Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 08CF0715, W. Michael Hayes, Judge.
Barbara A. Smith, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
FYBEL, J.
INTRODUCTION
Defendant Vinh Thanh Vo appeals from the judgment entered after a jury found him guilty of one felony count of making criminal threats and found true, inter alia, that he had four prior strike convictions within the meaning of Penal Code sections 667, subdivisions (b) through (i) and 1170.12, subdivisions (a) through (d). (All further statutory references are to the Penal Code unless otherwise specified.) Defendant contends (1) insufficient evidence supported his conviction for making criminal threats; (2) the trial court erred by admitting evidence of defendant’s prior incidents of domestic violence under Evidence Code section 1109; and (3) the trial court abused its discretion by denying his request the court strike his prior strike convictions before sentencing him.
We affirm. First, following an argument, defendant kicked down the locked door of the bedroom to which his girlfriend, Ha Thi Tran, had retreated, and threatened to kill her and shoot her in the head. One of the police officers who responded to the 911 call placed by Tran’s daughter found Tran uncontrollably crying, shaking, shivering, and repeatedly stating, “I’m scared” and “he’s going to kill me.” Defendant’s conviction was therefore supported by sufficient evidence.
Second, the trial court did not err by admitting evidence of defendant’s prior acts of domestic violence that occurred in 1998. The admitted evidence was brief, primarily consisting of the factual basis defendant provided in pleading guilty to those offenses. The incidents occurred within 10 years of trial of the current charged offense and thus did not run afoul of the 10 year limitation of prior offenses under Evidence Code section 1109. The evidence was probative and not unduly prejudicial.
Finally, the trial court did not err in refusing defendant’s request that it strike his prior strike convictions for purposes of sentencing. Defendant’s extensive criminal history, coupled with the serious nature of the charged offense, supports the trial court’s denial of defendant’s request.
This fact summary is based entirely on evidence presented at the trial of the charged offense.
I.
The following facts regarding the substance of C.H.’s 911 call is based on the transcript of the call included in the clerk’s transcript.
At 3:19 a.m. on March 3, 2008, 17 year old C.H. dialed 911 and asked the operator to have a police officer come to her house because her mother, Ha Thi Tran, was fighting with her boyfriend whom C.H. identified as defendant. She told the operator that defendant had been drinking and was “causing trouble.” C.H. said that she and her mother had locked themselves in a room and C.H. could hear defendant outside the room breaking things, “kinda’ opening the door, ” slamming doors, and breaking a bottle.
II.
Officer Luis Barragan Testified About His Investigation Following C.H.’s 911 Call, Including His Interviews with C.H., Tran, and Another Tran Daughter, B.H.
Officer Luis Barragan of the Santa Ana Police Department arrived at C.H.’s house at 3:29 a.m. and met C.H. who was outside. C.H. appeared to be relieved to see Barragan and the two other officers who arrived at the house. She was “very fidgety” and “[r]eal anxious” for the officers to go inside the residence. She told Barragan that her mother and defendant were involved in an altercation inside the residence and that defendant tried to pick up a knife, but C.H. was able to get it before he did.
As Barragan walked to the back of the residence where C.H. and her family lived, Barragan could hear a man and a woman yelling in Vietnamese. Defendant walked out of the residence and was detained by the officers, and Barragan asked him what had been going on. Barragan observed that defendant’s eyes were red and watery and smelled alcohol on defendant’s breath. Defendant told Barragan that he had had an argument with his girlfriend; defendant’s speech was slurred.
C.H. escorted Barragan into the residence. In a hallway, Barragan saw 10 to 12 beer bottles on a table and the floor; one of the bottles was broken.
Barragan entered a bedroom in which he found Tran, C.H.’s 19 year old sister B.H., and C.H.’s six year old and eight year old siblings who were sleeping. Tran was “crying uncontrollably” and pacing back and forth. She told Barragan that she had gotten into an argument with her husband. Barragan took her out of the bedroom to speak with her privately. He tried to calm her down, but she continued to cry uncontrollably and repeatedly stated, “he’s going to kill me” and “I’m scared.”
None of children is defendant’s biological child.
Tran explained to Barragan that defendant had been drinking “all night” and had been screaming at her. She locked herself inside a bedroom, but defendant kicked the door open. (Barragan observed that the door was completely off its hinges and was resting against the dresser on the left wall of the bedroom.) Tran told Barragan that after defendant kicked the door open, he told her that he was going to kill her and he would shoot her in the head. Tran did not know whether there was a gun in the residence. During their conversation, Barragan observed that although Tran had calmed down somewhat, she continued to “cry[] frantically.” She told Barragan that she knew if defendant went to jail, he would hurt her when he was released. She said he was capable of killing her in light of his criminal history, and further stated he was on parole for committing an assault with a deadly weapon. Tran stated defendant had physically harmed her in the past, and that 30 days earlier, he “lost it” during an argument and twice punched her in the face; she feared the evil look on his face when he hurt her.
Barragan next spoke privately with C.H. She told Barragan a story similar to the one Tran had told him. She said that after Tran and defendant had argued, Tran locked herself in the children’s bedroom. C.H. said the argument was so heated she truly believed that if she had not contacted the police, defendant would have “killed [Tran] and everybody else inside the house.” She did not know what Tran and defendant had been arguing about. She saw defendant kick down the locked bedroom door; she was “very scared.” C.H. heard defendant tell Tran that he was “going to shoot her in the head”; she said defendant had threatened numerous times to kill Tran. C.H. saw a knife in the room and was able to grab and hide it before defendant was able to grab it; Barragan did not find the knife in the house.
Barragan also privately interviewed B.H. who told him that defendant and Tran had been screaming at each other and that defendant said “fuck you” to Tran in Vietnamese. B.H. too told Barragan that defendant threatened to shoot Tran in the head and constantly threatened her.
III.
Tran, C.H., and B.H. Testify to a Different Series of Events from What They Told Barragan on March 3, 2008.
Trial took place in July and August 2008-only about five months after the charged offense occurred.
At trial, Tran, C.H., and B.H. denied much of what they had told Barragan.
A. Tran’s Testimony
Tran testified that defendant is still her boyfriend whom she visits every week in jail; they had been in a relationship for over one year. In March 2008, she depended on defendant for financial assistance; she stated she still depended on him for financial help.
Tran testified that in the early morning of March 3, 2008, defendant was displeased with her because she had arrived home around 2:00 a.m. or 3:00 a.m. after having attended a birthday party with her two youngest children. C.H. picked them up and drove them home; Tran could not remember if B.H. went to the party. During cross examination, Tran testified that she did not arrive home until the early morning hours of March 3 because she went to a casino that night with her children to “check it out” (but not to gamble) and “play games” with her children. On redirect examination, Tran testified she went to the birthday party and then to the casino before returning home.
Tran testified this had been the first time she had stayed out late. Defendant was not yelling at her, but was mad at her; she had failed to answer his calls on her cell phone, she arrived home late, and she failed to prepare a meal for him that night. Although she insisted he was talking to her “[i]n a nice way, ” they were arguing. She went to the children’s bedroom and hooked the metal latch to the doorframe to lock the door; she locked the door only because she did not want to hear defendant’s questions again.
Defendant followed Tran to the bedroom and asked her to return to the bedroom they shared. She testified that she told Barragan defendant merely knocked on or shook the door, the lock broke, and the door fell down; she stated the door was defective. She denied telling Barragan that defendant kicked the door and forcibly entered the bedroom. She said defendant stated, “if you don’t love me anymore, then you might as well just kill me.”
Tran denied telling Barragan that defendant had been drinking all night and screaming at her. She testified defendant never threatened her and denied thinking defendant was capable of killing her; she denied telling Barragan otherwise. Tran denied crying before the police officers arrived that morning. She explained she was afraid only “because [she is] a woman, ” she had done something wrong, and she did not want defendant to yell at her and make her unhappy. She stated she was not afraid she would get hurt and further stated he had never physically harmed her.
Tran also testified she did not remember what she told Barragan. Tran stated she spoke to Barragan only in Vietnamese which her daughters translated into English for him. (Barragan testified he spoke directly and privately to Tran in English, did not use anyone to interpret for her, and never felt there was a lack of communication with Tran.)
B. C.H.’s Testimony
C.H. testified she only spoke with Barragan when she translated for Tran. C.H. testified Tran and defendant argued after Tran, C.H., and C.H.’s siblings returned home late after attending a birthday party. (C.H. did not remember going to the casino.) Tran and defendant had occasionally argued before, but this argument was worse.
C.H. testified that after Tran came into the children’s room and locked the door, defendant stood outside the door, calmly asking her to open the door; Tran ignored him. Defendant shoved the door open, appeared “a little angry, ” and told Tran to return to their bedroom. He left the room, returned with a knife, walked up to Tran, and said, while pointing the knife at himself, that he wanted her to stab him.
C. B.H.’s Testimony
B.H. testified that on March 2, 2008, she went to a birthday party with Tran and her siblings, and returned home after a few hours. She also testified that after the birthday party, they went to a casino and then returned home. After they returned home, defendant and Tran began to argue, but were “[n]ot really yelling.” Tran came into the children’s bedroom and somebody locked the door. Defendant shoved the door “a little.” B.H. said it was a “normal push” and the door “just bust open.” Then, Tran and defendant “just started talking”; B.H. did not remember what they were talking about. She stated she had never heard defendant threaten or use profanity against Tran.
IV.
Defendant’s Prior Incidents of Domestic Violence
Before trial, the court granted the prosecution’s motion to admit evidence of defendant’s prior domestic violence offenses, under Evidence Code sections 1109 and 1101, subdivision (b). The following stipulation regarding those offenses was read to the jury: “On March 29, 1999, defendant... pled guilty to two counts of Penal Code section 273.5[, subdivision ](a) [infliction of corporal injury on spouse or cohabitant causing traumatic injury], one count of Penal Code section 245[, subdivision ](a)(1) [assault with a deadly weapon or by any means of force likely to produce great bodily injury], and three counts of Penal Code section 422 [making criminal threats]. [¶] Defendant admitted the following factual basis as part of his plea to the above charges: [¶] On August 13, 1998, and November 29, 1998, I inflicted a corporal injury resulting in a traumatic condition upon my wife. [¶] And on August 13, 1998, August 15, 1998, and August 17, 1998, I threatened to commit crimes which would result in great bodily injury or death, intending to make threats, and making them under circumstances conveying gravity of purpose and immediate prospect of execution so as to reasonably cause my victim to feel sustained fear for her safety. [¶] On August 13, 1998, I assaulted my wife by means of force likely to produce great bodily injury.”
Defendant’s brother, Steven Vo, testified that he was present at defendant and his then current wife’s residence at the time of an incident in August 1998, but stated he did not remember any details of what happened other than that he heard an argument, came downstairs, and saw police officers. He denied telling a police officer that he saw defendant with a cleaver chase his wife out of the house or that he took the cleaver from defendant and put it back in a drawer. An investigator for the prosecution testified that two weeks before Vo testified, Vo told the investigator he recalled the incident during which defendant was drunk and Vo took away a meat cleaver from defendant.
PROCEDURAL BACKGROUND
Defendant was charged in an information with one count of making criminal threats in violation of Penal Code section 422. The information as amended further alleged that, pursuant to Penal Code section 667.5, subdivision (b), defendant was convicted in July 2005 for violating Health and Safety Code section 11350, subdivision (a), and, in August 2000, for violating Penal Code section 245, subdivision (a)(1). The information alleged as to each prior conviction, defendant served a prison term.
The information also alleged, pursuant to section 667, subdivision (a)(1), defendant was previously convicted (1) in March 1999 of committing the serious felony of making criminal threats in violation of section 422 and (2) in March 1999 and August 2000 of committing the serious felony of committing assault with a deadly weapon or by any means of force likely to produce great bodily injury in violation of section 245, subdivision (a)(1). The information further alleged that, pursuant to sections 667, subdivisions (d) and (e)(2)(A), and 1170.12, subdivisions (b) and (c)(2)(A), defendant had four prior strike convictions within the meaning of the Three Strikes law.
The prosecution filed a motion to admit defendant’s prior conduct under Evidence Code sections 1101, subdivision (b) and 1109. The court granted the motion.
Following trial, the jury found defendant guilty as charged. The jury also found all the prior conviction allegations true.
Defendant filed a motion requesting the court to dismiss the prior strike convictions. Defendant also filed an invitation for the court to exercise its discretion to dismiss the prior strike convictions pursuant to section 1385. The court denied both motions. The trial court sentenced defendant to a total prison term of 35 years to life. The court’s minute order states: “The reason Court pronounced judgment in this manner is as follows: the defendant was ineligible for probation pursuant to Penal Code Sections 667[, subdivision ](c)(2) and 1170.12[, subdivision ](a)(2); the defendant suffered two or more prior strike convictions which did not arise on the same date nor did they arise out of the same set of facts. Specifically, it... has been found true that the defendant suffered three of his prior serious felonies in case 98WF2653 and suffered a separate serious felony conviction in case 00WF1280.” Defendant appealed.
DISCUSSION
I.
Substantial Evidence Supports Defendant’s Conviction for Making Criminal Threats.
Defendant contends his conviction for making criminal threats is not supported by substantial evidence because insufficient evidence showed his threats (1) were immediate and specific as to convey to Tran “a gravity of purpose and an immediate prospect of execution of the threat” (§ 422); and (2) caused Tran “reasonably to be in sustained fear” for her safety and that of her immediate family members (ibid.). For the reasons we explain post, defendant’s arguments lack merit.
“When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence-that is, evidence that is reasonable, credible, and of solid value-from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.]... We presume in support of the judgment the existence of every fact the trier of fact reasonably could infer from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact’s findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] A reviewing court neither reweighs evidence nor reevaluates a witness’s credibility. [Citation.]” (People v. Lindberg (2008) 45 Cal.4th 1, 27.)
“In order to establish a section 422 violation, the prosecution must establish (1) that the defendant had the specific intent that his statement would be taken as a threat (whether or not he actually intended to carry the threat out), and (2) that the victim was in a state of ‘sustained fear.’ The prosecution must additionally show that the nature of the threat, both on ‘its face and under the circumstances in which it is made, ’ was such as to convey to the victim an immediate prospect of execution of the threat and to render the victim’s fear reasonable.” (People v. Garrett (1994) 30 Cal.App.4th 962, 966 967.)
Section 422 provides in part: “Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family’s safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison.” (Italics added.)
In People v. Hamlin (2009) 170 Cal.App.4th 1412, 1433, the appellate court stated: “‘To constitute a criminal threat, a communication need not be absolutely unequivocal, unconditional, immediate, and specific. The statute includes the qualifier “so” unequivocal, etc., which establishes that the test is whether, in light of the surrounding circumstances, the communication was sufficiently unequivocal, unconditional, immediate, and specific as to convey to the victim a gravity of purpose and immediate prospect of execution.’ [Citation.]” The court further stated: “‘[I]t is the circumstances under which the threat is made that give meaning to the actual words used. Even an ambiguous statement may be a basis for a violation of section 422.’ [Citation.] The jury is ‘free to interpret the words spoken from all of the surrounding circumstances of the case.’ [Citation.]” (Ibid.)
Substantial evidence showed defendant’s threat was immediate and specific to convey to Tran his gravity of purpose and an immediate prospect of execution of the threat. After Barragan arrived at the residence, Tran told him that after defendant had been drinking “all night” and screaming at her, she locked herself in the children’s bedroom. Tran’s statement that defendant had been drinking was corroborated by Barragan’s observations that defendant’s breath smelled of alcohol, defendant had red and watery eyes, and he slurred his speech. Barragan saw 10 to 12 beer bottles on a table or the floor in the hallway.
Tran told Barragan that defendant kicked open the locked door, and said to Tran he “was going to kill her, ” and that he was going to shoot her in the head. C.H. and B.H. independently told Barragan that defendant threatened to shoot Tran in the head after he kicked down the bedroom door. Under those circumstances, a reasonable juror could conclude defendant’s threats to kill Tran made immediately after he kicked down the locked bedroom door were sufficiently immediate to satisfy the statute. The threats were certainly specific in conveying defendant’s intent to kill Tran.
Under those circumstances, it was reasonable for Tran to be in sustained fear after defendant kicked open the locked bedroom door, appeared angry, and threatened to kill her. The reasonableness of her fear is further supported by C.H.’s statements to Barragan that she too was very scared after defendant kicked down the door and that she believed that if she had not contacted the police, defendant would have killed Tran “and everybody else inside the house.”
As for evidence Tran had actually experienced sustained fear, Barragan testified that when he encountered Tran inside the children’s bedroom, she was “crying uncontrollably” and pacing back and forth; she appeared relieved Barragan was there. He tried to calm her down as he spoke to her, but she continued to cry uncontrollably and repeatedly stated, “he’s going to kill me” and “I’m scared.” Tran told Barragan that defendant was capable of killing her and she believed that because of his criminal history. She also told him that defendant had physically hurt her in the past and within 30 days of that morning, he had “lost it” and punched her two times in the face. She knew defendant was on parole for committing an assault with a deadly weapon.
Defendant argues insufficient evidence supports his conviction because at trial, Tran, C.H., and B.H. testified he did not threaten Tran and denied stating otherwise to Barragan. “In deciding the sufficiency of the evidence, a reviewing court resolves neither credibility issues nor evidentiary conflicts. [Citation.] Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact.” (People v. Young (2005) 34 Cal.4th 1149, 1181.) “[U]nless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction.” (Ibid.; see People v. Boyer (2006) 38 Cal.4th 412, 480 [“a testifying witness’s out of court identification is probative for that purpose and can, by itself, be sufficient evidence of the defendant’s guilt even if the witness does not confirm it in court”].)
Here, the jury reasonably believed Barragan’s testimony as to what Tran, C.H., and B.H. had told him about defendant’s conduct on March 3, 2008; his testimony as to those statements was neither physically impossible nor inherently improbable. The prosecution offered evidence that Tran, C.H., and B.H. had a motive to falsely recant their statements. Evidence showed defendant had already threatened Tran that, if he went to jail, he would kill her upon his release, and that she believed he was capable of carrying out his threat. Also, Tran testified at trial she continued to depend financially on defendant.
Furthermore, the jury reasonably could have disbelieved as incredible, and thus rejected, Tran’s, C.H.’s and B.H.’s inconsistent and sometimes confusing testimony describing the events leading up to Barragan’s arrival at their house. For example, Tran initially testified defendant was angry because she had returned home from a party between 2:00 a.m. and 3:00 a.m. (the 911 call was placed at 3:19 a.m.). Tran later testified that she had returned home late after taking her children to play games at a casino. She explained that she and her children first attended the birthday party and then went to a casino. C.H. testified that she, along with her siblings and Tran, went straight home after attending a birthday party and she did not remember going to a casino. B.H. initially testified that she, along with her siblings and Tran, went to a birthday party for a few hours before going home. Later, she testified that after she left the birthday party, she and Tran went to a casino; she was not sure whether her two youngest siblings or C.H. went with them.
Substantial evidence supports defendant’s conviction. We find no error.
II.
The Trial Court Did Not Abuse Its Discretion by Admitting Evidence of Defendant’s Prior Acts of Domestic Violence Under Evidence Code Section 1109.
Defendant contends the trial court erred by admitting, under Evidence Code section 1109, his prior incidents of domestic violence that occurred in 1998. For the reasons discussed post, we disagree.
Evidence Code section 1109, subdivision (a)(1) provides: “Except as provided in subdivision (e) or (f), in a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant’s commission of other domestic violence is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352.” Under Evidence Code section 352, evidence that is otherwise admissible may be excluded if its probative value is substantially outweighed by its prejudicial effect. “‘The “prejudice” referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against defendant as an individual and which has very little effect on the issues. In applying section 352, “prejudicial” is not synonymous with “damaging.”’ [Citation.]” (People v. Bolin (1998) 18 Cal.4th 297, 320; see People v. Morton (2008) 159 Cal.App.4th 239, 245 246 [evidence of other incidents of domestic violence that occurred within prior 10 years is admissible unless it is deemed more prejudicial than probative under Evidence Code section 352].)
Evidence Code section 1109, subdivision (e) states: “Evidence of acts occurring more than 10 years before the charged offense is inadmissible under this section, unless the court determines that the admission of this evidence is in the interest of justice.” Evidence Code section 1109, subdivision (f) states: “Evidence of the findings and determinations of administrative agencies regulating the conduct of health facilities licensed under Section 1250 of the Health and Safety Code is inadmissible under this section.”
We review the trial court’s admission of evidence of prior acts of domestic violence for an abuse of discretion (People v. Poplar (1999) 70 Cal.App.4th 1129, 1138; see also People v. Marshall (1996) 13 Cal.4th 799, 838 [trial court’s decision to admit or exclude evidence under Evidence Code section 352 is reviewed for abuse of discretion].)
Before trial, the court granted the prosecution’s motion to admit evidence of defendant’s prior domestic violence offenses. During trial, the jury was presented the parties’ stipulation establishing defendant’s 1999 conviction following the entry of his guilty plea to charges of inflicting corporal injury on a spouse or cohabitant, assault by means of force likely to produce great bodily injury, and making criminal threats, all occurring in 1998 (the 1998 offenses). In addition, the trial court permitted Vo to testify about the circumstances of one of the 1998 offenses, but he testified he could not remember what occurred. An investigator for the prosecution testified that two weeks before trial, Vo told him that in August 1998, defendant got drunk and Vo took a meat cleaver away from defendant.
Defendant contends evidence of the 1998 offenses was not probative because the offenses occurred almost 10 years ago. Evidence that defendant had previously threatened and assaulted his spouse or cohabitant in 1998 is certainly probative to show his propensity to commit acts of domestic violence, as permitted under Evidence Code section 1109. Evidence in the form of Tran’s statement to Barragan that defendant had physically harmed her before the charged offense, and only 30 days before the charged offense, had punched her twice in the face, shows defendant’s continuing propensity to commit acts of domestic violence.
Defendant does not challenge on appeal the admission of evidence showing his prior acts of domestic violence against Tran.
In People v. Morton, supra, 159 Cal.App.4th at pages 247 248, a panel of this court held that evidence of an uncharged offense of domestic violence occurring more than nine years before the charged crime was admissible under Evidence Code section 1109. In that case, the court stated: “[T]he Legislature decreed in Evidence Code section 1109 that such incidents are generally admissible if they occurred within the prior 10 years, and this one did. Given that general rule, the onus is on [the defendant] to explain why this prior incident would be less reliable, or less probative, than others of similar vintage. Absent that, [the defendant]’s argument amounts to a contention that because the incident is close to the 10 year limitation, we should treat it as though it were past that limit. We cannot.” (People v. Morton, supra, at p. 248, fn. omitted.)
We therefore turn to the question whether the probative value of such evidence is substantially outweighed by its prejudicial effect. Unlike People v. Morton, supra, 159 Cal.App.4th 239, in which a prior uncharged act of domestic violence was admitted into evidence, the jury was informed that defendant was charged with the 1998 offenses to which he pleaded guilty. Thus, the admission of the evidence of the 1998 offenses did not pose the same risk of confusing the issues or tempting the jury to punish defendant for past wrongs because he had already been convicted for them. The presentation of evidence of the 1998 offenses (including the stipulation) was very brief, consuming about 17 pages of the reporter’s transcript. As the jury had been informed that one of the 1998 offenses included the offense of assault by means of force likely to produce great bodily injury, the prosecution investigator’s brief testimony stating that Vo told him that in August 1998, he took a meat cleaver away from defendant was not unduly prejudicial. The jury was otherwise not provided details, much less potentially inflammatory information, regarding the circumstances surrounding the 1998 offenses.
We cannot conclude on this record the trial court abused its discretion in admitting evidence of the 1998 offenses.
III.
The Trial Court Did Not Abuse Its Discretion by Denying Defendant’s Request to Dismiss the Prior Strike Convictions for Purposes of Sentencing.
Defendant contends the trial court abused its discretion by denying his request to dismiss the prior strike convictions for sentencing purposes. As we will explain, the trial court did not abuse its discretion.
A trial court has authority on its motion to strike a prior conviction in furtherance of justice under section 1385. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 531.) In deciding whether to strike a prior conviction, and in reviewing a trial court’s ruling, the appellate 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 law]’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.) The express purpose of the Three Strikes law is “to ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of serious and/or violent felony offenses.” (§ 667, subd. (b).) “[L]onger sentences for career criminals who commit at least one serious or violent felony certainly goes to the heart of the statute’s purpose-or spirit.” (People v. Strong (2001) 87 Cal.App.4th 328, 338.)
A trial court’s refusal to strike a prior conviction is reviewed for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 376; People v. Superior Court (Romero), supra, 13 Cal.4th at p. 530, fn. 13.) “[A] trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.” (People v. Carmony, supra, at p. 377.) As the party challenging the sentence, defendant has the burden “‘“to clearly show that the sentencing decision was irrational or arbitrary.”’” (Id. at p. 376.)
Here, the trial court denied defendant’s request that the court strike the prior strike convictions for purposes of sentencing because of the seriousness of the charged offense combined with defendant’s extensive criminal background. As discussed in detail ante, substantial evidence established defendant’s conduct in threatening Tran’s life was very serious. Furthermore, the probation report revealed defendant’s extensive criminal history which included the following: In March 1999, he pleaded guilty to two counts of assault with a deadly weapon or by means of force likely to cause great bodily injury, one count of false imprisonment, one count of making terrorist threats, and two counts of inflicting corporal injury on a spouse or cohabitant. In August 2000, defendant was convicted of assault with a deadly weapon or by means of force likely to cause great bodily injury and making criminal threats for which he was sentenced to two years in state prison. On July 21, 2005, defendant was convicted of possessing a controlled substance (cocaine) in violation of Health and Safety Code section 11350, subdivision (a). Defendant was on parole at the time he committed the charged offense on March 3, 2008. We cannot conclude on this record that the trial court’s refusal to strike the prior strike convictions was “‘“irrational or arbitrary.”’” (People v. Carmony, supra, 33 Cal.4th at p. 376.)
Defendant contends the trial court abused its discretion by denying his request in light of the fact most of the strike offenses occurred in a case that was almost 10 years old. Ten year old prior strike convictions are not too remote for purposes of the Three Strikes law. (See People v. Philpot (2004) 122 Cal.App.4th 893, 905 907 [priors committed within 20 years not too remote]).
Defendant also contends the trial court abused its discretion in denying his request because the probation report was riddled with many irregularities and inaccuracies. The record shows, however, the trial court encouraged defendant’s trial counsel to raise each and every objection and correction request he had to the probation report. The court struck certain portions of the probation report that were factually inaccurate. In the opening brief, defendant describes the trial court as “meticulous” in reviewing the probation report. The record does not show the court denied defendant’s request to strike the prior strike convictions based on any irregularity or inaccuracy contained in the probation report.
Finally, defendant contends the trial court abused its discretion in denying his request because his 35 year to life sentence was “out of all proportion to the crime, ” particularly in light of his apparent substance abuse and possible mental health problems. Defendant cites the following statement by the trial court at the hearing on defendant’s request to strike the prior strike convictions: “I don’t see that he’s done anything to put himself within the meaning of [section] 1385, but my gut is, right off the top, that, you know what, if I was sentencing in the blind, 35 to life is probably more time than I would have given him for this offense and these circumstances. But if I can’t find any Romero [People v. Superior Court (Romero), supra, 13 Cal.4th 497] factors, I don’t think I can disregard the Three Strikes law.”
Defendant does not contend the trial court failed to consider all relevant factors in evaluating defendant’s request; instead, he disputes the conclusion the trial court reached after considering those factors. The trial court’s opinion that the application of the Three Strikes law resulted in a longer sentence than the court would have imposed does not establish a disproportionate sentence. (See People v. Strong, supra, 87 Cal.App.4th at p. 337 [“[T]he Three Strikes law does not offer a discretionary sentencing choice, as do other sentencing laws, but establishes a sentencing requirement to be applied in every case where the defendant has at least one qualifying strike”], italics added.)
Defendant’s record placed him squarely within the purpose of the Three Strikes law. We find no abuse of discretion.
DISPOSITION
The judgment is affirmed.
WE CONCUR: MOORE, ACTING P. J., IKOLA, J.