitutionally vague and overbroad; (3) the court erred in admitting prior inconsistent statements of two trial witnesses and gave erroneous jury instructions about those statements; (4) the court abused its discretion by denying defendant’s request to avoid a life sentence by striking prior convictions; and (5) the three-strikes sentence constitutes cruel or unusual punishment in violation of the state and federal Constitutions. We reject these arguments and affirm the judgment.
FACTUAL AND PROCEDURAL HISTORIES
The facts of the underlying shooting offenses are detailed in our partially published opinion in the prior appeal, of which we take judicial notice. As we stated there, defendant was angry at Vanessa Ortiz, the mother of his children. He drove to her apartment, found her car in the carport, and fired several shots at it. Vanessa’s brother, Jason Ortiz, was standing nearby, as was a friend of Jason’s named Ruben. Defendant was convicted of discharging a firearm in a grossly negligent manner, discharging a firearm at an unoccupied motor vehicle, and being a felon in possession of a firearm. After exercising its discretion to dismiss a prior-offense allegation in order to avoid imposing a third-strike sentence, the court imposed an aggregate prison term of 16 years. (People v. Shadden (2007) 150 Cal.App.4th 137, 139, 140-141, 142, review granted Aug. 8, 2007, S153233, review dism. and cause remanded Sept. 12, 2007 (Shadden I).)
Among the evidence presented to the jury in that case were tapes of seven telephone calls defendant made from jail while awaiting trial. Speaking to Vanessa and other family members, defendant “made many incriminating statements” during these conversations. (Shadden I, supra, 150 Cal.App.4th at p. 142.) These statements included comments about the potential trial testimony of various witnesses. As we stated in the unpublished portion of our previous opinion, “[t]he phone calls constitute very extensive evidence of a plan on defendant’s part to suppress evidence and manipulate witnesses in order to conceal the guilt to which he admitted.”
Based on part of the phone-call evidence, the district attorney filed the information in this case. The information charged in count one that defendant violated section 136.1, subdivision (a)(2), by attempting to prevent or dissuade Vanessa and Jason from attending or giving testimony at trial. It charged in count two that defendant violated the same subdivision by attempting to prevent or dissuade from attending or testifying at trial a “witness referred to as ‘other dude’” in one of the phone conversations. As we mentioned in our previous opinion, this witness was Jason’s friend, Ruben. The information further charged that defendant had been convicted of two serious prior felonies within the meaning of sections 667, subdivisions (a)-(e), and 1170.12, and had served a prior prison term within the meaning of section 667.5, subdivision (b). The prior felonies were violations of sections 422 (making a criminal threat) and 451, subdivision (d) (arson).
The trial court granted defendant’s motion for acquittal on count two. The court declared a mistrial on count one when the jury was unable to reach a verdict.
Defendant was retried on count one. Before the second trial, the information was amended to delete Vanessa’s name from count one.
At trial, the prosecution played a tape of a telephone call defendant made to Vanessa from jail on November 10, 2004. One topic defendant and Vanessa discussed was a plan by which Vanessa and Jason were to contact the police and retract their statements incriminating defendant:
“[DEFENDANT]: Did you call ev—have you even called yet?
“VANESSA: We’re going to get the police report tomorrow and—
“[DEFENDANT]: Why? I told you what you got to do the fuckin’ first day.
“VANESSA: Oh, I’m, I’m gonna do it and I even … told Jason already too.
“[DEFENDANT]: Why didn’t you just call already and say, and we would’ve avoided all of this. The second day you could of called and said it.
“VANESSA: Cause I needed to speak to Jason first to make sure that he was going to go with it and he said yeah too.
“[DEFENDANT]: You talked to him already?
“VANESSA: Yeah he said—
“[DEFENDANT]: Why haven’t you called then? All you have to do is call.
“VANESSA: I tried, I tried to (inaudible) I talked to him yesterday Tommy. He told me right off the bat ‘I’m not testifying.’
“[DEFENDANT]: Why don’t you just fuckin’ call and say what I told you?
“VANESSA: I, I, I will. I’ll call tomorrow morning if you want me to.
“[DEFENDANT]: You fuckin’ should of did it the next morning when I told you.
“VANESSA: I told you I had to wait till I get a hold of Jason and I got a hold of him yesterday.”
Later in the call, defendant told Vanessa the new story she was to give the police:
“[DEFENDANT]: You need to fuckin call. I don’t give a fuck if you call right now. First thing in the fuckin morning.
“VANESSA: Okay.
“[DEFENDANT]: You call em and tell them what you did.
“VANESSA: Okay.
“[DEFENDANT]: What did you do? You got mad cause you heard I was there and I broke that fuckin baby thing …
“VANESSA: Uh-huh.
“[DEFENDANT]: … and you fuckin went out and you fucking had your fuckin friend do it. What friend? Who cares? I’m letting you know what happened.
“VANESSA: Okay.
“[DEFENDANT]: They don’t want to believe you, who cares? Tell em.
“VANESSA: Okay.”
The conversation then turned to the subject of the possible testimony of Jason and Ruben:
“[DEFENDANT]: What you need to do is, make uh, Jason’s homeboy … Jason.
“VANESSA: Uh-huh …
“[DEFENDANT]: What did he say? He’s going to testify?
“VANESSA: He says he’s not.
“[DEFENDANT]: Well then they—they better be somewhere they can’t be found.
“VANESSA: That’s what I said.
“[DEFENDANT]: All right tell him. What about his homeboy?
“VANESSA: Well he, yeah he—that’s—when I talked to him yesterday he said I didn’t even, I didn’t even know it was your husband.
“[DEFENDANT]: Did he say it was me?
“VANESSA: Nope.”
Defendant repeated his instructions for Vanessa’s story a few minutes later: “Tell ‘em you were fuckin’ mad cause I was there half hour previous and you heard I smashed the fucking thing like I did, you know, I was going to fuckin lie, I broke the baby’s (inaudible) fuck it. Dang, you fuckin had your friend shoot it up hey.”
Vanessa testified that she never tried to prevent Jason from testifying. She wanted to avoid giving her own testimony, however, and was arrested for failing to appear at the preliminary hearing. Jason testified that he tried to avoid the subpoena for his testimony at the shooting trial, but did so because he was a drug user and wanted to avoid contact with law enforcement. He said no one asked him not to testify. Both Vanessa and Jason testified at the shooting trial.
The jury found defendant guilty of the charge with respect to Jason. The trial court found the prior conviction and prison-term allegations true. It denied defendant’s request to strike prior strikes and imposed a sentence of 25 years to life (§§ 667, subd. (e)(2)(A)(ii); 1170.12, subd. (c)(2)(A)(ii)), plus 10 years (§ 667, subd. (a)). This sentence was to run consecutively to the 16-year sentence for the shooting.
DISCUSSION
I. Sufficiency of the evidence
Defendant argues that insufficient evidence was presented at trial to prove a violation of section 136.1, subdivision (a)(2). “When an appellant asserts there is insufficient evidence to support the judgment, our review is circumscribed. [Citation.] We review the whole record most favorably to the judgment to determine whether there is substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could have made the requisite finding under the governing standard of proof.” (In re Jerry M. (1997) 59 Cal.App.4th 289, 298.) We conclude that the evidence was sufficient.
Section 136.1 provides:
“(a) [A]ny person who does any of the following is guilty of a public offense and shall be punished by imprisonment in a county jail for not more than one year or in the state prison: [¶] … [¶]
“(2) Knowingly and maliciously attempts to prevent or dissuade any witness or victim from attending or giving testimony at any trial, proceeding, or inquiry authorized by law. [¶] … [¶]
“(d) Every person attempting the commission of any act described in subdivisions (a), (b), and (c) is guilty of the offense attempted without regard to success or failure of the attempt. The fact that no person was injured physically, or in fact intimidated, shall be no defense against any prosecution under this section.”
For purposes of this statute, “malice” is defined as “an intent to vex, annoy, harm, or injure in any way another person, or to thwart or interfere in any manner with the orderly administration of justice.” (§ 136, subd. (1).)
The Supreme Court has stated that the offense requires proof “that the defendant specifically intended to dissuade a witness from testifying.” (People v. Young (2005) 34 Cal.4th 1149, 1210.) We interpret this to mean the prosecution must prove a specific intent either to dissuade or to prevent a witness from testifying, since there is no reason to believe the Supreme Court meant to read the word “prevent” out of the statute.
The evidence was sufficient to establish an attempt to prevent or dissuade Jason from testifying at the shooting trial. Defendant told Vanessa that Jason and his friend “better be somewhere they can’t be found.” He ordered Vanessa to “tell him” so. As a result, the tape contained evidence that, through Vanessa, defendant tried to transmit a message to Jason that he should hide from authorities to avoid testifying.
The jury could reasonably see this as an attempt to prevent Jason from testifying by advising him how to avoid being compelled to do so. Directing a person to hide from a subpoena is surely a way of attempting to prevent his testimony. This proposition is supported by a statement of the Court of Appeal in In re Holmes (1983) 145 Cal.App.3d 934: “Advising a witness to conceal himself for the purpose of avoiding service of a subpoena is in violation of Penal Code section 136.1 and therefore is ‘unlawful.’” (Id. at p. 942 [concluding that attorney who aided her husband in evading service of subpoena committed act constituting contempt of court].) The analysis is the same even if the witness did not want to testify. The prosecution wanted Jason to testify, even though Jason did not want to do so; defendant did not want Jason to testify and attempted to prevent it.
Defendant argues that his “statement did not advise Jason to conceal himself to avoid testifying; it simply informed him he would not be able to avoid testifying if he did not conceal himself.” The jury, however, could reasonably interpret the statement as advice or instructions to Jason to conceal himself.
Defendant points out that the verdict form stated only that defendant attempted to dissuade Jason from testifying, not that he attempted to prevent or dissuade him from doing so. Defendant also asserts that the prosecution “proceeded under the theory of” an attempt to dissuade, not an attempt to prevent. Neither point undermines our conclusion. The jury instructions correctly referred to an “attempt[] to prevent or dissuade.” Where the jury has been properly instructed, the verdict form does not have to delineate every element of the crime, so long as the jury’s intention to convict of the crime charged is unmistakable. (People v. Lobato (2003) 109 Cal.App.4th 762, 765-766; People v. Radil (1977) 76 Cal.App.3d 702, 709-710.) Further, a prosecutor’s articulation of a particular theory of the case does not preclude the jury from reaching a verdict based on a different theory in keeping with the court’s correct instructions. “[W]e presume that the jury relied on the instructions, not the arguments, in convicting defendant. ‘[I]t should be noted that the jury, of course, could totally disregard all the arguments of counsel.’” (People v. Morales (2001) 25 Cal.4th 34, 47.) Defendant does not argue that the court should have given a unanimity instruction to force the jury to choose between preventing and dissuading.
In any event, the jury could also reasonably see defendant’s statements as an attempt to dissuade. Defendant argues that to dissuade someone from something is to talk him out of it; Jason did not want to testify in the first place, so defendant could not, logically speaking, talk him out of it. There is, however, no logical conflict between one person’s attempt to talk another out of doing something and the other’s supposed preexisting intention not to do it. The one making the attempt might not know, or not be convinced, of that intention, and therefore might try to dissuade the other in spite of it. Here, the jury could reasonably conclude that defendant thought Jason still needed dissuading, even if Vanessa said he did not.
Further, the jury could reasonably conclude that defendant tried to dissuade Jason from allowing himself to be forced to testify by leaving himself exposed to compulsory process. We conclude that attempting to dissuade a witness from permitting himself, through inaction, to be subpoenaed is to attempt to “dissuade [him] from attending or giving testimony at” trial within the meaning of the statute. (§ 136.1, subd. (a)(2).)
In sum, the offense defined by section 136.1, subdivision (a)(2), is not limited to attempts to dissuade witnesses who plan to testify. In interpreting a statute, our objective is “to ascertain and effectuate legislative intent.” (People v. Woodhead (1987) 43 Cal.3d 1002, 1007.) “In the end, we ‘“must select the construction that comports most closely with the apparent intent of the Legislature, with a view to promoting rather than defeating the general purpose of the statute, and avoid an interpretation that would lead to absurd consequences.” [Citation.]’” (Torres v. Parkhouse Tire Service, Inc. (2001) 26 Cal.4th 995, 1003.) It is not likely that the Legislature meant to exclude attempts directed at pressuring or convincing a witness to take steps to avoid being compelled to testify, even if the witness is or claims to be already a reluctant one.
In his reply brief, defendant asserts that the evidence was insufficient because it did not include a threat of bodily injury: “The absence of any threat of bodily harm is what invalidates appellant’s conviction .…” This cannot be correct. A threat of bodily harm is not an element of a violation of section 136.1, subdivision (a)(2).
Defendant makes the additional argument that defendant’s actions were too remote to constitute an attempt to prevent or dissuade Jason from testifying. (See People v. Gallardo (1953) 41 Cal.2d 57, 66 [to constitute attempt, preparation is not sufficient and defendant’s act must be “some appreciable fragment” of completed crime], overruled on other grounds by People v. Chapman (1959) 52 Cal.2d 95, 98; People v. Miller (1935) 2 Cal.2d 527, 530 [act constituting attempt “‘must reach far enough towards the accomplishment of the desired result to amount to the commencement of the consummation’”].) He asserts that, because his comments were addressed to Vanessa, not Jason, they lacked sufficient proximity to the completed crime and were mere preparation at most. They could not even constitute solicitation of Vanessa to commit the offense, he contends, since the statute defining solicitation requires a request to prevent or dissuade a witness from testifying by force or threat of force. (§ 653f, subd. (a).)
This argument does not work. An attempt is defined by statute as a specific intent to commit the crime combined with a direct but ineffectual act done toward its commission. (§ 21a.) There is no rule that the “direct … act” can never be the act of asking or directing another to convey a message which, if conveyed, would complete the offense. In other jurisdictions, the use of a third party to transmit a message to a witness has been held sufficient to constitute an attempt to interfere with the witness. In Carlsen v. Morris (D.Utah 1982) 556 F.Supp. 320, a habeas case, the petitioner was convicted under a statute making it a felony to “attempt[] to induce or otherwise cause a person to: [¶] … [¶] [a]bsent himself from any proceeding .…” (Id. at p. 322.) The court held that sufficient evidence supported this conviction. The evidence was a third party’s testimony that the petitioner told him to tell the witness “‘that he better not show up for court the next day.’” (Id. at p. 323.)
In Carlsen v. Morris, the third party actually conveyed the threat to the witness, while Vanessa claimed she never did as defendant asked. This makes no difference, however. There is no rule that an act is necessarily too remote to be an attempt if it consists only of an unsuccessful effort to transmit a message. Commonwealth v. Collington (1992) 419 Pa. Super. 538 [615 A.2d 769] illustrates the point. There, the defendant wrote a threatening letter to the victim. It reached her after she testified and she forwarded it to the prosecution unopened. This was held sufficient to support the defendant’s conviction under a statute prohibiting attempts to intimidate witnesses to withhold testimony. (Id., 615 A.2d at p. 770.)
It is also significant that, where the evidence proving the intent element of attempt is strong, the “act” element can sometimes be based on conduct that would not suffice if combined with a lesser showing of intent. “[T]he plainer the intent to commit the offense, the more likely that steps in the early stages of the commission of the crime will satisfy the overt act requirement.” (People v. Dillon (1983) 34 Cal.3d 441, 455.) In this case, the tape made it perfectly clear that defendant intended, through his instructions to Vanessa, to keep Jason away from the courthouse and out of the reach of authorities so that his testimony could not be presented. These instructions to Vanessa satisfied the act element of attempt.
To summarize our views on this point: Defendant’s action was not too remote just because it consisted of a direction to a third party to convey his message that the witness should evade compulsory process. It also was not too remote just because the message was not conveyed to Jason. Finally, the plainness of defendant’s intent to keep Jason from testifying reinforces our conclusion that his acts were sufficient to support the conviction.
Next, defendant argues that this case falls within subdivision (a)(3) of section 136.1. Subdivision (a)(3) provides: “For purposes of this section, evidence that the defendant was a family member who interceded in an effort to protect the witness or victim shall create a presumption that the act was without malice.” Defendant contends that, although he and Vanessa were not married and did not live together, they regarded themselves as husband and wife, so Jason was essentially defendant’s brother-in-law. Therefore, he claims, subdivision (a)(3) applies and negates the malice element of the offense. He “was acting to protect Jason … from being taken into custody by law enforcement.”
This is not persuasive. The point of subdivision (a)(3) is to create an exception for people who try to protect family members from retaliation for giving testimony. It would be absurd to interpret this provision as supplying a defense to a defendant who urges a family member to hide so as to be “protected” from compulsory process. The statute is not intended to “protect” witnesses from authorities.
II. Constitutionality of statute
A. Due process
Defendant argues that his conviction under section 136.1 violated his constitutional right to due process of law because the statute was too vague to give him notice of the conduct in which he was forbidden to engage. We disagree.
A criminal statute is unconstitutionally vague if it fails to give adequate notice to ordinary people of the conduct it prohibits or if it authorizes arbitrary or discriminatory enforcement. (Kolender v. Lawson (1983) 461 U.S. 352, 357; People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1115-1116.) Defendant’s claim is that the statutory directive not to “attempt[] to prevent or dissuade any witness or victim from attending or giving testimony at any trial” (§ 136.1, subd. (a)(2)) did not reasonably notify him to refrain from speaking to Vanessa as he spoke. It failed to give him this notice, he says, because his words did not constitute dissuasion: “If anything, [defendant] was soliciting his wife to attempt to encourage or persuade his brother-in-law to follow the course of action he had already decided upon taking and not to dissuade or advise him against something.”
The statute is not unconstitutionally vague on its face. Statutes containing similar language have been upheld against vagueness challenges in other jurisdictions. In People v. Esteves (1976) 378 N.Y.S.2d 920, the court considered a statute providing that “‘[a] person is guilty of tampering with a witness when, knowing that a person is or is about to be called as a witness in an action or proceeding, (a) he wrongfully induces or attempts to induce such person to absent himself from, or otherwise to avoid or seek to avoid appearing or testifying at, such action or proceeding .…’” (Id. at p. 922.) It held that this was not unconstitutionally vague; it passed the test of “whether a reasonable man subject to the statute would be informed of the nature of the offense prohibited and what is required of him.” (Id. at p. 924.) It interpreted the word “wrongfully” as indicating a wrongful intent, apparently to forestall any argument that the statute allowed punishment of unintentional inducements to avoid testifying. (Ibid.) We believe the court reasoned correctly in Esteves; and the California statute is no more vague than the one upheld by the New York court. It prohibits attempts to dissuade or prevent witnesses from testifying and specifies that the prohibited conduct must be knowing and malicious. A reasonable person would not find it difficult to understand what behavior the law prohibits. (See also State v. Crescenzi (N.J. 1988) 539 A.2d 1250, 1252, 1253 [upholding similar statute over vagueness challenge].)
The statute also was not unconstitutionally applied to defendant. It gives adequate notice to a reasonable person not to behave as defendant behaved. For the reasons we have already stated, the statutory language reasonably covers defendant’s attempt to transmit a message that a witness should hide from authorities to avoid being compelled to testify. This conduct can be reasonably seen as a violation of the statute both as an attempt to “prevent” and as an attempt to “dissuade” the witness from testifying.
B. Freedom of expression
Defendant also argues that his conviction violated his right to free expression under the First Amendment and the free-speech provision of the California Constitution because section 136.1 is overbroad. Again, we disagree.
A law can violate constitutional protections of speech if, in addition to regulating conduct or expression that is unprotected or otherwise properly regulable, it also “sweeps within its prohibitions what may not be punished under the First” Amendment. (Grayned v. City of Rockford (1972) 408 U.S. 104, 114-115.) A law that has this effect is overbroad. To render the law invalid on its face, the overbreadth must be substantial; in other words, the amount of nonregulable expression the law restricts must be substantial relative to the amount of conduct it legitimately limits. (Houston v. Hill (1987) 482 U.S. 451, 456-459; Broadrick v. Oklahoma (1973) 413 U.S. 601, 615; People v. Rubalcava (2000) 23 Cal.4th 322, 333; People v. Fogelson (1978) 21 Cal.3d 158, 161, 163-165.)
In advancing his overbreadth argument, defendant concedes that, at its core, section 136.1 is directed at conduct that may constitutionally be banned to avoid, in his words, “a clear and present danger of a serious substantive evil, that is, speech that is knowingly and maliciously intended to prevent a witness from testifying at a judicial proceeding.” Since defendant makes this concession, we do not have to decide whether the primary conduct and expression regulated by the statute properly can be criminalized under the First Amendment. We are required to avoid answering questions about the constitutionality of statutes except when presented in a posture that demands their resolution. “[W]e do not reach constitutional questions unless absolutely required to do so to dispose of the matter before us.” (People v. Williams (1976) 16 Cal.3d 663, 667.)
Given defendant’s concession that the primary conduct the statute seeks to regulate may constitutionally be prohibited, the only question we need answer in ruling on his overbreadth challenge is whether he has shown that the statute also restricts or chills a substantial amount of protected conduct or expression in addition. He has not done so. In fact, the only allegedly protected expression he discusses is his own. Substantial overbreadth cannot be established by showing a single impermissible application. (Houston v. Hill, supra, 482 U.S. at p. 458.)
Further, the record does not support the view that the application of the law to defendant’s conduct is an impermissible application. Defendant describes the comments at issue as “a mere statement of fact,” namely the fact that “if Jason truly did not want to testify, he would have to be somewhere where he could not be found.” This means, defendant says, that his “statement was constitutionally protected speech” because it did not show an intent to interfere with Jason’s testimony. The evidence does not support this description of defendant’s statements to Vanessa. Referring to Jason and his friend, defendant said, “[T]hey better be somewhere they can’t be found.” About Jason, he said, “[T]ell him,” thereby instructing Vanessa to convey the message that Jason “better” evade authorities. The former statement is an assertion that the witnesses should withhold their evidence by evading compulsory process. The latter is a directive to convey this assertion to Jason. Neither is “a mere statement of fact.” And as we have said, the tape clearly established defendant’s intent to keep Jason’s testimony out of court. The statements fall within the category of attempting to dissuade or prevent a witness from testifying with a specific intent to achieve that result, a category which defendant concedes may constitutionally be restricted.
For these reasons, defendant’s free-speech challenge fails both as a facial and as-applied challenge.
III. Prior inconsistent statements
Vanessa and Jason gave testimony at trial that contradicted their earlier statements to police. A police officer’s testimony about their earlier statements was admitted under the prior-inconsistent-statement exception to the hearsay rule. (Evid. Code, § 1235.) Defendant argues that the officer’s testimony was inadmissible and that the court’s instructions to the jury about it were erroneous. Defendant is mistaken.
Jason testified that he saw defendant drive up and argued with him, but that his back was turned when the shots were fired; he did not see who fired them and did not recall seeing the gun. He also stated that he “was high on drugs at the time” and did not remember what he said to the police. “I can’t remember anything that much from the incident because I was totally high,” he said.
Vanessa testified that she drove up to her apartment and found defendant in the parking area. Defendant was angry and the two had words. She saw defendant move toward a tire on her car, but did not see what he was doing to it. Then she went inside to get some clothes for Jason. While inside, she heard gunshots, but did not know who fired them and never saw anyone with a gun. She did not call the police. She also said, “Me and Jason were involved in a lot of drugs. We don’t really recall what happened that night.”
Jason and Vanessa gave statements to Officer David Pence when he investigated the shooting. The trial court admitted Pence’s testimony about these statements over defendant’s objection. Jason told Pence he saw defendant take a gun out of his pocket and shoot Vanessa’s car several times. Vanessa told Pence she argued with defendant and then saw defendant stab her car’s tire with an object. This turned out to be an ice pick, which was found on the ground. In addition, the tire had been punctured. Next, she heard shots and went inside to call the police.
When overruling defendant’s objections to Pence’s testimony, the court relied on the hearsay exception for prior inconsistent statements but also said the statements were to be used only “[f]or the purpose of impeachment .…” When instructing the jury at the end of the trial, however, the court stated as follows, in accordance with CALJIC No. 2.13:
“Evidence that at some other time a witness made a statement or statements that is or are inconsistent or consistent with his or her testimony in this trial may be considered by you not only for the purpose of testing the credibility of the witness, but also as evidence of the truth of the facts as stated by the witness on that former occasion.
“If you disbelieve a witness’ testimony that he or she no longer remembers a certain event, that testimony is inconsistent with a prior statement or statements by him or her describing that event.”
The court also instructed the jury in compliance with CALJIC No. 2.09, stating that some evidence was admitted for a limited purpose and that the jury should consider that evidence only for that limited purpose. This instruction referred explicitly, however, to the transcript of the telephone conversation and said nothing about the statements of Jason and Vanessa admitted through Officer Pence.
Although a heading in defendant’s brief asserts that the trial court erred in admitting the prior inconsistent statements, he does not actually present an argument that the statements were inadmissible. That prior inconsistent statements are admissible despite the hearsay rule is well established. Evidence Code section 1235 provides that these statements are not made inadmissible by the hearsay rule so long as Evidence Code section 770 (requiring that the witness be given an opportunity to explain or deny the statement, or that the witness not have been excused from giving further testimony) is followed. Since defendant has not briefed the point, we need say no more.
Defendant contends that the jury instructions were erroneous. First, he claims that the giving of CALJIC No. 2.13 violated his constitutional rights to a jury trial and due process of law because it said prior inconsistent statements “enjoy[] a presumption of truth” and told “the jurors they should favor the truth of the statements made to Pence over those made at trial given under penalty of perjury.” This argument has no merit. The instruction stated that the prior inconsistent statements “may be considered by you … as evidence of the truth of the facts as stated by the witness as stated on that former occasion.” This cannot reasonably be interpreted as conferring a presumption of truth on the prior statements or as telling the jury to believe them and to disbelieve the trial testimony.
In his reply brief, defendant concedes that, rather than asserting a presumption that prior inconsistent statements are true, perhaps the instruction only fails to remind the jury that trial testimony is given under oath and to assert a presumption that testimony given under oath is more likely to be true than the unsworn prior inconsistent statements. He cites no authority in support of such a presumption or a duty to instruct that this type of presumption exists, and we know of none.
Next, defendant claims that the court should have given a limiting instruction saying the truth of the prior statements was not relevant and that those statements were admitted only to impeach the credibility of Jason and Vanessa. He argues that, although the existence of the prior prosecution was relevant to show defendant’s motive in telling Vanessa that Jason had better hide, the facts asserted in the prior statements were not relevant. He claims that the lack of this type of instruction denied him his constitutional rights to a jury trial and due process of law.
Defendant does not argue that any part of Vanessa’s and Jason’s trial testimony was irrelevant. He cites no authority for the idea that, although trial testimony is relevant, the content of a prior inconsistent statement contradicting that testimony may not be relevant. We do not see how this could be the case. If testimony is relevant in the first place, evidence contradicting it and tending to show it may be false necessarily would be relevant.
We need not, however, answer this question in the abstract. Both the trial testimony and the prior inconsistent statements were relevant here. At trial, Jason said he never saw defendant holding a gun or shooting Vanessa’s car. Previously, he said he did see defendant holding a gun and shooting Vanessa’s car. At trial, Vanessa said that she did not see defendant puncture her tire; that she went into the apartment to get Jason’s clothes; that she heard the shots only after going inside; and that she never called the police. Previously, she said she did see defendant puncture her tire and went inside to call the police upon hearing shots. Further, despite their ability to give the officer details of the shooting, Jason and Vanessa both claimed at trial that they were too intoxicated to remember much of what happened. The conflicting versions of what Jason and Vanessa saw and knew were crucial to the jury’s understanding of the telephone conversation in which defendant told Vanessa to tell Jason he better be where he could not be found. If Jason and Vanessa knew defendant was guilty, this increased the likelihood that defendant and Vanessa were talking about how to stop Jason from testifying and not merely having an abstract discussion about the fact that a person who wishes not to testify would do well to conceal himself.
In his reply brief, defendant shifts his focus to Jason’s comment in his prior statement that defendant “had called him a fag” and objected to his living with Vanessa and the children. According to Pence, Vanessa also said defendant “did not like Jason Ortiz living with her because of his lifestyle, him being homosexual, and … [he] wanted Jason Ortiz to move out of the apartment and did not want him around his children.” Defendant asserts that “[t]he highly inflammatory nature of the prior inconsistent statements—characterizing appellant as a violent, hateful, homophobic—was extremely prejudicial.” At trial, Jason denied that defendant called him a “fag” that night. When asked at trial what defendant was upset about that night, Vanessa did not mention homosexuality; she said it was because she had left the children at the home of defendant’s mother all day.
Jason’s and Vanessa’s prior inconsistent statements on this subject were relevant to defendant’s motive in the shooting. This, in turn, was relevant to his intent—and to his guilt—in committing the shooting, which was relevant to his motive in trying to stop Jason from testifying about it. Whether these statements were excessively inflammatory was a question to be decided, if at all, under Evidence Code section 352, which permits a trial court to exclude relevant evidence if the chance of a prejudicial effect substantially outweighs the probative value of the evidence. Defendant’s trial counsel made no objection based on Evidence Code section 352, and defendant makes no argument based on this section on appeal. We have, therefore, no need to address the argument.
Defendant concedes that his trial counsel never requested a limiting instruction and argues that his failure to do so was ineffective assistance of counsel. Since the prior inconsistent statements properly were admitted for the truth of what they asserted, a limiting instruction would have been incorrect, so counsel cannot be faulted for failing to request one. To the extent that defendant’s ineffective-assistance claim applies to a failure to request the exclusion of the prior statements about homosexuality, based on Evidence Code section 352, we reject the claim. Counsel could have had a sound tactical reason for not singling out for objection this aspect of the prior statements. For instance, he might have believed an objection of this kind would only serve to emphasize the homosexuality statements—and the inconsistency between the earlier and later statements on that subject—in the minds of the jurors. Counsel might have thought this would place defendant in a worse light and increase the damage to Jason’s and Vanessa’s credibility. Where, as here, the reasons for counsel’s actions are not in the appellate record and the record does not rule out a sound tactical basis for those actions, we will not reverse on direct appeal. (People v. Zapien (1993) 4 Cal.4th 929, 980; People v. Fosselman (1983) 33 Cal.3d 572, 581.)
Finally, defendant’s briefs contain a number of references to the fact that, in overruling defendant’s objections, the trial court said the prior inconsistent statements were admitted for impeachment purposes only, but contradicted this when it instructed pursuant to CALJIC No. 2.13. We agree that the court’s earlier statement was contradicted by its final instructions, but this was not prejudicial error. The earlier statement was incorrect, but favored defendant; the final instruction did not favor defendant, but was correct. We do not see how defendant could have been prejudiced.
For all these reasons, we reject defendant’s contentions. Jason’s and Vanessa’s prior inconsistent statements were admitted properly, the jury was correctly instructed about them in accordance with CALJIC No. 2.13, and no limiting instruction was required.
IV. Romero request
Defendant contends that the trial court abused its discretion when it denied his request to dismiss, for sentencing purposes, his prior strikes. We disagree.
A trial court has discretion to strike, at a defendant’s request or on its own motion, prior felonies alleged for sentence-enhancement purposes. (§ 1385; People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529-530.) In deciding whether to strike a prior felony allegation, the court 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 [three strikes] 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.) We review a trial court’s decision to deny a request to strike prior strike allegations for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 374.) The court abuses its discretion if its application of the factors set forth in Williams “‘falls outside the bounds of reason.’” (People v. Williams, supra, 17 Cal.4th at p. 162.)
The circumstances of defendant’s current offense are as described above. The evidence that proved defendant attempted to prevent or dissuade Jason from testifying also revealed a more general effort on defendant’s part to obstruct the People’s prosecution of him, such as by directing Vanessa to contact authorities with a concocted story about how she asked a friend to shoot her car. At the sentencing hearing, the prosecutor played a recording of another telephone conversation between defendant and Vanessa in which they discussed Jason’s friend, who was also present at the shooting. Vanessa told defendant that the friend lived with his mother and said she would find out where the house was located. Defendant said, “You make sure that my nephew gets to that mother fuckin’ house, knocks on the mother fuckin’ door.” Jason’s friend testified at the sentencing hearing that a few weeks after the shooting, he awoke at this parents’ house to find that five shots had been fired through the front door during the night.
The recording of the phone conversation also included defendant’s threat that when he got out of jail, there would be unspecified consequences for Vanessa’s perceived offenses:
“[DEFENDANT]: Don’t fuckin’ drive my mom’s car, hey.
“VANESSA: You want me to drive my car with the kids (unintelligible).
“[DEFENDANT]: Yes, I fuckin’ do.
“VANESSA: Okay Tommy.
“[DEFENDANT]: You, I wanted you to switch my daughter’s school. You didn’t do it. So now, you drive your own fuckin’ vehicle.
“VANESSA: All right. All right.
“[DEFENDANT]: Do you understand?
“VANESSA: Yes.
“[DEFENDANT]: I swear to god.
“VANESSA: Okay.
“[DEFENDANT]: Watch. Watch. All this shit I’m adding up, little checks. I cannot wait to get home.
“VANESSA: Hum hum.
“[DEFENDANT]: You think I’m playing?
“VANESSA: No, I don’t think you’re playing but I think you’re being very selfish.
“[DEFENDANT]: I think you’re a fuckin’ punk ass bitch,
“VANESSA: All right.
“[DEFENDANT]: and …”
The call terminated at this point.
When it denied the Romero request, the trial court stated that it was not relying on the friend’s testimony about the shooting of the house where he was sleeping. It appears that this was done only from an abundance of caution. We see no reason why the court could not, in it discretion, have considered this evidence. The only objection to it made by defendant’s trial counsel was that it was “cumulative.” Since no evidence of the shooting at the friend’s parents’ house had been presented before in this case, this testimony was not cumulative.
There is no doubt that the current offense is a very serious one. Section 667 states that a serious felony for three-strikes purposes includes all the offenses listed in section 1192.7, subdivision (c). (§ 667, subd. (a)(4).) Section 1192.7, subdivision (c)(37), lists “intimidation of victims or witnesses, in violation of Section 136.1.” It has been held that this description embraces all violations of section 136.1, although that section does not actually contain the word “intimidation.” (People v. Neely (2004) 124 Cal.App.4th 1258, 1265-1268.) Beyond this technical definition of “serious,” the crime of deliberately trying to prevent facts from being revealed before a criminal tribunal is a matter of the utmost gravity. Courts cannot function properly when attempts are made to manipulate witnesses and prevent evidence from seeing the light of day. The surrounding circumstances in this case, which we have just described, make this situation all the more serious. We reject defendant’s contentions that Neely was wrongly decided and that, in any event, this particular violation was not serious.
The two prior strikes are described in the parties’ papers in support of and in opposition to the Romero request. These arose from an incident in 1997 in which, according to the prosecution’s papers opposing the Romero request, defendant called a woman a “whore” and a “nigger lover,” told her to “suck his dick” and warned her that she and her children were going to die. Then he set fire to her van. He was convicted of arson (§ 451, subd. (d)), making criminal threats (§ 422), and second degree burglary (§ 460, subd. (b)). He was sentenced to three years in prison. The arson and criminal-threats convictions were the two prior strikes charged in the information. The nature and circumstances of these prior offenses include nothing that would tend to place denial of the Romero motion outside the trial court’s discretion. To the contrary, they constitute severely antisocial and dangerous behavior.
Defendant stresses that these convictions arose from a single incident, but this is not of great importance in light of the rest of defendant’s criminal record. The incident was not an isolated aberration. Defendant also emphasizes that he was only 19 years old at the time. The importance of this, also, is diminished by the rest of his criminal record. The incident was not merely an early mistake which he did not repeat.
Turning to defendant’s background, we consider the remainder of his criminal record. The other felonies in defendant’s record are those of which he was convicted in the case underlying the present case: grossly negligent discharge of a firearm (§ 246.3); shooting at an unoccupied vehicle (§ 247, subd. (b)); and being a felon in possession of a firearm (§ 12021, subd. (a)(1).) This incident has important points in common with the 1997 incident. In both cases, the record indicates that defendant vented anger or aggression toward a woman by destroying valuable property of hers in a highly dangerous manner.
Defendant’s record also includes seven misdemeanors. In 1994, as a juvenile, he was found to have violated section 496 (receiving stolen property) and Vehicle Code section 23152, subdivision (a) (driving under the influence). In 1996, as an adult, he was convicted of violating section 273.5 (willful infliction of corporal injury on a spouse or cohabitant), section 148 (resisting a peace officer), and section 602, subdivision (n) (trespassing by driving a vehicle on another’s property). In 2000, defendant was again convicted of driving under the influence. In 2001, he had a second conviction of resisting a peace officer. Defendant’s record also includes four violations of probation (three in 1997 and one in 2001) and one violation of parole (in 2000).
To summarize: In the 10 years from his first encounter with the criminal justice system in 1994 (when he was 16 years old) to the current offense in 2004, defendant committed offenses in 1994, 1996, 1997, 2000, 2001, and 2004. In those 10 years, he committed a total of 14 criminal offenses (the seven misdemeanors described in the previous paragraph, plus the three offenses arising from the 1997 incident; the three offenses arising from the shooting of Vanessa’s car; and the current offense). Throughout this time, he received sentences that included forestry camp, probation, counseling, county jail, state prison, and parole, but he continued to reoffend.
Defendant’s criminal record was the focus of the comments the trial court made when it denied the Romero request:
“I’ve had an opportunity to observe the trial, obviously, and I’ve had an opportunity to look at the gentleman’s record.
“And in looking at the record, the incidents in ’96 and ’97, the gentleman, in looking at his background, has a definite problem with anger management.
“Looking at his prior felony convictions, the prior strikes, the particulars of the instant offenses, looking at the dates he’s in custody, he violates parole, violates probation, certainly presents to me a portrait of an individual that I think is within the spirit of the three-strike legislation and I feel that it would not be in the furtherance of justice or in the interests of justice to strike any of the priors and, therefore, I’m respectfully denying the Romero motion to strike the prior.”
The probation report contains the following additional information relevant to defendant’s background. He was born on November 12, 1977, and was two days shy of his 27th birthday when he spoke to Vanessa from jail on November 10, 2004. He was a high-school graduate and was enrolled at Bakersfield College at the time of his arrest. He was or had once been affiliated with a gang known as the Varrio Bakers. He had used marijuana and methamphetamine, but had stopped using marijuana and did not consider himself an addict. He was in good health. He had three children, ages eight, two and one, with Vanessa. He was a union member and had been employed as an apprentice at a sheet metal business for five years, earning $2,500 to $3,000 per month. Both of his parents were alive and resided in Bakersfield, and he had two siblings, one serving a prison sentence. The report states that all this information was provided by defendant.
Judge Oberholzer, who sentenced defendant in the shooting case, received 14 letters supporting defendant. Defendant’s trial counsel brought these to the attention of the sentencing court. The writers included Vanessa, as well as defendant’s parents, daughter, sister, grandmother, aunts, cousin, employer, and pastor. Most of the letters urged the court not to impose a three-strikes sentence in that case (as, in fact, it did not). Letters from family members said his family needed him and he was a good father. His employer wrote that he worked from February 2002 to March 2004 and was a good employee. Vanessa wrote to the judge in this case, requesting that he allow defendant to marry her before the sentencing hearing. The record does not show whether this took place.
In arguing that the court abused its discretion, defendant emphasizes the support expressed in these letters. It is natural that defendant’s family would have a strong wish not to see him sentenced to a life term, and we respect their feelings. In addition, the letter written by defendant’s eldest child, asking the court to “[p]lease let my Daddy come home,” is heartbreaking. We also acknowledge that his employer’s good opinion is relevant to the issue of defendant’s prospects. The court was well within its discretion, however, in concluding that these considerations did not outweigh those supporting application of the three-strikes law.
Also, in many instances, the letters denied defendant’s guilt. For example, his mother asserted that he was “falsely accused.” His father claimed that defendant had been “the victim of the state” since he was 16, and that the prosecutor had manipulated evidence in the 1997 case and lied to the jury in the shooting case. A friend wrote, “Yes, he did wrong for whatever he did, regardless or not if he did or didn’t do it.” His sister wrote that he should not be taken away from his family “for something he himself did not do.” We have no doubt of the sincerity of the writers, but opinions of this kind do little to support a Romero request.
Defendant argues, finally, that the trial court in this case ought to have granted his Romero request because the court in the underlying case did so. He says, “one judge was willing to dismiss one of [defendant’s] serious felony priors and sentence him to a two-strike sentence where he had fired a gun at an unoccupied vehicle while others stood by watching, but another was not willing to do so where [defendant] merely asked his wife in a phone call to tell her brother he would have to hide if he did not want to testify. [¶] The irony of this disparity compels reconsideration of [defendant’s ] sentence.” There is no irony. The sentencing court in this case obviously had one more felony conviction to consider—the current offense—than did the court that sentenced defendant for the shooting. It is unsurprising that the court in this case was less inclined to relieve defendant of the consequences of his recidivism.
Considering all the factors, we cannot conclude that the trial court abused its discretion in denying defendant’s Romero request. Defendant is a violent recidivist who has displayed a powerful determination to evade responsibility for his crimes, committing a new crime in the process. His offenses have been frequent. Various forms of punishment, increasing in severity, have been applied to him without deterring new offenses. He is within the spirit of the three-strikes law.
V. Cruel or unusual punishment
When the trial court denied the Romero request, his trial counsel placed on the record an objection that the three-strikes sentence constituted cruel or unusual punishment under the state and federal Constitutions. He advances this argument again now. We reject it.
Under the California Constitution, punishment is cruel or unusual if, although not cruel or unusual in its method, it is “so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.” (In re Lynch (1972) 8 Cal.3d 410, 424, fn. omitted.) The cruel-and-unusual-punishment clause of the Eighth Amendment of the federal Constitution also includes a “‘narrow proportionality principle’ that ‘applies to noncapital sentences.’” (Ewing v. California (2003) 538 U.S. 11, 20.) A determination of whether a punishment is cruel or unusual because of disproportionality may be made based on an examination of the nature of the offense and the offender, “with particular regard to the degree of danger both present to society.” (In re Lynch, supra, 8 Cal.3d at p. 425; see also People v. Weddle (1991) 1 Cal.App.4th 1190, 1196.) With respect to the offense, we consider “the totality of the circumstances … of the case at bar.” (People v. Dillon (1983) 34 Cal.3d 441, 479.) With respect to the offender, we consider his “individual culpability as shown by such factors as his age, prior criminality, personal characteristics, and state of mind.” (Ibid.) A proportionality analysis can also take account of punishments imposed for similar or greater crimes in other cases in California and other jurisdictions. (People v. Ruiz (1996) 44 Cal.App.4th 1653, 1661.)
Defendant has not shown that his sentence constitutes cruel or unusual punishment according to these criteria. In discussing the nature of the offense and offender, defendant again minimizes the seriousness of the current offense and of his criminal history. We reject these contentions for the reasons we have already given. The current offense was a serious one committed under circumstances that aggravated its seriousness, and the offender is a violent recidivist who has failed to remain crime-free despite the application of multiple deterrents and the provision of multiple opportunities to reform.
In comparing the sentence imposed here to those applied to other crimes in this jurisdiction, defendant observes that a murderer can receive a lesser sentence than he received, as the sentence is 15 years to life for second degree murder and 25 years to life for first degree murder. The difference between defendant and a person receiving one of those sentences, of course, is defendant’s prior strikes. A murderer with the same criminal history as defendant could receive a sentence as great as or greater than his, depending on the circumstances.
Defendant attempts to meet this fact by pointing out that a third-strike sentence can be the same whether the final offense is one like defendant’s or a more serious one, such as armed robbery or forcible rape. This, he says, shows that third-strike sentences imposed for less serious offenses are unconstitutionally disproportionate. We do not think so. The Legislature could have created a three-strikes system with additional gradations, so that, for instance, the sentence would be 40 years to life for a third-strike armed robbery, 50 years to life for a third-strike forcible rape, and so on; however, it was not constitutionally required to do so.
Defendant also argues that he would have received a much lesser sentence or not been found guilty of an offense at all in some other states. He cites statutes of several states in which witness tampering either is a misdemeanor or is not an offense unless it involves force, a threat of force, intimidation, fraud, or bribery. It is not necessarily unconstitutional, however, for one state to punish as a felony what other states punish as a misdemeanor or not at all. Further, the maximum sentence for a felony violation of section 136.1, subdivision (a)(2), with no enhancements, is three years. (§ 18.) It is not even arguable that this is constitutionally disproportionate to the crime. Defendant’s real argument, then, is that his current offense is so minor that the combined effect of treating it as a felony and treating that felony as a third strike results in an unconstitutionally disproportionate sentence. This argument overlooks the fact that a third-strike sentence does not punish the offender “merely on the basis of his current offense but on the basis of his recidivist behavior.” (People v. Kinsey (1995) 40 Cal.App.4th 1621, 1630.) Defendant’s recidivist behavior, as we have said, is very serious. When this is taken into account, it can be seen that the sentence is within the constitutional parameters established by the case law on the three-strikes statute. (Ewing v. California, supra, 538 U.S. at pp. 18, 19, 30-31 [three-strikes sentence of 25 years to life not cruel and unusual punishment under federal Constitution for current offense of shoplifting three golf clubs with three prior residential burglaries, prior first degree robbery, and other prior offenses]; People v Romero (2002) 99 Cal.App.4th 1418, 1424, 1433 [three-strikes sentence of 25 years to life not cruel or unusual punishment under California Constitution for current offense of shoplifting magazine with prior burglary, prior lewd act with child under age 14, and other prior offenses].)
Finally, defendant asserts that the three-strikes law itself “is clearly unconstitutional because it is disproportionately harsh when compared to punishments for similar crimes in other states.” Given that defendant does not elaborate on this facial attack on the statute, we will not address it further.
For all these reasons, we conclude defendant’s sentence is not “grossly disproportionate” and therefore not cruel or unusual. (Ewing v. California, supra, 538 U.S. at p. 23; People v. Romero, supra, 99 Cal.App.4th at p. 1431.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: Cornell, J., Hill, J.