Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CM027251
RAYE, J.The trial court found defendant Ricky Alan Snow guilty of first degree burglary (Pen. Code, § 459), making criminal threats (§ 422), and felony vandalism (§ 594, subd. (a)), and found special allegations of a prior serious felony conviction (§ 667, subd. (a)(1)), two prior serious or violent felony convictions (§§ 667, subds. (b)-(i), 1170.12), and two prior prison terms (§ 667.5, subd. (b)) true. The court denied defendant’s request to strike one or both prior strike convictions pursuant to section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero), and sentenced defendant to 25 years to life in state prison, plus six years.
All further statutory references are to the Penal Code.
On appeal, defendant contends there was insufficient evidence to sustain his convictions and the trial court abused its discretion when it denied his Romero motion. We will affirm.
FACTUAL AND PROCEDURAL BACKGROUND
At approximately 9:30 p.m. on June 25, 2007, Dana Devoll stepped outside her home to have a cigarette. She lived there with her husband, Stone Smith; her daughter, Brandy Crase; her daughter’s fiancé, Steven Morgan; and her husband’s stepdaughter, who was in Utah at the time of the incident. Standing in front of her garage, Devoll saw a dark blue sedan drive by and someone inside the car throw something at the vehicles parked in front of her house. When Devoll inspected her car, she found beer on it. Devoll woke Crase, who was sleeping inside the house, and told her what had happened. Crase discovered a beer can on the ground near the car. They hosed off the car, returned to the house, put the beer can in a plastic bag, and went to bed.
At approximately 11:00 p.m., Devoll and Smith heard someone yelling in the street. They walked into the living room and heard a man outside yelling, “Come out, Steve Morgan.” Smith opened the front door and saw defendant, who was heavily tattooed and wearing a patch over his eye, jumping up and down in the front yard, yelling repeatedly, “Are you Steve Morgan?” Smith said, “No, I’m not,” and told defendant to leave. Smith stepped farther outside and saw “one other person, and at least two, possibly three,” standing behind Devoll’s car. The “one other person” was a woman. The woman, whom Smith and Devoll later identified as defendant’s ex-wife, Shellee Weaver, yelled, “Bitch, tell your daughter to come out here.” Devoll called the police. Smith, realizing he was “way outnumbered,” stepped back onto the porch. Defendant yelled, “You want to cut my other eye out?” then approached Smith and yelled, “I’m going to kill you motherfuckers.” Smith said, “You wait right there,” and started back inside the house to put his shoes on and “prepare for the worst.” Defendant charged the door as Smith tried to close it, but Smith was able to shut the door and lock the deadbolt. Defendant began kicking the door and eventually broke through the bottom panel of the door with his foot. Within seconds, the picture window next to the front door shattered. Inside, Morgan handed an unloaded shotgun to Devoll, who handed the gun to Smith. By the time Smith returned to the door, defendant and the others were in a small white pickup truck, driving away.
Defendant had been the victim of an incident in 1996 during which he was stabbed in the eye.
Devoll also saw the woman standing in the driveway.
In addition to the damage to the house, Devoll discovered the windshield on her car was smashed and the driver’s door scratched.
When police arrived, Devoll and Smith described defendant, the woman in the driveway, and the pickup truck, and Smith told police where he thought defendant and the others might have gone. Smith said defendant was wearing a white T-shirt, full-length denim jeans, and dark blue tennis shoes.
Approximately 30 minutes later, the police summoned Smith and Devoll to identify several people in custody. Smith and Devoll both identified defendant. Devoll also identified the woman from the driveway, whom she later learned was Weaver, a woman who had had an altercation with Devoll’s daughter, Crase, a month prior to the incident.
The arresting officer, John Alvies, testified that defendant was wearing a T-shirt and shorts, and had fresh injuries to his right hand and right ankle. Defendant explained that he received the ankle injury when he climbed into the back of the patrol vehicle, and that he suffered the injury to his right hand in a traffic accident two weeks prior.
Alvies had testified at the preliminary hearing that he believed, but was not sure, that defendant was wearing sandals.
Sometime after the incident, Devoll and Crase filed a small claims action against Weaver, seeking to recover for property damage and personal injury arising from the incident. Devoll denied having identified Weaver during the small claims proceedings as the person who kicked in the door and broke the window on the night of June 25, 2007.
At trial, Devoll recalled that defendant was wearing a light shirt and jeans on the night of the incident, and that he had a patch over one eye.
Weaver testified that on the night of the incident, she was looking for a ride home and went to a trailer park where a man named Darrell Gady agreed to take her home. Weaver and Gady both testified that they left the trailer park at approximately 10:30 p.m. or 11:00 p.m., along with defendant and another man named Pat. Gady’s brother, Tyler Stotts, drove the car. Weaver noticed defendant’s hand was bandaged and asked him about it. Defendant told her he had been injured in a car accident. They drove directly to Weaver’s house, where they were arrested upon arrival. Weaver testified that Devoll identified her in the small claims case as the person who damaged the door and window during the incident.
Defendant denied any involvement in the incident. He testified that he was “[k]icking back” at the trailer park that night, and that he left at approximately 10:45 p.m. or 11:00 p.m. to take Weaver home. They drove directly from the trailer park to Weaver’s house, where they were immediately arrested. Defendant testified he was wearing a T-shirt, and shorts that came down to his knees. Defendant also testified that he had many tattoos, including those on his arms and one on the inside of his leg, below the knee. Defendant stated he had injured his hand in a car accident in April 2007 and since then had been unable to use the hand, which he kept bandaged. He reinjured his hand while “horseplaying” with the kids at the trailer park. Defendant claimed to have scraped his ankle getting into the patrol car at the time of his arrest.
At the conclusion of the trial, the court found defendant guilty as charged.
Prior to the bifurcated trial of the special allegations, the court halted criminal proceedings and granted defense counsel’s request for an examination of defendant’s mental competency pursuant to section 1368. Upon receipt of the examining physician’s report, defense counsel requested, and the court ordered, a second examination by another physician. After consideration of both reports, the court found defendant mentally competent within the meaning of section 1368 and reinstated criminal proceedings.
Following a court trial on the alleged priors, the court found true the allegations of one prior serious felony conviction, two prior prison terms, and two prior serious or violent felony convictions. After conducting a Romero hearing, the court denied defendant’s request to strike one or both of his strike priors. The court denied probation and sentenced defendant to 25 years to life in state prison, plus six years.
Defendant filed a timely notice of appeal.
DISCUSSION
I
Defendant contends there is insufficient evidence to support his convictions, arguing the record, as a whole, casts doubt on the victims’ identifications of defendant, given the victims’ animosity toward defendant resulting from the altercation between Weaver and Crase a month prior to the incident. We disagree.
“[I]n reviewing a challenge to the sufficiency of the evidence, the relevant inquiry is whether, on review of the entire record in the light most favorable to the judgment, any rational trier of fact could have found the elements of the offense beyond a reasonable doubt. [Citations.]” (People v. Young (2005) 34 Cal.4th 1149, 1180.)
“‘To warrant the rejection of the statements given by a witness who has been believed by a trial court, there must exist either a physical impossibility that they are true, or their falsity must be apparent without resorting to inferences or deductions. [Citations.] Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.]’” (People v. Thornton (1974) 11 Cal.3d 738, 754 (Thornton), quoting People v. Huston (1943) 21 Cal.2d 690, 693, Huston overruled on other grounds in People v. Burton (1961) 55 Cal.2d 328, 352.)
“Weaknesses and inconsistencies in eyewitness testimony are matters solely for the jury to evaluate.” (People v. Allen (1985) 165 Cal.App.3d 616, 623 (Allen).)
The court, as the trier of fact and therefore the sole judge of the credibility of the witnesses, could reasonably have rejected defendant’s version of events. On the one hand, defendant denied any involvement in the crimes, testifying that he went straight from the trailer park to Weaver’s house, where he was arrested. On the other hand, Smith and Devoll both testified that they heard defendant yelling and saw him in the front yard. Smith heard defendant threaten to “kill you motherfuckers.” He saw defendant charge the door, maintaining sight of him until the moment the door was closed, and testified that defendant was the only person at the door seconds before the panel was kicked in and the window broken. Immediately after the incident, Devoll and Smith described defendant as wearing an eye patch and having tattoos. They identified him in person shortly after the incident, still wearing the eye patch. They identified him a third time at trial. Devoll’s and Smith’s identifications were consistent with defendant’s own testimony that he had a significant number of tattoos and had previously lost his eye.
On the one hand, defendant testified the injury to his hand was the result of a prior car accident, noting that unless he was cleaning his hand, he kept the injury bandaged, but that the bandage had come off while he was playing with his daughter that evening. He also testified he scraped his ankle getting into the patrol car. On the other hand, Officer Alvies’s testimony that defendant had “fresh” injuries to his right hand and right ankle was consistent with defendant’s having kicked through the door and broken the window.
Defendant claims Devoll’s and Smith’s identifications of him are suspect because they were motivated by “personal animosity” toward him, causing them to “offer police supposition and hearsay” and “grossly overstate[] the independently verifiable aspects of their identifications.” We disagree. Although there were some inconsistencies in both Smith’s and Devoll’s testimony (e.g., the witnesses described him as wearing full-length jeans at the time of the incident, whereas Officer Alvies testified defendant was wearing shorts when he was arrested), inconsistencies and weaknesses in eyewitness testimony are matters to be evaluated solely by the trier of fact. (Allen, supra, 165 Cal.App.3d at p. 623.) Here, the court evaluated the victims’ testimony in favor of the victims. That finding must stand because it is neither apparent that the truth of Smith’s or Devoll’s identification of defendant was a physical impossibility, nor can we find those identifications false without resorting to inferences or deductions. (Thornton, supra, 11 Cal.3d at p. 754.)
Defendant also speculates that had he committed the crimes, he would certainly have covered his tattoos and not worn an eye patch. In essence, he argues he “would know how to burglarize much better than he was supposed to have done in this case.” We are not persuaded by mere speculation, particularly when it is offered to surmise that had one committed the crime, one would have done a better job of it.
The evidence is sufficient to support the convictions.
II
Defendant also contends the court abused its discretion when it denied his motion to strike his strike priors, the result of which was an “unconstitutionally excessive punishment.”
As for the constitutional claim, defendant did not raise that issue in the trial court. Litigation over a court’s exercise of its discretion under section 1385 to strike a recidivist finding does not reach all of the criteria relevant to the claim of constitutionally excessive punishment. (People v. Cole (2001) 88 Cal.App.4th 850, 868-869.) Raising this issue for the first time on appeal not only omits the additional facts on which we determine this question of law (People v. Martinez (1999) 76 Cal.App.4th 489, 496), it also deprives the People of any opportunity to develop a factual record in support of the constitutionality of the sentence (cf. Cole, supra, at pp. 868-869 [unfair to consider this claim on appeal where not litigated in trial court as part of guilty plea, in addition to being barred for lack of certificate of probable cause]). This is why we apply the rule of forfeiture to plenary consideration of the issue initially on appeal (People v. Norman (2003) 109 Cal.App.4th 221, 229), in accord with the general principle that a court should not exercise its discretion to allow a litigant to raise a legal issue initially on appeal to obtain a reversal (see Imagistics Internat., Inc. v. Department of General Services (2007) 150 Cal.App.4th 581, 589).
In any event, defendant’s claim lacks merit. “[I]n ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law, on its own motion, ‘in furtherance of justice’ pursuant to Penal Code section 1385[, subdivision ](a), or In reviewing such a ruling, the court in question must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the 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.)
A constitutional claim of cruel or unusual punishment also requires scrutiny of the offense and the offender. (See People v. Dillon (1983) 34 Cal.3d 441, 479.)
Defendant claims the trial court failed to give proper consideration to mitigating facts, arguing he suffered from “substance abuse problems plus mental disorders evidently never well-defined or addressed during criminal proceedings against him to date.” Those issues, he argues, “cast grave doubt on [his] level of culpability during the offenses.” We disagree.
Defendant’s sole support for his assertion is his own report to probation that he was previously “evaluated for one year while incarcerated in Napa State Hospital in 1988” and “was diagnosed with Bi-Polar Disorder and Attention Deficit Hyperactivity Disorder,” but he could not remember the names of his treating physicians. Defendant also reported that he “was not undergoing medical treatment and was able to control... these disorders absent medication.” The report contains no evidence of mental disorders left undiagnosed or untreated. We note that both reports generated for the section 1368 competency hearing concluded defendant was indeed competent to participate in the criminal proceedings against him and his claims to the contrary amount to nothing more than “malingering.”
Similarly, there is no evidence of a substance abuse problem, as defendant claims. While the probation report states defendant previously drank one can of beer a day (from 1989 to 1999) and used “1/16th oz. per day” of methamphetamine (from 1995 to 1996), defendant reported he “does not consume drugs and has not since being incarcerated in 1997,” and there is no evidence that defendant was under the influence of an illegal substance at the time the crimes were committed. The record does reflect that defendant consumed alcohol at the trailer park prior to the incident; however, neither defendant’s testimony nor that of the witnesses suggests defendant was intoxicated either before or at the time the crimes were committed.
Conceding that the aborted burglary “may technically have shown an intent to vandalize ‘inside’ the house, and a stated intent to kill,” defendant claims what actually occurred were “limited offenses completed (as to the threats and vandalism) from outside.” As such, he urges, the 25-years-to-life sentence was “all out of proportion to his offense, considering [his] patent intoxication, the attenuated nature of his intent, and poorly explored indicators of mental disorder and substance abuse problems.” In addition to the fact that the mitigating facts argued by defendant are not supported by the record as we have previously discussed, defendant ignores the fact that the sentence imposed by the court was, in large part, a direct result of his recidivism. In denying defendant’s Romero request, the court stated: “Here the court finds that the defendant appears to fit squarely within the three strikes law because of his numerous prior convictions, his prior parole violations, and the violent nature of the current offense; therefore the court is declining to strike the prior strike convictions and the motion is denied.” Defendant’s criminal record as a juvenile begins in 1989 and continues through 1996, and includes seven offenses and four violations of probation. His criminal record as an adult reflects a continuing pattern of criminal conduct, including felony convictions for first degree burglary and vehicle theft in 1997 resulting in an 11-year prison sentence, and receipt of stolen property in 2005 resulting in a three-year prison sentence, along with five parole violations throughout. The current offense, while perhaps less egregious when compared to his past crimes, demonstrates that he remains a danger to society with little provocation. Given defendant’s recidivist nature, a greater sentence is warranted. We therefore reject his claim.
III
Pursuant to this court’s miscellaneous order number 2010-002, filed March 16, 2010, we have deemed defendant to have raised the issue (without additional briefing) of whether amendments to section 4019, effective January 25, 2010, apply retroactively to his pending appeal and entitle him to additional presentence conduct credits. In our recent opinion in People v. Brown (Mar. 16, 2010, C056510) ___ Cal.App.4th ___, we concluded that the amendments apply to pending appeals. However, as defendant has a prior serious felony conviction (§§ 667, subds. (b)-(i), 1170.12), the recent amendments to section 4019 do not operate to modify his entitlement to credit (§ 4019, subds. (b)(2), (c)(2) & (f); Stats. 2009, 3d Ex. Sess., ch. 28, § 50).
DISPOSITION
The judgment is affirmed.
We concur: BLEASE, Acting P. J. BUTZ, J.