Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, Super. Ct. No. SCD160797, Larrie R. Brainard, Judge.
O'ROURKE, J.
A jury convicted Miguel Angel Thompson of dissuading a witness by force or threat (Pen. Code, § 136.1, subd. (c)(1)) and Thomson admitted the truth of allegations he had suffered three prior prison terms (§§ 667.5, subd. (b), 668), and two prior convictions qualifying as strikes under the three strikes law (§§ 667, subds. (b)-(i); 668; 1170.12) and constituting serious felonies (§§ 667, subd. (a)(1); 668; 1192.7, subd. (c)). The court sentenced him to an indeterminate term of 25 years to life for the dissuading conviction plus 12 years, consisting of consecutive 5-year terms for the prior serious felony convictions and two years for two of Thompson's prior prison terms. On appeal, Thompson contends: (1) the court prejudicially erred by denying his motion to exclude statements he made to a detentions investigation unit detective while he was in custody, assertedly in violation of his rights under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda); (2) his 25-year-to-life sentence violates the state and federal constitutional proscriptions against cruel and unusual punishment; and (3) the trial court erred by staying rather than striking the prior prison term enhancement for one of his three prison terms.
All statutory references are to the Penal Code.
We agree the trial court erred by staying the one-year sentence for one of Thompson's prison priors rather than imposing the sentence or exercising its discretion to strike it, but reject Thompson's remaining contentions. Accordingly, we reverse that portion of the trial court's judgment staying the one-year enhancement for Thompson's prior prison conviction (for case No. CR1932596) and remand the matter with directions set forth below.
FACTUAL AND PROCEDURAL BACKGROUND
In September 2004, Thompson was incarcerated in the San Diego central jail and a cellmate of Geraldo Ojito, a gang member who was in custody for three gang-related shootings in which Thompson was not involved. According to jail information system records, Thompson, whose moniker was Huero, was a documented member of the Chula Vista Otay street gang and also validated as an associate with the Mexican Mafia prison/criminal street gang. Jesus Flores was a witness to one of the crimes in which Ojito was involved.
Robert Rea, a district attorney investigator, testified that his review of the jail database showed that Thompson was documented as an Otay gang member. Another district attorney investigator, Kenneth Freshwater, testified that at the time of his testimony Thompson was not a documented gang member.
In January 2005, narcotics detectives executing a search warrant at Flores's residence found a crumpled handwritten jail note, also referred to as a "wila" or "kite," written in both Spanish and English. As testified by a district attorney investigator handling gang prosecution cases, the note threatened any "tagger" or gang member who cooperated with law enforcement in the case against Ojito (whose moniker was "Mist"), essentially stating that he and their families and other gang members would be killed (i.e., a "green light" would be issued). Detectives believed the note was written by Thompson because it contained a reference to "Guero Yato Otay," indicating it was probably written by an Otay gang member, and it was signed, "Guero-M San Diego," indicating that the person was also a member of the Mexican Mafia. In Spanish, the word Huero, meaning "light-skinned," can be spelled with a "G" or an "H" or with neither letter. As of February 2005, Ojito was awaiting sentencing in one of his cases.
Although the note's two opening sentences had alternate translations, it was translated as follows: "Hey, friends. It's Homie. The Homer Chore has specific instructions to relate to you dudes and I ain't just bullshitting. If anyone decides to show up to make any statements in this upcoming trial, I will most definitely reach out and not only try to whack each and every one of you dudes, but I will go even further to reach your families. So just to make it specifically clear, the Homer Chore has my direct blessing to give you guys this message from Guero Yato Otay in the S.D.C.J. [¶] And I'm getting out and will extend my full authority on everyone that goes against my word. I have soldiers all over the southeast area, so don't think I can't reach out and not touch a mother fucker everyone want to be a tag banging, but then someone gets hurt or dizzed, and you want to cooperate. Hell, it ain't going down like that, so check your asses or else. [¶] Anyone from any tagging crew and/or neighborhood plays that phony style shit will get a direct green light put on them, families and hood/crew. You want to test my power, go for it. Don't say I didn't warn you dudes Guero-M San Diego. Watch out." The moniker "Chore" was used by two brothers, Marcos Herrera and Carlos David Herrera, both Logan Treinta gang members who were incarcerated at various times at the San Diego central jail in 2004 and 2005.
In March 2005, a deputy district attorney prosecuting Thompson advised Thompson's then defense counsel that she believed Thompson had written a kite involving his cell mate and making a threat to possible witnesses in the homicide case. The deputy district attorney described the note's contents, and told Thompson's defense counsel she would provide her with discovery on the matter. Thompson's counsel then visited with Thompson while he was awaiting a hearing in the South Bay courthouse. Later that same day, Thompson and other inmates were transported by bus from the South Bay detention facility to the San Diego central jail. One of the inmates on the bus was Jesse Rubio, who was scheduled for release upon his return to the jail. On arrival at the jail, Rubio was searched and a note was found in his underwear. Rubio told the deputy who escorted him to the cell that he received the letter from Thompson, though at trial Rubio denied knowing or having seen Thompson or that anyone passed him a note on the bus ride. The second note explained Thompson's efforts to help Ojito and informed the recipient that the original note had been intercepted. Thompson told the bus transportation officer that the note was for Ojito. He later told the same officer that there was nothing in the note, asking the officer if he had seen it.
Translated, the second note read: "Hey Mist. I don't know what's up, but check this out. Remember the wila that I wrote to Chore, that fuckin' dude turned it in or something because they are tripping in court that I'm doing or did you a favor on that. They trying to give me 25 to life on that shit. So if my lawyer Gretchen goes over there, tell her that someone else wrote it, not us or me. Right when I was going to bounce, they come up with this bullshit. I go to court April 6, so, hey, hook me up with that. And you, Profe, and Marcos – make sure you dudes say I was cuffed when that shit went down." The back of the note read: "They got the wila. Make sure you tell Gretchen we don't have nothing to do with that and maybe a P.C. wrote it to smut us up. I wonder what the fuck fuckin' Netz said."
On April 6, 2005, San Diego County Sheriff's Department Detective Danielle Benjamin contacted Thompson and interviewed him in an interview room at the South Bay detention facility. Thompson first denied knowing Ojito but changed his story when the detective refreshed his memory with his housing information. Thompson admitted he wrote kites or wilas to Ojito, telling the detective he most recently wrote to him two weeks before the interview, asking for two packages of soup. Thompson acknowledged speaking with his attorney about the first note, and that he was upset about getting in trouble for doing somebody else a favor. He gave an explanation to Detective Benjamin about why a kite may have been written the day of his bus ride; he said he might have talked to another inmate on the bus who decided to relay a message to Ojito. Thompson could not recall that inmate's identity.
A forensic document examiner who had compared the notes with Thompson's handwriting found significant similarities causing him to opine that Thompson had written the notes.
DISCUSSION
I. Motion to Suppress Thompson's Statements to Detective Benjamin
Thompson contends the trial court prejudicially erred in denying his motion to suppress incriminating statements he made during his investigative interview with Detective Benjamin at the South Bay detention facility. He argues the multi-factor test set forth in People v. Fradiue (2000) 80 Cal.App.4th 15 (Fradiue) and Cervantes v. Walker (9th Cir. 1978) 589 F.2d 424 (Cervantes) demonstrates that though he was already in a jail setting, there was sufficient additional restraint to constitute a formal arrest, requiring that Detective Benjamin give him Miranda warnings. Thompson maintains the error was not harmless beyond a reasonable doubt because his admissions during the interview provided a link to the first note containing the threatening language, and absent those admissions, he would have had a "fair shot" at his defense.
A. Background
Before trial, Thompson moved to exclude the statements he had made during his interview with Detective Benjamin. He argued the statements were inadmissible because he was not provided Miranda warnings though he was assertedly in custody during the interview and also because his statements were involuntary. He requested an evidentiary hearing to demonstrate the involuntariness of his statements.
At the hearing on Thompson's suppression motion, Detective Benjamin testified about her interview with Thompson. In March 2005, she received a case for follow up investigation involving Thompson as a possible suspect in threatening to dissuade a witness. The detective had gathered information about both notes from other investigating officers and knew what kind of information she wanted from Thompson. On April 6, 2005, after determining Thompson had another case pending trial and was in court that day, she traveled to the South Bay detention facility and went to its professional visit room, a very small room with a table and two chairs. She asked a deputy to have Thompson removed from the holding cell and brought there. The detective had not called ahead to let Thompson know she was coming to visit. Thompson, who was housed as a "green-bander," i.e., a person in administrative segregation who is chained whenever moved, was taken to the room in chains and shackles but unchained on arrival at Detective Benjamin's request. The room's door remained unlocked and ajar, though there were deputies standing outside the door. Detective Benjamin introduced herself, telling Thompson she had received a crime report about a note found on another inmate and that she needed to conduct a follow up interview with him. She told him he did not have to talk to her if he did not want to, he was free to end the interview, and she would leave and have the deputy return him to the holding cell at any time. According to the detective, Thompson understood her and answered her questions without ever indicating he wanted to terminate the interview or leave.
During the interview, Detective Benjamin asked Thompson if he had written any kites in the past or on March 11, 2005, and also if he knew who Ojito was. She asked him whether Thompson had any previous conversations with Ojito, and possibly asked whether he had previously written any kites to him specifically. The detective was seated about three to four feet away from Thompson during the interview, and she did not raise her voice at him. After questioning Thompson for 15 or 20 minutes, she notified jail staff the interview was over. Thompson was rechained and escorted back to the holding cell. At the time of the interview, Detective Benjamin was just over 5 feet tall and weighed 130 pounds. She guessed Thompson weighed approximately 200 pounds.
Thompson also testified at the evidentiary hearing. He testified that on April 6, 2005, while he was in custody with the San Diego Sheriff's Department, he was at the South Bay courthouse for a court appearance when he was called out of his holding cell. Deputies told Thompson he was going to his court hearing but instead they escorted him, "cross-chained" (his hands crossed in front of him) and legs shackled, to another holding cell close to the professional visiting area. Thompson testified he thought he was being taken to meet with his attorney and was surprised to find the detective in the room. According to Thompson, his handcuffs were not removed and the door to the room was shut while he met with Detective Benjamin. The detective introduced herself and told Thompson she wanted to ask him some questions. Eventually the topic of her questions became obvious to him. Thompson testified that the detective did not tell him he was free to go, and only told him he did not have to talk to her midway through the conversation. Thompson ended the conversation after about 10 minutes, telling Detective Benjamin that he had nothing else to say. The detective got up, opened the door to the room, and looked for the deputies who had escorted Thompson to the room. Thompson testified that Detective Benjamin did not give him Miranda warnings before asking him questions.
On cross-examination, Thompson stated that the deputies who escorted him to the interview room actually did not say anything to him about where he was going, but he thought he was going to court. He testified Detective Benjamin did not tell him she wanted to ask about a kite, she only asked if she could question him about an incident in which he was involved. Thompson did not answer her right away, but then told her that he knew Ojito in response to her question. According to Thompson, he told her he knew Ojito because at the time, he thought he was his cellmate. He also told the detective that he had sent Ojito one letter (which he later said was just a photograph of him and Ojito), though she wrote his statement down as if he used the plural, "letters." Thompson testified that during the interview the door to the room was closed all the way. He did not like the detective's questions, and she tried to put words in his mouth. When Thompson told her he wanted to return to his cell and asked her to call the deputies, she reached for the door, but at the same time asked him if he knew "Chore," (a person referenced in the first note) and what the name meant. Thompson said he responded, "Yeah" to the question about whether he knew Chore because he had heard the name before.
Finding Thompson was not subjected to any additional restrictions even accepting his testimony, the court allowed Thompson's statements to Detective Benjamin into evidence. The court acknowledged the conflict in Thompson's and the detective's testimony about whether he was chained during her questioning, but found even if Thompson's chains stayed on, there was no added imposition on his freedom of movement because he was chained in such a manner all day given his green-band status. It ruled Miranda warnings were not required where Thompson admitted he was told he could stop speaking at anytime he wished, and it found there were no threats or coercion used against Thompson by Detective Benjamin, who, the court observed, was relatively small and unarmed. Finally, the court found whether the door was either ajar or closed, it was not locked, and thus that circumstance did not constitute an added restriction. Concluding Thompson was advised of his ability not to speak and his responses were voluntary, the court allowed his statements into evidence.
B. People v. Macklem
Shortly before the People filed their briefing in this matter, this court decided People v. Macklem (2007) 149 Cal.App.4th 674 (Macklem), in which we addressed whether a defendant who was already in pretrial detention was in " 'custody for Miranda purposes' " when he was interviewed about a prison assault by a law enforcement official at the facility where he was confined. (Macklem, at p. 686.) The question caused us to examine the definition of custody in a jailhouse setting under Cervantes, supra, 589 F.2d at p. 427 and other cases on which Thompson relies. (Macklem, 149 Cal.App.4th at p. 678.)
In Macklem, the defendant was housed in the George Bailey detention facility pending trial on first degree murder charge when he was involved in a jailhouse attack on his cellmate. (Macklem, supra, 149 Cal.App.4th at pp. 678-681.) Several days after the incident, he was interviewed by Detective Benjamin (who then had the surname Birmingham), at the Vista detention facility, where he made incriminating statements about the jailhouse assault without having been given any preceding Miranda warning. (Macklem, at p. 682.) Macklem unsuccessfully moved to suppress those statements, and on appeal from his conviction of murder and assault, he contended the trial court prejudicially erred in denying his request because his unwarned statements were the product of custodial interrogation obtained in violation of Miranda and his right against self-incrimination. (Macklem, at p. 678.)
Addressing this contention required our review of general legal principles pertaining to custody as reflected in Miranda, as well as the facts of Mathis v. United States (1968) 391 U.S. 1 and Illinois v. Perkins (1990) 496 U.S. 292 (Perkins), situations involving statements elicited from jailhouse detainees. (Macklem, supra, 149 Cal.App.4th at p. 689-691.) We observed Perkins required our consideration of the interplay between police custody and police interrogation when assessing the need to provide Miranda protections against coercion: "In the factual context of a prisoner in pretrial detention, who is being questioned about a different offense than the one leading to the pretrial detention, the analysis of the current custodial status must take into account the type of custody, the type of questioning, and the identity of the questioner." (Macklem, at p. 691.)
Analyzing the leading cases involving whether an inmate in pretrial detention was in "custody" for purposes of requiring Miranda warnings, we concluded they rejected a per se custody rule, i.e., that "custody is custody." (Macklem, supra, 149 Cal.App.4th at p. 694.) We proceeded to decide whether Macklem, when answering the detective's questions, was in custody in that case for Miranda purposes. (Macklem, at p. 695.) "This is a mixed question of law and fact, in which we ask: '[F]irst, what were the circumstances surrounding the interrogation; and second, given those circumstances, would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave.' [Citation.] This is determined on the totality of the circumstances surrounding the alleged interrogation, to decide if prison officials applied additional restraints that further restricted [the defendant's] freedom, thereby triggering Miranda warning obligations." (Macklem, at p. 695, citing Fradiue, supra, 80 Cal.App.4th at p. 21.) In particular, we looked to "whether some additional degree of restraint was imposed upon [Macklem] that forced him to participate in [the detective's] interview" in light of the criteria summarized in Fradiue and other cases. (Macklem, at p. 695.)
Undertaking this analysis, we upheld the trial court's order denying the defendant's suppression motion. Focusing first on how Macklem was summoned to his interview, we noted (1) Detective Benjamin requested that the housing deputy contact Macklem at his cell and ask him if he was willing to come out and talk and told both the deputy and Macklem he was not required to do so; (2) the detective was not an investigator from an outside entity or different jurisdiction and she was not investigating charges that had arisen independently of the jail setting; (3) the detective caused Macklem to be told she was a sheriff's detective investigating the recent jailhouse incident, removing any element of surprise; and (4) the questioning related to matters arising from the original conditions of confinement. (Macklem, supra, 149 Cal.App.4th at p. 695.) As for the physical surroundings of the interview, we observed Macklem had arrived in handcuffs and was uncuffed and left there with the door ajar. (Id. at p. 696.) All of these facts, including the fact he was told he would be returned to his cell at his request and asked if he wanted to answer questions in the interview room, permitted a reasonable inference of his willingness to participate in the interview, and weighed against any finding of coerciveness. (Id. at p. 696.) We observed an interview room where attorneys and doctors consulted with the inmates was "as close to neutral territory as is available in the detention facility." (Ibid.)
Further, we found no clear indication that Macklem was confronted with evidence of his guilt, since the detective conducted the interview by asking him what he knew about the assault incident and terminated the interview when he started talking about his murder case. (Macklem, supra, 149 Cal.App.4th at p. 696.) Finally, in view of the fact Macklem was given the opportunity to leave the room at his request, we concluded the circumstances did not disclose any additional pressure was exerted to detain him in a coercive manner; he was treated like any other adult inmate who had some mental problems (Macklem had been in a special school for attention deficit or attention deficit hyperactivity disorder). (Id. at pp. 679, 696.) Under the totality of these circumstances, we held the court correctly determined that a reasonable person in Macklem's position would have realized he could end the questioning and leave before the end of the interview. "It is not dispositive that the conversation here took place at the detention facility, since Macklem was told he could leave the interview room itself at any time and did not have to discuss the issues." (Id. at p. 696)
C. Analysis We apply an independent or de novo standard of review to the trial court's decision denying Thompson's motion to suppress under Miranda. (People v. Waidla (2000) 22 Cal.4th 690, 730; People v. Roldan (2005) 35 Cal.4th 646, 735.) The reviewing court "examines independently the resolution of a pure question of law; it scrutinizes for substantial evidence the resolution of a pure question of fact; it examines independently the resolution of a mixed question of law and fact that is predominately legal; and it scrutinizes for substantial evidence the resolution of a mixed question of law and fact that is predominately factual." (Waidla, at p. 730.) Thus, we accept the trial court's resolution of disputed facts and inferences and its evaluations of credibility, if supported by substantial evidence. (People v. Cunningham (2001) 25 Cal.4th 926, 992.) Where there is conflicting evidence unresolved by the trial court, the appellate court views the record in the light most favorable to the People. (People v. Jenkins (2000) 22 Cal.4th 900, 969; People v. Stansbury (1995) 9 Cal.4th 824, 831.)
These review principles, in light of Macklem, compel us to uphold the trial court's decision to admit Thompson's statements on grounds the indicia of custodial interrogation in the prison setting were not present. We cannot say the circumstances indicate Thompson was "summoned" to his interview in a manner tending to render the circumstances coercive. Detective Benjamin traveled to Thompson at the South Bay detention facility and simply asked a deputy to have him taken to the interview room. Thompson was already present for a court appearance there, and there is no evidence that it was unusual or a departure from routine for him to be taken to a different room within the location. The trial court implicitly found Detective Benjamin credible and we uphold its credibility determination. As in Macklem, Detective Benjamin was not from an outside entity or different jurisdiction, and she was not investigating charges that had arisen independently of the jail setting. She also told Thompson why she was interviewing him and that it was about a note, removing any element of surprise, and her questioning related to matters arising from the original conditions of confinement. These factors weigh against a finding of custody in this setting. (Macklem, supra, 149 Cal.App.4th at pp. 695-696.)
Further, Thompson was not transported to the interview room any differently than he would normally be as a green-bander who was required to be moved in chains and shackles. Though the trial court declined to resolve the factual dispute as to whether Thompson was uncuffed and the interview room door left ajar during questioning, Detective Benjamin's testimony provides substantial evidence that those were the circumstances in which the interview occurred. In any event, as the trial court found, there is no dispute the room was left unlocked. As in Macklem, Detective Benjamin advised Thompson he did not have to talk to her, was free to end the interview, and she would have the deputy return him to his holding cell at any time, but Thompson remained and answered her questions. These circumstances support a reasonable inference Thompson willingly participated in the interview, and that no additional pressure was exerted to detain him in a coercive manner. (Macklem, supra, 149 Cal.App.4th at p. 696.) While Detective Benjamin asked him specific questions about whether he had written notes to other inmates and whether he knew Ojito, those questions did not "confront[ ] [Thompson] with evidence of his guilt." (Ibid.) Like the circumstances in Macklem,"[n]o apparent additional degree of restraint was imposed on him to coerce him into participating in the interview beyond the everyday conditions of confinement." (Ibid.)
We are not persuaded by Thompson's arguments that his questioning was custodial. He points out he was removed from his holding cell and taken to Detective Benjamin without being given any information regarding his movement, and thus "had no choice in the matter." He maintains he was not "free to leave" the interview room, focusing on the asserted fact that deputies were "either outside the door or nearby," he was prevented from moving without a jail escort, and he was in a windowless room where his exit was "blocked" by a table and door "controlled by Benjamin." But these circumstances to us do not appear any more restrictive than Thompson's current status with regard to limitations on his freedom; as a green-bander he would not be free to leave the room without an escort and restraints in any event. The question is not whether Thompson reasonably felt free to leave, but whether there was some "extra degree of restraint . . . imposed on [Thompson] to force him to participate in the interrogation." (Fradiue, supra, 80 Cal.App.4th at p. 20; see Macklem, supra, 149 Cal.App.4th at p. 695 ["Since Macklem was not free to leave the detention facility entirely, we analyze the facts to determine whether some additional degree of restraint was imposed upon him that forced him to participate in this interview. . . ."].) The evidence in this case does not show any such additional restraint.
Nor is there any evidence to support Thompson's assertion that Detective Benjamin "communicated her belief that [he] was culpable and had the evidence to prove it." Detective Benjamin's testimony about her questioning cannot be construed in any manner to support such an assertion. Under the totality of circumstances, we conclude Thompson was not in custody for purposes of Miranda. Thus, the absence of such warnings by Detective Benjamin did not render Thompson's statements inadmissible.
II. Cruel and/or Unusual Punishment
Thompson contends his 37-year-to-life sentence violates the prohibition against cruel and/or unusual punishment under the state and federal Constitutions. (U.S. Const., 8th Amend.; Cal. Const., art. I, § 17.) The People respond that Thompson waived his claim by failing to raise it in his sentencing brief or at the time of sentencing.
We agree the contention was forfeited when Thompson did not to raise it in the trial court. Because it is a fact specific determination, a claim of cruel and unusual punishment not raised in the trial court is forfeited on appeal. (See People v. Burgener (2003) 29 Cal.4th 833, 886; People v. Norman (2003) 109 Cal.App.4th 221, 229; People v. DeJesus (1995) 38 Cal.App.4th 1, 27.) However, we nevertheless conclude the sentence is not cruel and unusual within the meaning of the state and federal constitutions.
A. State Constitution
Relying mainly on In re Lynch (1972) 8 Cal.3d 410 (Lynch) and People v. Dillon (1983) 34 Cal.3d 441 (Dillon), Thompson argues his sentence is disproportionately excessive to the facts of the crime and his individual culpability. Specifically, he argues his crime was "outside the purview" of his prior criminality, which consisted of theft offenses and two serious felony convictions, and can be "explained by the unusual circumstances, namely, [his] housing with a powerful gang member, Ojito, who was suspected of three homicides." Thompson maintains he was faced with "inevitable pressure associated with Ojito's power and his crimes," making it reasonable to believe he would write a note at Ojito's urging.
Lynch articulated three relevant factors in analyzing whether a punishment is cruel or unusual under the California Constitution: (1) the nature of the offense and offender; (2) comparison of the punishment with the penalty for more serious crimes in the same jurisdiction; and (2) comparison of the punishment to the penalty for the same offense in different jurisdictions. (Lynch, supra, 8 Cal.3d at pp. 425-427.) Thompson does not address the third prong of the Lynch analysis, and we presume those criteria support his sentence under the three strikes law.
The first criterion does not support Thompson's cruel and unusual punishment challenge. A defendant like Thompson who is punished under the three strikes scheme is not merely being punished for the most recent offense, but also for recidivism. (People v. Mantanez (2002) 98 Cal.App.4th 354, 366.) Concluding that extended punishment can justifiably be imposed on defendants who repeatedly commit felonies, the United States Supreme Court and California courts have rejected cruel and/or unusual punishment challenges to life sentences even when the defendant's most recent felony is neither violent nor statutorily classified as a serious offense. (Ewing v. California (2003) 538 U.S. 11, 25-31; People v. Romero (2002) 99 Cal.App.4th 1418, 1431-1433 [25-year-to-life sentence for stealing a magazine]; People v. Mantanez, at p. 366 [25-year-to-life sentence for possession of heroin and receiving stolen property]; People v. Cline (1998) 60 Cal.App.4th 1327, 1337-1338 [25-year-to-life sentence for theft of approximately $600 worth of clothing from department store].) It is only in rare instances, such as when the defendant's current offense was a minimal violation that posed no risk of harm and the circumstances did not show the defendant was a continuing danger to society, that a court might find merit to a cruel and/or unusual punishment challenge to a three strikes life sentence. (See, e.g., People v. Carmony (2005) 127 Cal.App.4th 1066, 1077-1081, 1086-1088 [25-year-to-life sentence for "passive, harmless and technical" registration violation constituted cruel and/or unusual punishment].)
We reject Thompson's argument that his crime is somehow less serious because it was assertedly committed at Ojito's urging, and it is inconsistent with his prior criminal history. Thompson's initial offenses in 1987 and 1998 were petty thefts and a felony burglary, but thereafter, his criminal history is characterized by crimes of increasing seriousness, including in 1992 when his parole was violated upon his commission of a robbery with a deadly weapon. He has had numerous probation and parole violations, including in January 1995, November 1996, July 2002, March 2003, November 2003 and July 2004. His present crime, committed during his incarceration, was not nonviolent or insignificant. Thompson issued a note threatening the lives of potential witnesses to a crime; in gang parlance issuing a green light that authorized other gang members to murder anyone who cooperated with authorities. His crime is consistent with the increasing seriousness of his offenses. We are not persuaded, particularly in view of the note's language (see footnote 3, ante), as well as Thompson's status as an associate of the Mexican Mafia prison gang, that Thompson acted under pressure from anyone in writing the note and there is no evidence such intimidation or pressure occurred.
Nor are we convinced by Thompson's arguments on the second prong of the Lynch/Dillon analysis, comparing his crime with other more serious crimes in California. On this prong, Thompson points to sentences for various crimes committed by first-time offenders. But this comparison to first-time offenders is unpersuasive because "[i]t is proper to punish a repeat offender more severely than a first-time offender." (People v. Martinez (1999) 71 Cal.App.4th 1502, 1512; see also People v. Cooper (1996) 43 Cal.App.4th 815, 816 ["[T]he commission of a single act of murder, while heinous and severely punished, cannot be compared with the commission of multiple felonies"].) As Thompson's past and present convictions together are responsible for his punishment here (People v. Askey (1996) 49 Cal.App.4th 381, 388), we only consider whether his punishment for his current offense with two prior strikes is disproportionately greater than the punishment imposed for more serious crimes accompanied by two strike convictions. Thompson has not undertaken that analysis. That Thompson is a repeat offender is crucial to our determination. The United States Supreme Court has stated, "When the California Legislature enacted the three strikes law, it made a judgment that protecting the public safety requires incapacitating criminals who have already been convicted of at least one serious or violent crime. Nothing in the Eighth Amendment prohibits California from making that choice. . . . Recidivism has long been recognized as a legitimate basis for increased punishment." (Ewing v. California, supra, 538 U.S. at p. 25.) Considering Thompson's age and his long criminal history, there is nothing grossly disproportionate about his sentence. His record distinguishes him from the "unusually immature" teenager in Dillon, supra, 34 Cal.3d at page 488. Thompson has not shown his term under these circumstances is grossly disproportionate to his individual culpability or sentences for other California crimes. It is not cruel or unusual punishment under the California Constitution.
B. Federal Constitution
Nor does Thompson's challenge succeed under the federal standard, as the Eighth Amendment " 'forbids only extreme sentences that are "grossly disproportionate" to the crime.' " (Ewing v. California, supra, 538 U.S. at p. 23; Harmelin v. Michigan (1991) 501 U.S. 1001.) Thompson maintains that even in view of his criminal record, his sentence violates the federal Constitution because a "sentence of 25 years to life for witness intimidation, of a witness who was not dissuaded from testifying, is 'grossly disproportionate' to the crime for which it is inflicted." Thompson provides no evidentiary support for the underlying proposition, but it would not matter in any event for our consideration. This is not, under any analysis, " 'the rare case in which a threshold comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality.' " (Ewing, 538 U.S. at p. 30, quoting Harmelin, supra, 501 U.S. at p. 1005.)
III. Prior Prison Term Enhancement
Thompson contends his sentence is unlawful to the extent the court stayed, under section 654, a one-year enhancement for one of his prior prison terms (case No. CR132596). He argues the court should have stricken the enhancement rather than staying it.
The People concede that a prior prison term enhancement may be imposed or stricken but not stayed. We agree that when a court decides not to impose sentence on prior prison term enhancements, it has the power to strike the enhancements but not to stay them. (See People v. Langston (2004) 33 Cal.4th 1237, 1241 ["Once the prior prison term is found true within the meaning of section 667.5[, subdivision] (b), the trial court may not stay the one-year enhancement, which is mandatory unless stricken"]; People v. Meloney (2003) 30 Cal.4th 1145, 1155 ["It is well established that, as a general matter, a court has discretion under section 1385, subdivision (c), to dismiss or strike an enhancement, or to 'strike the additional punishment for that enhancement in the furtherance of justice' " (fn. omitted)]; People v. Jones (1992) 8 Cal.App.4th 756, 758.) However, the People argue that because the trial court must provide a statement of reasons in order to strike the enhancement, we should remand the matter and direct the court to either impose the enhancement or state reasons in support of striking it.
The record indicates only that the trial court believed it could impose and then stay the one-year enhancement under section 654. Because it did not expressly consider whether to impose the enhancement or exercise its discretion to strike it under section 1385, we will remand the matter with directions that the trial court decide whether to impose or strike that one-year term.
DISPOSITION
The portion of the judgment staying the one-year enhancement for Thompson's prior prison term (Pen. Code, § 667.5, subd. (b)) is reversed and the matter remanded for the trial court to decide how to proceed concerning that enhancement. In all other respects, the judgment is affirmed.
WE CONCUR: NARES, Acting P. J., HALLER, J.