Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. 0712448
Pollak, J.
Defendant Nathan Williams appeals a conviction of first degree burglary and, as a multiple offender, a resulting sentence of 35 years to life in prison. He raises five issues on appeal. He attacks his conviction on the grounds that the trial court abused its discretion by admitting testimony of two prior convictions for burglary and that the prosecutor twice engaged in misconduct during closing argument. He attacks his sentence on the grounds that the trial judge improperly denied his Romero motion to set aside prior convictions for the purpose of applying the three strikes statute, and that the sentence imposed amounts to cruel and unusual punishment. We find no merit in these contentions and shall affirm.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
FACTUAL AND PROCEDURAL HISTORY
Defendant was charged by information with two counts of first degree residential burglary (Pen. Code, §§ 459, 460). The information alleged that the offenses were violent felonies (§ 667.5, subd. (c)(21)) and that defendant had suffered three serious prior felony convictions (§§ 667, subds. (b)-(i), 667, subd. (a)), two of which were for first degree burglary, and two prior prison terms (§ 667.5, subd. (b).) A jury returned a guilty verdict on one of the burglary counts but did not agree on the other. Defendant waived a jury with respect to the enhancement allegations and the court found them true and subsequently denied defendant’s Romero motion to strike his prior convictions for purposes of three-strike sentencing. Defendant was sentenced to a base term of 25 years to life for the charged burglary, plus two consecutive five-year terms for each prior burglary, for an aggregate term of 35 years to life.
All statutory references are to the Penal Code unless otherwise noted.
The following evidence was presented at trial. Hector Hinojosa testified that at 9:00 p.m. on December 20, 2006, he was upstairs in his home in Pittsburg, California. He heard a noise downstairs and his wife saw the security alarm lights in the home activate. Hinojosa went to investigate and saw a man inside the house running for the front door. He was able to see the back of the man’s head, his general body type, and the color and style of his clothes but was not able to see the man’s face or skin color. The man escaped through the front door and Hinojosa lost sight of him. He called the police and approximately one and a half hours later at a field lineup identified defendant as the intruder.
Salvador Campos testified that at 10:00 p.m. that same evening he was in his Pittsburg home when he heard a gate in his fence open. Shortly afterwards he heard the side door of his garage open. When Campos went to the garage and turned on the lights, defendant was sitting in the driver’s seat of his truck, searching the cabin. Defendant jumped out of the truck and ran out the side door of the garage. Campos lost sight of defendant and drove around the neighborhood looking for him. He eventually came across a police officer who was detaining defendant, and identified defendant as the intruder in his garage.
Officer Philip Galer responded to Hinojosa’s home in his patrol car shortly after 9:00 p.m. At about 10:15 p.m., while still in Hinojosa’s neighborhood, he saw defendant walking in the street. Defendant appeared to Galer to be intoxicated but not substantially impaired. Officer Ryan Wilkie arrived on the scene and pat-searched defendant. Wilkie found no tools, weapons, or victims’ property. While the officers were detaining defendant, Campos drove up and told them that he had earlier found defendant in his garage. Hinojosa also arrived on foot and in a field lineup identified defendant as having been the person he had seen in his home. Wilkie also testified, confirming much of Galer’s testimony. He had noticed an odor of alcohol on defendant, but no other signs of intoxication.
Over defendant’s objections, the prosecutor presented evidence concerning two prior burglaries for which defendant had previously been convicted. Gail Glass testified that on September 12, 2001, at 2:00 a.m., she was awakened by her dog barking. She went into her kitchen and saw that her back door was open and that her purse was missing. She also saw that her car was missing from its parking spot in front of her house. Cathy Seithel testified that on September 8, 2001, at 2:30 a.m., she returned home and discovered the side door to her garage door open and her truck missing. A backpack, wallet, and some guitar equipment were also missing from inside the home. The parties stipulated that defendant had pled no contest to charges of burglary at the Glass and Seithel homes.
Defendant did not testify but the defense called Officer Eric Severe who testified that on December 20, 2006, he responded to Hinojosa’s house as investigating officer. Severe took a description of the intruder from Hinojosa and inspected the residence. He found no signs of forced entry, and could not tell whether anything in the house had been disturbed. Severe searched defendant that evening at the police station and found no property of either victim, no tools, and no alcohol.
The jury found defendant guilty of burglary at the Campos home but was hung and later dismissed with respect to the Hinojosa burglary. Defendant has timely appealed from the judgment imposing the 35-year-to-life sentence.
DISCUSSION
Admissibility of Evidence of Prior Crimes
Burglary is defined as the entry into a house, among other types of property, “with intent to commit grand or petit larceny or any felony.” (§ 459.) Defendant’s defense was that he was intoxicated and did not enter with the intent to steal. For the limited purpose of showing defendant’s intent in entering the Hinojosa and Campos homes, and over defendant’s objection, the court admitted the Glass and Seifel testimony concerning the burglaries in their homes. Defendant contends the prior burglaries were too dissimilar to those for which he was being tried to be probative of his intent in the charged offenses. He points out that in the prior burglaries he stole property, but that there was no evidence that he did so in the charged offenses, and that he was intoxicated during the charged offenses but not during his prior crimes.
While character evidence is generally inadmissible to prove conduct on a later occasion (Evid. Code, § 1101, subd. (a)), evidence that a person previously committed a crime is admissible when relevant to prove certain facts, such as intent. (Evid. Code, § 1101, subd. (b).) “The least degree of similarity... is required in order to prove intent [Citation.] ‘[T]he recurrence of a similar result... tends (increasingly with each instance) to negative accident or inadvertence or self-defense or good faith or other innocent mental state and tends to establish (... though not with certainly) the presence of... criminal intent....’ [Citation.] In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant ‘ “probably harbor[ed] the same intent in each instance.” ’ ” (People v. Ewoldt (1994) 7 Cal.4th 380, 402.)
In both of the charged offenses and in each of the two prior burglaries defendant snuck in the back or side door of a victim’s house late at night. In each of the prior burglaries he stole a car, and when found in the Campos home he was in Campos’s truck. These similarities are sufficient to support a reasonable inference that when entering the Hinojosa and Campos homes defendant intended to steal. (People v. Nible (1988) 200 Cal.App.3d 838, 848-849.)
Defendant’s intoxication during the charged offenses tends to support, rather than undermine, the admissibility of the prior crimes evidence. In Nible, Nible was convicted of burglary after unsuccessfully attempting to enter the victim’s house. (People v. Nible, supra, 200 Cal.App.3d at p. 846). At trial, he presented evidence that he was heavily intoxicated during the attempted break-in. (Ibid.) Although Nible conceded at the close of the evidentiary stage of the trial that intent was not an issue, the Court of Appeal upheld the admission of evidence concerning his prior crimes. (Id. at p. 851.) The court observed that the evidence of intoxication was relevant to the issue of intent and that “[i]n the absence of further evidence on the issue, defendant would have had a persuasive, perhaps compelling, argument that his intent was innocent.” (Id. at p. 848.)
Thus, there was no error in admitting the testimony concerning defendant’s prior crimes.
Because the parties agree that defendant sufficiently objected to the admission of the evidence concerning the prior burglaries, we do not consider defendant’s alternative contention that he was denied effective assistance of counsel if the objections were deemed insufficient to preserve his right to appeal.
Prosecutorial misconduct
Defendant contends that in closing argument the prosecutor committed misconduct in two respects. The questioned portion of the prosecutor’s closing argument was the following:
“In fact, there’s one specific instruction... that talks about rejecting unreasonable interpretations of the evidence. As jurors, you’re obligated to reject things that are unreasonable, and that’s when you look at the totality of the case. So when you look at this case, I ask you to look at it from, okay, I understand all the evidence of guilt. What am I going to have to believe to believe that the defendant is not guilty? Let me flip it around. Is not guilty reasonable? Because if not guilty is not reasonable and guilt is reasonable, you must vote for guilt. So let’s take a look at an interpretation of the evidence of the defendant, is not guilty reasonable? Let’s go over the things you have to disbelieve. In order to believe the defendant is not guilty, you’d have to believe that Mr. Hinojosa was wrong or mistaken about his identification. You’d have to believe that Mr. Campos is wrong or mistaken. [¶]... [¶]... You would have to believe that someone else committed this crime, someone else, and that as far as the issue of identity is concerned, you’d have to believe that there was another White male adult or Hispanic male adult, thin face, shaved head, with the same build as the defendant, same height as defendant, wearing the same jacket or similar. Mr. Campos testified he had a white shirt. This person would have to have a white shirt. That this person did so at the same time that the defendant was in the neighborhood. That this person avoided detection. And that – keep in mind in this case, you didn’t hear any evidence that there was residential burglaries that occurred in this neighborhood that night after the defendant was gone
“[Defense attorney:] Objection, Your Honor, Improper argument.
“[The court:] Sustained.
“[Defense attorney:] I’d ask the jury be admonished.
“[The court:] Jury should disregard the last comment made by [the prosecutor].
“[Prosecutor:] Basically, you have nine things, and that Mr. Campos’s and Mr. Hinojosa’s identifications are wrong or mistaken. All those things, essentially, there’s an identical twin almost out there with a camouflage jacket and white shirt and shaved head that was there committing residential burglaries at the same time as the defendant in the same clothing in the same neighborhood. Is that reasonable? Is that a reasonable interpretation of the evidence as far as identification is concerned? If it sounds unreasonable, you have to reject it. That’s what the law says. If that sounds a little silly, a little unreasonable, or just plain unreasonable, rather, you’re required to and obligated to reject that interpretation. If you do believe it, I’ve got a bridge to sell you.”
Defendant first contends that this argument improperly shifted the burden of proof to the defendant, indicating that he had the burden of proving his innocence. “When... the point focuses on comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.” (People v. Berryman (1993) 6 Cal.4th 1048, 1072, overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.) The prosecutor’s argument quoted above might be construed to suggest that it was defendant’s burden to prove his innocence, and certainly was misleading in suggesting that the jury must find defendant guilty if “guilt is reasonable.” Passing over the fact that no objection was made to the portion of the argument containing that suggestion, in the context of the prosecutor’s opening argument and full reply, and the court’s instructions, there is no likelihood that the jury was misled.
The prosecutor stated explicitly at another point in his argument that it was his burden to prove the offense beyond a reasonable doubt. In the statements quoted above he was responding to the defense attorney’s argument that if more than one reasonable inference can be drawn from the evidence, the jury must choose the inference establishing innocence. The obvious import of the prosecutor’s argument was not that defendant must prove his innocence, but that the inferences defendant argued should be drawn from the evidence were not reasonable. The court correctly instructed the jury about the prosecution’s burden of proof and its burden to prove each element of the crime. The court also instructed the jury not to regard the attorneys’ argument as evidence and to follow the law as given by the court if counsels’ arguments departed from its instructions. The instructions create a strong presumption that the jurors understood and properly applied the law. “ ‘[The court] presume[s] that jurors treat the court’s instructions as statements of law by a judge, and the prosecutor’s comments as words spoken by an advocate in an attempt to persuade.’ ” (People v. Mayfield (1993) 5 Cal.4th 142, 179.)
CALCRIM Nos. 103, 220, 1700.
CALCRIM Nos. 104, 200, 222.
Cases in which a prosecutor’s argument has been deemed to improperly shift the burden of proof have involved argument that unmistakably contradicted the legal standard. In People v. Gonzalez (1990) 51 Cal.3d 1179, 1214, the prosecutor told the jury, “ ‘The defense has to create a reasonable doubt.... The reasonable doubt has to be created by the defense. They have not created any reasonable doubt. Confusion, yes, but reasonable doubt, no.’ ” The court considered the statement to be ambiguous, but observed that the remark was “improper if meant to absolve the prosecution from its prima facie obligation to overcome reasonable doubt on all elements [of the crime].” (Id. at p. 1215.) Ultimately, the court held that the objection had been insufficiently preserved for appeal. (Ibid.)
People v. Hill, supra, 17 Cal.4th 800, considered even more egregious misstatements by the prosecutor. In a trial riddled with prosecutorial misconduct of many sorts, the prosecutor told the jury, “ ‘[T]he first thing I’m going to tell you isn’t true is [defendant’s] counsel stood before you... and told you that to find this defendant guilty I have to prove my case beyond a reasonable doubt; that whatever the bunk was, the narcotic was, or anything else in that truck was, I had to prove it beyond a reasonable doubt.... I could have had somebody come in here and analyze that. [¶]... [But] I don’t have to prove anything about that at all.’ ” (Id. at pp. 828-829, italics omitted.) Later in the same closing argument, the prosecutor stated, “[jurors’ doubt] must be reasonable. It’s not all possible doubt. Actually, very simply, it means, you know, you have to have a reason for this doubt. There has to be some evidence on which to base a doubt.” (Id. at p. 831, italics omitted.) The court concluded that this latter statement, although ambiguous and somewhat confusing, improperly shifted the burden to the defendant to establish a reasonable doubt. (Ibid.)
The prosecutor’s statements in this case quoted above reflect no such express contradiction of the appropriate legal standard, and any possible confusion was amply corrected by the court’s instructions. (People v. Claire (1992)2 Cal.4th 629, 663 [extending Supreme Court’s “reasonable likelihood of prejudice” test to statements by the prosecutor]; Estelle v. McGuire (1991) 502 U.S. 62.)
Defendant also contends that the prosecutor’s statement, “[K]eep in mind in this case, you didn’t hear any evidence that there [were] residential burglaries that occurred in this neighborhood that night after defendant was gone,” involved misconduct. Defendant objected immediately to this statement and the court sustained the objection and admonished the jury to disregard it. Defendant nonetheless asserts that the statement improperly advised the jury of facts that were not in evidence.
“ ‘What is crucial to a claim of prosecutorial misconduct is not the good faith vel non of the prosecutor, but the potential injury to the defendant.’ ” (People v. Coddington (2000) 23 Cal.4th 529, 599-600, overruled on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13, and in Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1107, fn. 4) Any potential for injury here was removed by the court’s action in sustaining the objection and admonishing the jury to disregard the statement. The statement did no more than point out the absence of evidence—it made no affirmative representation as to any facts—and in all events was not inflammatory. There is no reason to believe the court’s admonition did not cure any possibility that the jury would draw inferences from facts that were not in the record. (People v. Claire, supra, 2 Cal.4th at p. 663.)
Romero motion
Defendant challenges the court’s denial of his motion under Romero to strike his prior convictions, including the two prior burglaries, from consideration under the three strikes law. (§ 1170.12, subd. (c)(2).) In denying the motion, the court cited the potential for violence inherent in a burglary, defendant’s unsuccessful drug treatment program, his unsuccessful probation, disciplinary problems during his previous incarceration, and commission of the present charge approximately one month after being granted parole for a prior offense. The court considered defendant’s young age and difficult childhood as mitigating factors, but ultimately concluded that defendant “is not learning anything from his prior experiences with the justice system and... he is a serious threat to public safety.”
In arguing that the court abused its discretion in denying the motion, defendant relies on People v. Carmony (2005) 127 Cal.App.4th 1066, which is readily distinguishable. Carmony’s third strike was failing to register his residential address within five working days of his birthday, as required of a sex offender. (Id. at p. 1071.) He had registered one month prior to his birthday, and his address had not subsequently changed. (Ibid.) His parole officer knew his correct address at all times. (Ibid.) The court characterized Carmony’s felony as “the most technical and harmless violation of the registration law we have seen” (id. atp. 1078) and noted that “ ‘neither the Legislature nor the voters intended the Three Strikes law to be used as a nuisance statute to rid society forever of persons who fail to meet the technical requirements to confirm an accurate registration’ ” (id. at p. 1089). The court also regarded Carmony’s prior criminal record as relatively mild, his most recent prior felonies having occurred five years in the past and his only sexual offense having occurred some 15 years previous. (Id. at pp. 1080-1081.) Defendant’s circumstances can hardly be compared to those of Carmony. The danger to others inherent in defendant’s current offense, defendant’s multiple and recent prior offenses, and his failure to rehabilitate bring him well within the spirit and intent of the three strikes law, fully justifying the court’s denial of his Romero motion. (People v. Williams (1998) 17 Cal.4th 148, 161.)
Cruel and unusual punishment
Defendant also contends that his sentence constitutes cruel and unusual punishment in violation of the United States Constitution (U.S. Const., 6th Amend.) and the California Constitution (Cal. Const., art. I, § 17). Under In re Lynch (1972) 8 Cal.3d 410, 425-427 (Lynch), a punishment is cruel and unusual if it is “grossly disproportionate” to the nature of the crime or the perpetrator, if it is out of proportion to punishments for other crimes in the same jurisdiction, or if it is out of proportion to punishments for the same crime in other jurisdictions. Punishment may be unconstitutionally cruel and unusual “if, although not cruel or unusual in its method, it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.” (Id. at p. 424.) “A defendant has a considerable burden to overcome when he challenges a penalty as cruel or unusual.” (People v. Bestelmeyer (1985) 166 Cal.App.3d 520, 529.)
Citing Lynch, defendant argues that his sentence is impermissibly disproportionate to his personal circumstances and the nature of his offense.However, defendant’s indeterminate life sentence for the crimes he has committed is not out of proportion with the sentences that California courts have imposed and upheld for other crimes and criminals similar to what is established in this record.
In People v. Ingram (1995) 40 Cal.App.4th 1397, 1417, overruled on other grounds in People v. Dotson (1997) 16 Cal.4th 547, 560, footnote 8, a sentence of 61 years to life for burglary was held not to be cruel and unusual punishment. The court rejected the defendant’s arguments that his sentence failed the first Lynch test because his conduct during the break-in was substantially nonviolent, he suffered from substance abuse, he was 30 years old, and his criminal history consisted only of nonviolent crimes. (Id. at pp. 1414-1415.) In People v. Goodwin (1997) 59 Cal.App.4th 1084, 1086, the defendant was convicted of commercial burglary and given a third-strike sentence of 25 years to life after shoplifting a pair of pants from a retail store. The defendant argued that the long period of time between his present and prior felony convictions, the limited magnitude of the crime, and his family’s difficult financial situation rendered the sentence excessive. (Id. at pp. 1093-1094.) The court upheld the sentence in the face of a constitutional challenge. (Id. at p. 1094.) Similarly, defendant’s current offense is not so innocuous, nor his prior offenses so remote, to make the sentence so grossly disproportionate that it “shocks the conscience.”
Defendant claims his sentence violates the second Lynch test because, under the three strikes law, he has been given the same sentence as third-strike offenders of much more serious crimes. However, life sentences for disparate crimes under the three strikes scheme do not violate constitutional restrictions because the statute uniformly punishes recidivist offenders. (People v. Kilborn (1996) 41 Cal.App.4th 1325, 1331; People v. Edwards (2002) 97 Cal.App.4th 161, 165-166 [Legislature is entitled to set penalties consistent with a policy of deterrence, especially against future crimes by recidivist criminals].) Defendant’s indeterminate sentence is not substantially different from that of other third-strike recidivist offenders and does not violate the second Lynch test.
Disposition
The judgment is affirmed.
We concur: McGuiness, P. J., Jenkins, J.