Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCD298339, William H. Kronberger, Jr., Judge.
AARON, J.
I.
INTRODUCTION
Mario Willis appeals from a judgment of conviction and sentence after a jury convicted him of possession of a firearm by a felon, possession of a deadly weapon, and illegal possession of ammunition. The charges stemmed from an incident in which Willis retrieved a shotgun during a heated argument with his wife.
On appeal, Willis contends that (1) the trial court abused its discretion in admitting evidence of two of his prior acts of domestic violence; (2) his trial counsel was ineffective because he failed to offer Willis's uncle's testimony; (3) the prosecutor committed misconduct during closing argument and defense counsel was ineffective for failing to object; and (4) his sentence of 25 years to life is disproportionate to his offense, and therefore constitutes cruel and/or unusual punishment under either the United States Constitution or the California Constitution. We conclude that Willis's arguments are without merit. We therefore affirm the trial court's judgment of conviction and sentence.
The Eighth Amendment to the United States Constitution prohibits imposition of "cruel and unusual punishment." (Italics added.) Section 17 of article I of the California Constitution prohibits imposition of "[c]ruel or unusual punishment." (Italics added.) For the sake of simplicity, when we discuss the United States and California Constitutions' prohibitions together, we will refer to the prohibited acts as "cruel or unusual punishment."
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Factual background
1. The prosecution's case
On August 10, 2007, Willis and his wife of approximately nine years, Christine Rhodes, were living with their two sons and Rhodes's two sons from a prior relationship. That day, Willis and Rhodes got into an argument after Willis refused to move his car so that Rhodes's son, J., could get his bicycle out of the garage. The two were yelling at each other as they walked through the house. Rhodes eventually followed Willis into their bedroom. Rhodes closed the door to the room because she heard the children coming into the house. While Rhodes and Willis continued to argue, Willis went to the closet and took out a pillowcase, from which he removed a shotgun. When Rhodes asked Willis what he was going to do with the gun, he said, "I'm going to use it." Willis then held the gun up and cocked, or "racked," it.
Rhodes did not know whether the gun was loaded. Out of concern for her children's safety, she held the door to the bedroom closed to prevent them from coming into the room.
J. had heard Willis and Rhodes fighting throughout the house, and heard them go into their bedroom. After they went into the bedroom, J. heard screaming and the sound of the shotgun being racked. J. ran to the bedroom door with a dagger, and, with the help of his younger brothers, attempted to gain entry into the room.
Rhodes had a cellular telephone in her hand, but dropped it while she was trying to keep her children from entering the room. At some point, Rhodes opened the door slightly so that she could slide the telephone to J. and told J. to call the police, which he did. J. saw Willis through the partially opened door, holding the shotgun.
Willis eventually put the shotgun down on a chair in the living room. After he put down the gun, Rhodes covered it with a pillow.
When police officers arrived at the scene, Rhodes showed them the shotgun. The butt of the gun had been removed and the barrel had been sawed off. The officers arrested Willis.
The following day, police officers searched the home and garage looking for weapons. They found no additional weapons, but did find two boxes of.32-caliber ammunition inside the master bedroom closet. A criminalist testified that the shotgun had a 14-inch barrel, and that it was commonly referred to as a "short-barreled" shotgun. The weapon was capable of firing.
J. testified that Willis had shown J. the shotgun on one occasion before the day of the incident. On the prior occasion, the gun had been "hanging on the ceiling" of the garage. Rhodes testified that she had seen the shotgun in the garage approximately two weeks prior to the incident. She said that she had "come upon it" in the garage and asked Willis, "'What are you doing with this?'" He responded, "'To protect my family.'"
Police had previously responded to two other reports of domestic violence involving Willis and Rhodes. In 1999, a neighbor called police after hearing thumping and yelling as Willis and Rhodes were arguing. A police officer witnessed Willis throw Rhodes to the ground, and saw Rhodes's head hit the floor "pretty violently." In 2005, Willis was arrested after he threw a metal tool or bar at a vehicle that Rhodes was driving, and in which one of Rhodes's sons was a passenger. The impact of the metal object made a hole in the vehicle's door.
2. Willis's defense
Willis recalled Rhodes to the stand. She admitted that she had taken the boys to see Willis a few times at his aunt and uncle's house after his arrest. She did not recall talking with Willis's aunt about Willis on any of those occasions.
Because Willis's aunt had been admitted to the hospital and could not testify at trial, the court convened a conditional examination of her at Sharp Memorial Hospital. The trial court later admitted portions of the aunt's testimony to which no objections had been raised or sustained. The redacted transcript of Willis's aunt's testimony, which included the aunt's statement that Rhodes had told Willis's aunt that she had been angry with Willis and that she "just wanted him out of the way," was read to the jury.
B. Procedural background
A second amended consolidated information filed on April 7, 2008, charged Willis with attempted criminal threats (Pen. Code, §§ 664/422 (count 1)); possession of a firearm by a felon (§ 12021, subd. (a) (1) (count 2)); possession of a deadly weapon (§ 12020, subd. (a)(1) (count 3)); and illegal possession of ammunition (§ 12316, subd. (b)(1) (count 4)). The information also alleged that Willis had suffered multiple prior serious felony convictions (§§ 667, subd. (a)(1), 668, and 1192.7, subd. (c)) and eight prior strike convictions (§§ 667, subd. (b) – (i), 1170.12, and 668).
Further statutory references are to the Penal Code unless otherwise indicated.
The jury found Willis guilty on counts 2, 3, and 4, but could not reach a verdict on count 1. The court dismissed that charge. Willis admitted the truth of the prior serious felony and prior strike allegations.
At the sentencing hearing on June 23, 2008, the trial court denied Willis's motions to reduce his prior convictions to misdemeanors and/or to strike his prior strike convictions. The court sentenced Willis to 25-years-to-life on count 2. The court imposed the same sentence on count 3, but stayed imposition of that sentence pursuant to section 654. The court imposed the same sentence on count 4, and ordered that it be served concurrently with the sentence on count 2.
On August 8, 2009, Willis filed a timely notice of appeal.
Willis was acting in pro. per. when he filed his August 8 notice of appeal. Willis's attorney filed a separate notice of appeal on August 13, 2008.
III.
DISCUSSION
A. Evidence of prior acts of domestic violence under Evidence Code section 1109
Willis contends that the trial court admitted evidence of the prior domestic violence incidents under Evidence Code section 1109 without considering its potential prejudice. Willis bases this claim on the following statement that the trial court made during discussions concerning the admissibility of the evidence: "[E]xclusion [of the prior acts evidence] because it's prejudicial is not the basis of a proper ruling." According to Willis, this statement suggests that the trial court failed to properly consider the potential prejudice of the evidence of his prior acts of domestic violence pursuant to Evidence Code section 352 before allowing the prosecutor to elicit testimony regarding those acts.
Evidence Code section 1109 provides in relevant part: "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." (Evid. Code, § 1109, subd. (a)(1).)
A review of the record discloses that the trial court did, in fact, consider the potential prejudice to Willis from admitting the prior acts evidence, and that the court weighed the potential prejudice against the probative value of the evidence, as required under Evidence Code section 352. The court stated:
"I've also considered the prejudicial effect. Although the Legislature has said that it's going to be prejudicial and comes in, I think the court still needs to look at it because it could be too prejudicial and, again, 352 says whether or not the probative value is substantial[ly], underline that word, outweighed by undue prejudice, I don't think it is. I also don't believe it would mislead the jury particularly. It's a minor diversion in this case, and I don't think that it will take an undue consumption of time. So I'm appreciative of your thoughts, but I felt compelled to rule for the admissibility."
The court also considered how long ago the prior incidents occurred, and the similarity of the incidents to the charged conduct, as well as the possibility that the jury might use the evidence of the prior acts as a reason to punish Willis in this case:
"I'm looking at and making my decision is [sic] the age of these incidents, how far in time past have they been, and considering the similarity in the sense that are they issues that did, indeed, involve incidents of abuse between a husband and wife. [¶] Also considering the one question that I had some concern with, inasmuch as there's a possibility sometimes that a jury can look at these offenses and say, well, he wasn't punished by being found guilty, so we're just going to get him here this time. I have to think about that possibility and propensity of the jury to do that. That's one of the factors laid out in the case law. I don't think that's the problem in this case."
In his reply brief, Willis contends that in view of the trial court's statement about which he complains, it remains unclear "whether the court correctly balanced factors [regarding prejudice] in admitting the disputed evidence." We disagree. The trial court clearly weighed the potential prejudice of the evidence of prior domestic violence against its probative value in ruling on the admissibility of that evidence. Willis's argument on this point is without merit.
B. Trial counsel's failure to call Willis's uncle to testify does not constitute ineffective assistance of counsel
At an Evidence Code section 402 hearing prior to Willis's presentation of evidence, Willis's uncle testified that after the incident, Rhodes had visited Willis at his aunt and uncle's home. According to the uncle, Rhodes indicated that she "didn't want Mario around." The uncle also testified that "there was one occasion where she [i.e., Rhodes] spoke of she had took a gun in the house [sic]."
The trial court admitted Willis's aunt's testimony, but made no ruling with respect to his uncle's testimony. On appeal, Willis asserts that the court presumably made no ruling with respect to the uncle's testimony because trial counsel did not move to admit the uncle's testimony. According to Willis, although his aunt testified to the effect that Willis's wife "just wanted [Willis] out of the way," the uncle's testimony went further by demonstrating that Willis's wife was the one who brought the firearm into the residence. Willis contends that his trial counsel provided ineffective assistance by failing to offer the testimony of Willis's uncle in support of his defense that Rhodes had effectively set him up by bringing the gun into the house.
Prior to recalling Rhodes to the stand, defense counsel did seek to elicit from Willis's uncle "only the portion [of the uncle's testimony] where he says that [Rhodes] wanted to get rid of Mario – no, wanted him out of the way, I believe w[ere] his words, wanted him out of the way. And that's all." The trial court said, "Well, perhaps we could withhold ruling then until we find out what [Rhodes] has to say and how it fits, if it fits. [¶]... [¶]... So the 402 testimony did not jive exactly with what we thought we might be getting, so [it is a ] little hard to gauge where the statement she didn't want him around, falls into play. So let's get on with business and find out." Defense counsel apparently did not seek to elicit the portion of the uncle's testimony to the effect that Rhodes was the one who brought the gun into the house.
To establish ineffective assistance of counsel, a defendant must show that (i) counsel's performance was so deficient that it fell below an objective standard of reasonableness; and (ii) the deficient performance was prejudicial, rendering the results of the trial unreliable or fundamentally unfair. (Strickland v. Washington (1984) 466 U.S. 668, 688, 692.) To satisfy the prejudice requirement, a defendant "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the results of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Id. at p. 694.)
Appellate courts "'"defer to counsel's reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a 'strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'" [Citation.] "[W]e accord great deference to counsel's tactical decisions" [citation], and we have explained that "courts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight" [citation]. "Tactical errors are generally not deemed reversible, and counsel's decisionmaking must be evaluated in the context of the available facts." [Citation.]' [Citation.]" (People v. Stanley (2006) 39 Cal.4th 913, 954.)
Decisions as to whether to call witnesses are matters of trial tactics and strategy, and appellate courts generally do not second-guess trial counsel's decisions in this regard. (People v. Bolin (1998) 18 Cal.4th 297, 334; People v. Mitcham (1992) 1 Cal.4th 1027, 1059.) Although the record is silent as to trial counsel's reason for not seeking to present Willis's uncle's testimony, it is possible that defense counsel was not satisfied with the uncle's performance during the Evidence Code section 402 hearing and did not believe that calling Willis's uncle to testify would benefit Willis. We cannot conclude that there is no satisfactory explanation for defense counsel's action.
Even if we were tempted to second-guess defense counsel's decision not to call Willis's uncle to testify, Willis has made no showing that there is a reasonable probability that, but for his trial counsel's failure to call Willis's uncle to testify, the results of the trial would have been different. Such prejudice would be difficult, if not impossible, to demonstrate, since the evidence that Willis complains the jury never heard as a result of defense counsel's failure to call Willis's uncle as a witness was irrelevant to the question whether Willis possessed the gun. A defendant may be found to be in possession of a gun regardless of who originally brought the gun into the defendant's home. In other words, even if it were true that Rhodes originally brought the gun into the house, that fact is irrelevant to the determination of whether Willis had possession of the gun.
To the extent that Willis is arguing that his uncle's testimony would have placed Rhodes's credibility in question, Rhodes was not the only witness who testified as to Willis's offenses. Rhodes's son, J., testified that Willis had shown him the gun on one occasion before the incident that led to Willis's arrest. J. also testified that he saw Willis holding the gun while Willis and Rhodes were fighting in their bedroom on the day of Willis's arrest. Under these circumstances, there is no reasonable probability that the jury would have reached a different result if Willis's trial counsel had called Willis's uncle to testify that Rhodes had told him that she, not Willis, brought the gun into the house.
C. There was noprosecutorial misconduct, and therefore no ineffective assistance of counsel, with respect to the prosecutor's closing argument on the issue of possession
Willis contends that the prosecutor misstated the law to the jury. Specifically, Willis complains that the prosecutor "asserted that even if the jury found that appellant did not exercise personal dominion and control over the firearm, he was still guilty 'because [the firearm] was in the house.'" Willis asserts that this is an inaccurate statement of the law because the law requires that in order to be found to have been in possession of an object, the defendant must have had both knowledge of the object's presence and control of or dominion over the object. Willis further contends that his defense attorney provided ineffective assistance in failing to object to the prosecutor's statement and/or to seek a curative admonishment.
Because Willis presents this argument in the context of a claim of ineffective assistance of counsel, we will address the merits of the argument on appeal, despite the fact that he failed to object at trial to the claimed misconduct or to request that the jury be admonished to disregard it.
"'A prosecutor who uses deceptive or reprehensible methods to persuade the jury commits misconduct, and such actions require reversal under the federal Constitution when they infect the trial with such "'unfairness as to make the resulting conviction a denial of due process.'" [Citations.] Under state law, a prosecutor who uses deceptive or reprehensible methods commits misconduct even when those actions do not result in a fundamentally unfair trial.' [Citations.]" (People v. Lopez (2008) 42 Cal.4th 960, 965.)
"'[W]hen the claim focuses upon 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.' [Citation.]" (People v. Smithey (1999) 20 Cal.4th 936, 960.) "In conducting this inquiry, we 'do not lightly infer' that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements." (People v. Frye (1998) 18 Cal.4th 894, 970, disapproved of on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
Willis refers to one small portion of the prosecutor's closing argument to suggest that the prosecutor committed misconduct by misstating the law. Our review of the record demonstrates that although the prosecutor may have misspoken, it was clear to everyone at trial, including the jury, that the prosecutor was not telling the jury that it could find Willis guilty of possessing the gun simply because the gun was present in the house, without also finding that Willis exercised personal dominion or control over the gun. The prosecutor's argument on this point was as follows:
"Two of the crimes out of the four that are charged are general intent crimes, felon in possession of a firearm and felon in possession of ammunition. That means the defendant does not even need to intend to break the law. That's huge. You just have to be in possession of it and you're guilty.
"There's a couple more slides here and I'll finish up. When looking at whether the defendant is in possession, joint custody and control, I just want to ─ the law gives you a few scenarios. I think it's pretty clear, but I don't want any of the jurors to get tripped up, so I just want to throw out: Two or more people can have control of one item at one time. So if you think it's Christine's gun, the defendant can still have control over it. It's not a defense. A person doesn't have to actually hold it or touch something.
"Once again, if for some reason you think the defendant didn't have the shotgun in his hands, he's still guilty of it because it was in the house. It's enough if the person has control over the gun or ammo or the right to control it."
It is clear that the prosecutor informed the jury that the defendant did not have to be holding the gun in order to be found to have possessed it, but rather, that he could be found to have been in possession of a gun that was in the house if he "has control over the gun... or the right to control it." Earlier in his closing argument, the prosecutor expressly told the jury: "You don't even have to be touching a shotgun to be in possession of it. It doesn't have to be on your body or on your person, and the law will tell you that. You essentially have to know it's there and you have to have the right or custody or control over that object. The defendant knew he possessed the firearm. Once again, the shotgun was seen in his arms."
Further, the court properly instructed the jury on the elements of unlawful possession of a firearm by a felon:
"Now, defendant is charged in count 2 with unlawfully possessing a firearm. To prove that the defendant is guilty of this crime, the People must prove that: One, the defendant possessed a firearm; two, the defendant knew that he possessed the firearm; and three, the defendant had previously been convicted of a felony. [¶]... [¶]... Two or more people may possess something at the same time. A person doesn't have to actually hold or touch something to possess it. It is enough if the person has control over or the right to control it, either personally or through another person."
It is not reasonable to conclude that after hearing the prosecutor's argument in its entirety (or even after hearing only the complained of statement, in context), the jury would have understood the prosecutor to be telling them that the offense was a strict liability offense, as Willis contends. There is no reasonable likelihood that the jury construed or applied the remark of which Willis complains in an objectionable fashion; the jury could not have understood the prosecutor to be suggesting that it could find Willis guilty of possessing the gun simply because the gun was present in the house. The jury was fully informed that Willis not only had to know that the gun was in the house, but also had to have control over the gun or the right to control the gun, before he could be found guilty of being in possession of the gun. We therefore conclude that there was no prosecutorial misconduct in this situation, and thus, that defense counsel's failure to object to the purported misconduct did not constitute ineffective assistance.
D. Willis's sentence does not constitute cruel or unusual punishment
Willis contends that the sentence of 25-years-to-life constitutes cruel or unusual punishment under either the United States Constitution or the California Constitution. We find this argument to be without merit.
1. Willis's sentence does not violate the California Constitution
A sentence may violate the state constitutional ban on cruel or unusual punishment "'if... it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.'" (People v. Dillon (1983) 34 Cal.3d 441, 478.) In People v. Romero (2002) 99 Cal.App.4th 1418, 1431-1432 (Romero), the court outlined the well established framework for considering claims of cruel or unusual punishment under the state Constitution:
"'In order to determine whether a particular punishment is disproportionate to the offense for which it is imposed, we conduct a three-pronged analysis. [Citations.] First, we examine the nature of the offense and/or the offender, with particular regard to the degree of danger both present to society. A look at the nature of the offense includes a look at the totality of the circumstances, including motive, the way the crime was committed, the extent of the defendant's involvement, and the consequences of defendant's acts. A look at the nature of the offender includes an inquiry into whether "the punishment is grossly disproportionate to the defendant's individual culpability as shown by such factors as his age, prior criminality, personal characteristics, and state of mind." [Citation.] Next, we compare the challenged punishment with the punishment prescribed for more serious crimes in the same jurisdiction. And finally, the challenged punishment is compared with punishment for the same offense in other jurisdictions.' [Citation.]"
A defendant must overcome a considerable burden in order to establish that the sentence is disproportionate to his level of culpability. Successful challenges to proportionality are an "exquisite rarity." (People v. Weddle (1991) 1 Cal.App.4th 1190, 1196-1197.)
"[R]ecidivism is a legitimate factor to consider when imposing a greater sentence than for a first time offense." (People v. Cuevas (2001) 89 Cal.App.4th 689, 704-705; see also People v. Martinez (1999) 71 Cal.App.4th 1502, 1512.) "[S]ociety is warranted in imposing increasingly severe penalties on those who repeatedly commit felonies. If increased penalties do not deter the repeat offender, then society is warranted in segregating that person for an extended period of time." (People v. Martinez, supra, 71 Cal.App.4th at p. 1512; see also People v. Cooper (1996) 43 Cal.App.4th 815, 823-824 (Cooper) ["Under the Three Strikes law, defendants are punished not just for their current offense but for their recidivism. Recidivism in the commission of multiple felonies poses a danger to society justifying the imposition of longer sentences for subsequent offenses. [Citation.]"].)
Willis contends that his "status possessor offenses... resulted in no harm to a named victim," and thus his individual culpability is relatively minimal. Willis also attempts to downplay the significance of his criminal history, arguing that his prior strike convictions occurred many years ago, while he was in his 20's. He identifies more recent criminal conduct, including a 1999 misdemeanor conviction for corporal injury on a spouse, a 2004 traffic offense, and a 2005 misdemeanor offense for throwing an object at an occupied vehicle, and contends that "none of this relatively minor conduct supports any conclusion that the current offense bears a significant indication that appellant 'has recidivist tendencies to commit offenses that pose a risk of harm.' [Citation.]" Willis also points out that he "never utilized a firearm in connection with his prior offenses" and that there was no evidence in the current case "that the firearm... was loaded or pointed at any person." Willis contends that this, together with the fact that he had been employed as a printer for eight years prior to the current offense, demonstrates that there is no social need for the "draconian sentence imposed in this case."
At the sentencing hearing, the trial court noted Willis's significant criminal history: "The problem that I see in this case is the pattern of criminal history ─ serious, serious criminal offenses ─ followed by, in recent years, anger, domestic violence, a continuing escalation to the point where we have possession of a sawed-off shotgun racked during the incident, which was one of domestic violence." Later, the court stated, "In this case it's not simply a third strike; it's eight, seven of which ─ or all of which involved weapons. I well understand that Mr. Willis did not use the weapon in the 211 robberies, but the robberies were all alike; and, as you simply look at the summaries, they are telling." Indeed, Willis used a knife during his first robbery, and his codefendant pointed a gun at each victim's head during the seven other robberies to which Willis pled guilty. Further, Willis's parole and probation history is telling. Since 1984, Willis has received two grants of felony formal probation and two grants of misdemeanor probation. In all four instances, his probation was revoked. In addition, Willis violated the terms of his parole in 2000, and was returned to prison to finish his term.
There were apparently 14 robberies in all, and Willis pled guilty to seven of them.
Although Willis would like to minimize the significance of his criminal history, it is precisely this type of criminal history that the Three Strikes law is intended to address:
"The primary goals of recidivist statutes are: '... to deter repeat offenders and, at some point in the life of one who repeatedly commits criminal offenses serious enough to be punished as felonies, to segregate that person from the rest of society for an extended period of time. This segregation and its duration are based not merely on that person's most recent offense but also on the propensities he has demonstrated over a period of time during which he has been convicted of and sentenced for other crimes. Like the line dividing felony theft from petty larceny, the point at which a recidivist will be deemed to have demonstrated the necessary propensities and the amount of time that the recidivist will be isolated from society are matters largely within the discretion of the punishing jurisdiction.'" (Cooper, supra, 43 Cal.App.4th at p. 824, quoting Rummel v. Estelle (1980) 445 U.S. 263, 284-285.)
Willis relies heavily on People v. Carmony (2005) 127 Cal.App.4th 1066 (Carmony), in which the appellate court determined that Carmony's sentence of 25 years to life for failing to update his registration information within five days of his birthday, as required by the sex offender registration statute, constituted cruel or unusual punishment. In Carmony, the defendant had provided the necessary information a month prior to his birthday. (Id. at p. 1072.) "[T]here was no new information to update and the state was aware of that fact. Accordingly, the requirement that defendant reregister within five days of his birthday served no stated or rational purpose of the registration law and posed no danger or harm to anyone." (Id. at p. 1073.) Thus, Carmony's offense was "no[thing] more than a harmless technical violation of a regulatory law." (Id. at p. 1072.) Willis's offenses, in contrast, amount to more than a "harmless technical violation." Willis, a felon who knew that he was not permitted to possess a firearm, was found to have been in possession of sawed-off shotgun, which is illegal for anyone to possess.
A more fitting comparison is the offense in Romero, supra, 99 Cal.App.4th at page 1433, in which the court upheld a sentence of 25 years to life for a defendant who had incurred two prior convictions for nonviolent felonies and subsequently stole a magazine. Although the defendant's third strike was nonviolent and relatively minor, the Romero court determined that the sentence did not constitute cruel or unusual punishment under the California Constitution. Willis's current offense is clearly more serious than the third offense committed by the defendant in Romero. In light of the holding in Romero, we conclude that the nature of Willis's offense and the totality of the circumstances do not render Willis's sentence grossly disproportionate to his crime. Willis's criminal history establishes that the sentence of 25 years to life imposed in this case is not disproportionate to his culpability.
Willis next compares his punishment with punishments that are prescribed for more serious crimes in California. He asserts that "the indeterminate life sentence imposed herein is the third most severe penalty available under California law," and that his sentence "is substantially more severe than penalties imposed for far more serious crimes," such as second degree murder, voluntary manslaughter, kidnapping, and rape. We reject Willis's comparison of his sentence under the Three Strikes law to the sentences imposed for serious or violent crimes in the absence of prior strikes. (See, e.g., Romero, supra, 99 Cal.App.4th at p. 1433 ["'"Because the Legislature may constitutionally enact statutes imposing more severe punishment for habitual criminals, it is illogical to compare [defendant's] punishment for his 'offense,' which includes his recidivist behavior, to the punishment of others who have committed more serious crimes, but have not qualified as repeat felons." [Citation.]' [Citation.]"].)
Willis also compares his sentence to recidivist punishment in other jurisdictions, claiming that this "inter-jurisdictional comparison... illustrates the disproportionality of the sentence" imposed on him. According to Willis, only Texas and California mandate a recidivist sentence of 25 years or longer, while other states typically permit, but do not require, the imposition of a recidivist sentence of only 10 years or longer. The difference between California's Three Strikes law and the laws of other jurisdictions, he contends, demonstrates the "disproportionate harshness" of his sentence, which, he claims, constitutes cruel or unusual punishment. We disagree. The fact "'[t]hat California's punishment scheme is among the most extreme does not compel the conclusion that it is unconstitutionally cruel or unusual. This state constitutional consideration does not require California to march in lockstep with other states in fashioning a penal code. It does not require "conforming our Penal Code to the 'majority rule' or the least common denominator of penalties nationwide." [Citation.] Otherwise, California could never take the toughest stance against repeat offenders or any other type of criminal conduct.'" (Romero, supra, 99 Cal.App.4th at p. 1433, quoting People v. Martinez, supra, 71 Cal.App.4th at p. 1516.)
We conclude that under the authorities cited above, the sentence of 25 years to life in this case is not grossly disproportionate to the crime charged, and does not shock the conscience such that it constitutes cruel or unusual punishment under the California Constitution.
2. Willis's sentence does not violate the federal Constitution
Willis contends that his sentence violates the Eighth Amendment's prohibition against cruel and unusual punishment. The Eighth Amendment "contains a 'narrow proportionality principle' that 'applies to noncapital sentences.'" (Ewing v. California (2003) 538 U.S. 11, 20 (Ewing) (plur. opn. of O'Connor, J.), quoting Harmelin v. Michigan (1991) 501 U.S. 957, 996-997.)
Chief Justice Rehnquist and Justice Kennedy joined the plurality opinion, while Justices Scalia and Thomas filed opinions concurring in the judgment, concluding that the Eighth Amendment contains no proportionality principle. (Ewing, supra, 538 U.S. at pp. 31-32 (conc. opns. of Scalia, Thomas, Js.).)
In Ewing, the United States Supreme Court considered whether a sentence of 25 years to life under California's Three Strikes law violated the Eighth Amendment. Ewing was convicted of grand theft for shoplifting three golf clubs valued at $1,200. He had previously been convicted of four serious felonies, including a robbery and three burglaries stemming from a single case. (Ewing, supra, 538 U.S. at pp. 17-18, 20.) In addition to the serious felony convictions, Ewing's criminal record included numerous theft related convictions, and convictions for drug possession, battery, burglary, unlawful possession of a firearm, and trespassing. (Id. at p. 18.)
The Supreme Court concluded that Ewing's sentence did not violate the Eighth Amendment, reasoning that "Ewing's sentence is justified by the State's public-safety interest in incapacitating and deterring recidivist felons, and amply supported by his own long, serious criminal record." (Ewing, supra, 538 U.S. at pp. 29-30.) The Court noted that although Ewing's sentence was a long one, "it reflect[ed] a rational legislative judgment, entitled to deference, that offenders who have committed serious or violent felonies and who continue to commit felonies must be incapacitated." (Id. at p. 30.)
Like Ewing, Willis has been convicted of numerous felony offenses in the past. Although it may have been Willis's codefendant who personally used a firearm in the robberies of more than 14 victims, Willis took part in those crimes and was well aware of his codefendant's use of the gun to threaten those victims. Further, Willis's record is lengthy, and his probation has been revoked each time he was granted probation. Although Willis's current offenses do not technically involve violence, they demonstrate the potential for further violence. Willis was found guilty of possessing a sawed-off firearm and live ammunition – offenses which arose in the context of what appears to have been a very heated argument between Willis and his wife. In view of the nature of Willis's prior offenses and his continuous criminal history, we cannot conclude that Willis's sentence constitutes cruel and unusual punishment under the United States Constitution.
IV.
DISPOSITION
The judgment of the trial court is affirmed.
WE CONCUR: HALLER, Acting P. J., O'ROURKE, J.