Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 05F07263
RAYE, J.Sentenced to 300 years to life plus 20 years in state prison for kidnapping and committing a series of forcible sex acts on his 15-year-old victim, defendant contends the trial court abused its discretion by allowing two prior victims to testify he raped them under similar circumstances and by disallowing evidence his victim had been molested and had lied about it, and evidence of medication she failed to take. Defendant concedes the propensity evidence was admissible under Evidence Code section 1108, and we find no abuse of discretion pursuant to Evidence Code section 352. We can find no manifest injustice in the manner in which the trial court exercised its discretion, and even if the trial court abused its discretion, any error was harmless beyond a reasonable doubt. Nor did the trial court abuse its discretion by refusing to strike defendant’s prior convictions. We affirm.
All further statutory references are to the Evidence Code unless otherwise indicated.
FACTS
Defendant testified in his own behalf and admitted that the testimony offered by two of his prior victims was true. He admitted four prior offenses.
Tammy M. testified that in 1991, when she was 29 years old, defendant offered her a ride in his Chevrolet pickup truck with another male passenger. She was walking late at night because her date had been too intoxicated to drive. She asked to see defendant’s driver’s license and then accepted the ride. Defendant dropped off the male passenger, and Tammy agreed to buy him some beer in exchange for the ride. Defendant then drove her to a rural location, parked by the side of the road, jumped on top of her, pulled her shirt over her head to restrain her, and pulled her pants down. She resisted and tried to dissuade him by telling him she had AIDS, herpes, and syphilis.
Defendant sodomized Tammy after telling her she had been wearing “fuck me pants” that she would never wear again, and if another man had been present she would be “sucking his cock.” He then threatened to “beat the fuck out of [her]” if she did not cooperate.
Defendant bit Tammy on the back and choked her. Every time she tried to open the car door, he slammed it shut on her head. Eventually he allowed her to get dressed, and as they drove down the street, he told her she had one chance to jump out of the truck. She did so and hid behind a tree for a long time.
About a year later defendant, again driving a pickup truck, stopped 16-year-old Katherine C. as she was walking to school and asked her for directions. Defendant told her she was pretty and offered her a ride to school. She declined and continued walking. But she soon noticed his truck was parked by the river and defendant was standing beside the path on which she was walking. As Katherine walked by him, he grabbed her from behind, lifted her off the ground, and dragged her to some dry grass near the riverbed. As she screamed, he covered her mouth and threatened to hurt her if she was not quiet.
Defendant suggested they “smoke a joint,” but Katherine tried to fight him off. He lifted her shirt. Struggling, she turned over onto her stomach. Defendant remarked, “I guess you want it in your butt then.” When she turned over onto her back, he bit her breast and gagged her with his shirt. He pulled her pants down past her knees and twice tried to insert his penis in her vagina before finally succeeding and then ejaculating. As she got dressed, he apologized but said he had “nothing to lose” by raping her as he was awaiting sentencing for raping a 25 year old.
Defendant faced criminal charges as a result of the two incidents, and in 1992 he was convicted of sodomy by force (Pen. Code, § 286, subd. (c)), rape by force (Pen. Code, § 261, subd. (a)(2)), assault with intent to commit rape (Pen. Code, § 220), and assault with intent to commit sodomy (Pen. Code, § 220). He served a lengthy prison term and returned briefly to society before committing the charged offenses as described below. Pursuant to the conditions of his parole, defendant had rigid curfew restrictions. On Sundays he was obligated to return to his apartment by 3:00 p.m. Drugs and alcohol were prohibited.
Nevertheless, on Sunday, August 14, 2005, around 7:00 p.m. defendant called a woman he had met a week earlier and went to visit her about an hour later. The woman and her roommate were moving with their daughters from one apartment to another in the same building. The victim, 15-year-old Rebecca, was playing with the little girls and braiding their hair. Defendant asked Rebecca to get him a beer from the refrigerator in the old apartment. He agreed to pay her $2.
To protect her privacy, the victim will be referred to herein by the pseudonym “Rebecca.”
Later, when Rebecca went outside, she saw defendant sitting in a white pickup truck, and he flashed his lights at her. She approached the truck and asked him for $2 and another $5 to pay her mother for a window she had broken. Defendant told her he would give her $40 if she would follow him to the nearby market. He drove and she walked. They waited at the market until it closed.
Defendant placed two $20 bills and a $1 bill next to him on the front seat. Rebecca, who had opened the passenger door, reached in for the bills but pulled back and closed the door, as something did not feel right. She walked around to the other side of the truck to begin walking home. Defendant got out of the truck and assured her he would stay away and she could get the money. As she moved toward the door to reach for the money, however, defendant pushed her inside the truck, slammed the door closed, and sped off. She tried to reach the passenger door, but he grabbed her collar and, choking her, pulled her back. She screamed and begged him to let her go home.
A witness observed a white Chevrolet short-bed pickup truck with only its parking lights on heading in his direction. As the truck got closer, he noticed the driver had his right hand extended over the passenger seat, “trying to hold something down.” The witness heard a young female scream “no” and “stop.” His mother-in-law called 911 at 10:04 p.m. and reported that a female was screaming and fighting the driver of a white pickup truck on Verano Street.
Meanwhile, inside the truck, Rebecca was trying to kick, bite, and hit defendant; she succeeded in biting his hand and arm. Defendant tried to run a red light and collided with a van, shattering the window in the truck’s driver’s-side door. Rebecca cut her neck as she tried to crawl through the broken window but was unable to escape. Defendant drove to a dark location behind a building.
Defendant ordered Rebecca to lie down. He ripped off a button on her pants and broke the zipper as he forcefully stripped her naked. He demanded that she call him “sir,” bit her breast, and licked her vagina. He pulled out his penis and instructed her to suck it. He then directed her to lie on her stomach so they could have intercourse “doggy style.” She told him she did not know what that was. He turned her onto her stomach, lifted her buttocks, and put his fingers in her vagina. He tried to insert his penis into her vagina at least three times, but it kept slipping out. He made her play with his testicles. When he asked if she liked his penis, she answered, “No, sir.” When asked if she thought “about cock,” she said no, but he forced her to respond, “yes, sir.”
After it was over, he apologized and asked Rebecca not to tell because he would go to jail. Crossing her fingers, she agreed. He began checking his voice messages on his cell phone. The mother of the girls Rebecca had been playing with had called 23 times searching for Rebecca. Rebecca got out and began walking home. A community service officer found Rebecca just before midnight, “upset, crying, [and] somewhat distressed.”
When she arrived at the U.C. Davis Medical Center, Rebecca’s hair was disheveled, her shirt collar was pulled away from the stitching, the zipper on her jeans had been split open, and a button was missing from the jeans. She identified defendant in a photo lineup. A physician’s assistant found glass cuts on Rebecca’s neck, abrasions on her knees and up and down her entire back, and a piece of glass in her hair. The physician’s assistant noticed recent injuries including a hematoma at the 9:00 o’clock position on her hymen, a laceration at the 5:30 position on her hymen, and redness in the 3:00 o’clock position from the hymen to the edge of the labia minora. A nurse who worked with sexually abused children found clear evidence of new sexual abuse and opined that the injuries were consistent with penetration by a penis or fingers.
Defendant was arrested at a motel the following day. A forensic investigator photographed redness at the webbing of defendant’s hand and an injury to his right palm. Defendant told a nurse at the jail, “I’ve done this before, this is my third strike, I was a PC [protective custody] for the same thing, I’ve been in prison most of my life.”
Defendant’s white pickup truck was impounded. A window was shattered and there was damage along the exterior of the driver’s side. Inside the truck, police found 63 human hairs belonging to Rebecca, some torn from the roots. The police also found a button from Rebecca’s jeans on the passenger side floorboard.
Defendant testified that he paid Rebecca $40 to have sex with him. He believed she was 18 years old and consented to have sex. He denied digitally penetrating her, biting her, or forcing her to orally copulate him. He admitted that Tammy M. and Katherine C. had accurately described how he had sexually assaulted them, and he expressed remorse for those crimes. Nevertheless, he insisted he was innocent of the charges in this case.
I
Prior Convictions for Sexual Misconduct
In 1995 the Legislature enacted change in long-standing evidentiary rules limiting admissibility of prior sex crimes to show a propensity to commit such crimes. (People v. Falsetta (1999) 21 Cal.4th 903, 911 (Falsetta).) “[S]ection 1108 was intended in sex offense cases to relax the evidentiary restraints section 1101, subdivision (a), imposed, to assure that the trier of fact would be made aware of the defendant’s other sex offenses in evaluating the victim’s and the defendant’s credibility. In this regard, section 1108 implicitly abrogates prior decisions of this court indicating that ‘propensity’ evidence is per se unduly prejudicial to the defense.” (Falsetta, at p. 911.)
Section 1108, subdivision (a) provides, in pertinent part, that “[i]n a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant’s commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352 [permitting court to exclude evidence on weighing probative value and prejudicial impact].” Defendant concedes his prior sex crimes against Tammy M. and Katherine C. were the types of sex crimes admissible pursuant to section 1108, but he insists the trial court nonetheless abused its discretion under section 352 by admitting the evidence because the crimes were not sufficiently similar to the charged offense and the testimony was unduly prejudicial. We disagree.
Defendant also concedes that if the evidence was admissible under either section 1101 or 1108, there is no reversible error. We need not, therefore, address the admissibility of the evidence under section 1101 because, as we explain, the court did not abuse its discretion under sections 1108 and 352.
A section 352 analysis requires the trial court to weigh the probative value against the prejudicial impact of the prior crimes evidence. While we need not engage in the nuanced evaluation of just how similar the crimes must be, as required by the section 1101, subdivision (b) exception to the general rule of inadmissibility, we must be assured that the crimes are sufficiently similar to be relevant and therefore probative of propensity. Defendant insists the facts surrounding the charged offense bear little resemblance to the sexual assaults he perpetrated more than 13 years earlier.
First, we remind defendant we are constrained by the deferential standard of appellate review. “The trial court enjoys broad discretion under Evidence Code section 352 in determining whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time and this discretion is built into Evidence Code section 1108, subdivision (a). The exercise of this statutory discretion will not be disturbed on appeal ‘“except on a showing that the trial court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.”...’ [Citation.]” (People v. Frazier (2001) 89 Cal.App.4th 30, 42.)
The trial court carefully weighed multiple factors before exercising its discretion, including the similarity between the crimes. The court explained at some length:
“As to the factor of similarity to the charged offenses, Evidence Code Section 1108 specifically lists the offenses which are relevant propensity evidence, including those charged in this case and the uncharged crimes.
“In People versus Frazier, a 2001 case at 89 Cal.App.4th 30 at pages 40 and 41, the Court writes: The charged and uncharged crimes need not be sufficiently similar that evidence of the latter would be admissible under Evidence Code Section 1101. Otherwise, Evidence Code Section 1108 would serve no purpose. It is enough that the charged and uncharged offenses are sex offenses as defined in 1108.
“Notwithstanding that court’s comment with respect to the issue of similarity, based on the representations of counsel, I do find the following facts are of similar nature.
“One, the Defendant arguably kidnapped all three females. Secondly, Defendant was either in -- was either a stranger to the victims or a near stranger or a near stranger [sic] to the victims. Defendant used a truck in all three instances. The Defendant used force against all three victims.
“Defendant bound the victims in the uncharged offenses and reacted by an escalation of force when the victims resisted. And in the current case the Defendant is alleged to have escalated his response when the victim resisted.
“In the uncharged case of Tammy [M.], the Defendant is alleged to have used the prospect of buying beer as a ruse to keep the victim from leaving. In the current case the Defendant is alleged to have used beer to ingratiate himself with the named victim.
“In the case of Tammy [M.] and the current case, during the sexual assaults Defendant is alleged to have made various comments about the victims and their sexual habits. In all three cases the Defendant is alleged to have made threats concerning the victims’ reporting the sexual assaults.”
We too find there is sufficient similarity between defendant’s prior sex crimes against Tammy M. and Katherine C. and the charged offenses against Rebecca. With Tammy and Rebecca, defendant used a ruse to trick them into trusting him and getting them into his truck, he transported both of them in his truck to a secluded spot, he referred to oral copulation, and he bit and choked both of them.
Katherine C. was 16 years old when defendant kidnapped and raped her; Rebecca was 15. Again, he took Katherine, as he did Tammy and Rebecca, to a secluded spot in his truck. He bit their breasts, he had trouble inserting his penis into their vaginas, and he apologized after assaulting them.
Yet defendant points to dissimilarities as if the crimes must be nearly identical to be relevant and admissible. He complains that Tammy, unlike Katherine and Rebecca, who were teenagers, was a mature woman of 29. While defendant picked up Tammy, who was out walking alone late at night, he had visited with Rebecca in the company of others for some time before asking her to accompany him to the market. He further emphasizes that Rebecca struggled, while Tammy did not, and Tammy wore provocative clothing, while Rebecca did not. More importantly, in defendant’s view, he was much more aggressive and brutal with Tammy than he was with Rebecca, and while he apologized to Rebecca, he never did to Tammy.
He finds other distinctions between his assaults of Katherine and Rebecca. He stalked Katherine but did not attempt to ingratiate himself to her as he did with Rebecca. He finds significant the fact he abducted Katherine in an isolated area, whereas he spent several hours with Rebecca at her apartment complex, surrounded by people she knew, as well as the fact he orally copulated Rebecca but not Katherine, and suggested sodomy with Katherine but not with Rebecca.
These distinctions are not persuasive. Defendant glosses over the significant similarities identified by the trial court, including the facts that all three victims were kidnapped and transported in defendant’s truck, all three were either strangers or virtual strangers, all three were violently assaulted in his truck in remote settings, and all three were allowed to leave after the sexual crimes were complete. In the context of the court’s exercise of the broad discretion accorded it pursuant to section 352, the court did not act in a whimsical, capricious, or patently absurd manner. Defendant is mistaken in demanding far greater similarity between the charged and uncharged crimes.
But similarity is only one of the many factors a trial court must balance under the section 352 analysis necessitated by section 1108. In Falsetta, supra, 21 Cal.4th at p. 917, the Supreme Court identified those factors: “[T]rial judges must consider such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant’s other... offenses, or excluding irrelevant though inflammatory details surrounding the offense. [Citations.]”
Defendant complains that the 1992 convictions are too remote. Not so. Defendant had been recently paroled before the commission of the charged offenses. Incarceration significantly minimizes the remoteness. (People v. Walker (2006) 139 Cal.App.4th 782, 807 (Walker).) Additionally, any prejudice is minimized because the charged offense is no more inflammatory than the brutal attacks on Tammy and Katherine that defendant candidly admitted. (Ibid.)
There was no undue consumption of time. The combined testimony of Tammy and Katherine consists of a mere 34 pages in the reporter’s transcript. And because the jury was informed that defendant had served his sentence for the prior sex crimes, there was no danger he would be punished for the past, rather than the current, offenses.
Clearly, evidence of defendant’s two priors was prejudicial in the sense that it was harmful to defendant’s legal position. Indeed, the very purpose of section 1108 is to allow the jury to use propensity evidence in sex crime cases. Thus, a trial court should not exclude highly probative evidence “unless the undue prejudice is unusually great.” (Walker, supra, 139 Cal.App.4th at p. 806.) “‘Undue prejudice’ refers not to evidence that proves guilt, but to evidence that prompts an emotional reaction against the defendant and tends to cause the trier of fact to decide the case on an improper basis.” (Ibid.)
Here the evidence was highly probative for all the reasons the Legislature sought to allow the admission of prior sex crimes. Thus, although the evidence was certainly prejudicial as all propensity evidence is, in the sense that it was harmful to defendant, it was not prejudicial in the sense that it would tend to cause the trier of fact to decide the case on an improper basis. Thus, the trial court did not abuse its discretion by concluding that the probative value substantially outweighed the prejudicial nature of the two prior sex crimes and thus that the prejudice, though real, was not undue.
II
Disallowed Evidence
A defendant’s right to introduce relevant evidence to impeach a victim’s credibility is at the heart of his due process right to a fair trial and his right to cross-examination under the confrontation clause of the Sixth Amendment. (Davis v. Alaska (1974) 415 U.S. 308, 316 [39 L.Ed.2d 347]; People v. Northrop (1982) 132 Cal.App.3d 1027, 1042, disapproved on other grounds in People v. Smith (1984) 35 Cal.3d 798, 807-808.) Defendant contends the trial court abused its discretion by refusing to allow evidence that the victim had accused her father of molesting her and then recanted, and that she had failed to take medication. According to defendant, the court’s abuse of discretion constitutes constitutional error under both the state and federal Constitutions.
Although a defendant has the general right to offer a defense through the testimony of his or her witnesses, “a state court’s application of ordinary rules of evidence—including the rule stated in Evidence Code section 352—generally does not infringe upon this right” to a defense. (People v. Cornwell (2005) 37 Cal.4th 50, 82, overruled on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) There is often, as in this case, a fine line between abuse of discretion and harmless error. We begin at the end of any analysis. The evidence of guilt is so overwhelming under any standard of prejudice that if, as defendant suggests, the trial court abused its discretion by improperly limiting his ability to attack Rebecca’s credibility with evidence of a prior molestation or her failure to continue a medication regime, we conclude the error was harmless.
Although defendant claimed that he engaged in consensual sex with 15-year-old Rebecca (who he believed was 18), the physical and testimonial evidence was to the contrary. That evidence included testimony by the witness who saw defendant driving his pickup truck while holding someone down in the front seat. The witness heard a young girl screaming and his mother-in-law called the police.
Despite defendant’s insistence the sex was consensual, police investigators found a clump of Rebecca’s hair, including some with roots attached, on the seat of defendant’s truck; on the floorboard, they found the button missing from her pants. The cuts Rebecca sustained substantiated her testimony that she tried to escape through the window that was broken in the collision. The medical personnel who examined Rebecca concluded that she had been sexually assaulted. There were recent injuries to her hymen and the edge of the labia minora.
Moreover, Rebecca’s appearance and demeanor immediately following the encounter with defendant substantiated the consistent story she told of being raped and abused by defendant. When found, she was “upset, crying, [and] somewhat distressed.” Her hair was disheveled, her shirt collar was pulled away from the stitching, and the zipper on her pants had been split open.
Defendant’s hand had an injury where Rebecca claimed to have bitten him.
In addition to the physical and testimonial evidence, the jury also heard the compelling propensity evidence that defendant had sexually assaulted two other women in a similar fashion years earlier. Thus, the trial court’s refusal to allow the defense to examine the victim about an alleged molestation by her father and her failure to continue her medication must be considered in the context of overwhelming evidence that a two-strike offender accosted a 15 year old who evidenced all the telltale signs of a sexual assault, coupled with evidence that a witness actually saw her resisting and evidence suggesting defendant had been bitten in the process. In short, the evidence defendant sought to introduce paled next to the overwhelming evidence that he had once again kidnapped, attacked, and raped a defenseless young woman.
We conclude, therefore, that if there was error it was harmless beyond a reasonable doubt. We acknowledge that the trial court “enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time.” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.) And we must defer to the exercise of that discretion, whatever our misgivings, unless we can say it was exercised in an arbitrary, capricious, or patently absurd manner. (Ibid.) We must be able to find, with some confidence, that the exclusion of the evidence resulted in a manifest miscarriage of justice.
Defendant objects to two rulings excluding evidence he believes was crucial to his defense. He first sought to impeach Rebecca’s credibility with evidence she claimed to have been molested by her father and then recanted. According to defendant, Rebecca “repeatedly accused her own father of sexually molesting her but repeatedly recanted those accusations.” He contends the evidence was relevant to demonstrate why a 15 year old was familiar with sexual conduct and to expose the fact that she had previously launched accusations of sexual impropriety and then recanted, thus diminishing her credibility as a truthful witness. Defendant relies on People v. Daggett (1990) 225 Cal.App.3d 751 (Daggett) and People v. Franklin (1994) 25 Cal.App.4th 328 (Franklin), neither of which is analogous to the facts before us.
The defendant in Daggett sought to admit evidence that the victim had claimed he had been molested when he was five years old. Unlike the trial court here, the trial court in Daggett did not order a hearing pursuant to section 782 to determine if the acts involved in the purported prior molestation were similar to the acts of which the defendant stood accused. (Daggett, supra, 225 Cal.App.3d at p. 757.) Reversing, the Court of Appeal explained: “A child’s testimony in a molestation case involving oral copulation and sodomy can be given an aura of veracity by his accurate description of the acts. This is because knowledge of such acts may be unexpected in a child who had not been subjected to them. In such a case it is relevant for the defendant to show that the complaining witness had been subjected to similar acts by others in order to cast doubt upon the conclusion that the child must have learned of these acts through the defendant. Thus, if the acts involved in the prior molestation are similar to the acts of which the defendant stands accused, evidence of the prior molestation is relevant to the credibility of the complaining witness and should be admitted.” (Id. at p. 757.)
Here the trial court found the alleged molestation by Rebecca’s father bore no resemblance to the facts of the kidnapping and rape perpetrated by defendant. Moreover, the danger that a very young child’s testimony would have a false aura of authenticity is far less likely when the victim is 15, not 5, and presumably has far more opportunities, whether through education, entertainment, or personal experience, to be familiar with sexual terminology.
In Franklin, supra, 25 Cal.App.4th 328, it was undisputed that the child victim falsely accused her mother of licking her genitals. By contrast, the truth or falsity of Rebecca’s accusation that her father had molested her was, and continues to be, very much in dispute because on more than one occasion she launched the accusation only to recant later. As a result, it is difficult to say the trial court abused its discretion by avoiding a mini-trial on the disputed acts, acts that were dissimilar to the charged offenses.
The evidence regarding Rebecca’s medication was even less probative of her credibility as a witness. Defendant argues the jury should have heard that she had suffered hallucinations in the past and failed to take prescribed medication. But, as the Attorney General points out, she testified that she abandoned the regimen because the medication was not helping her. Indeed, there was no evidence that the discontinuation affected her ability to perceive and recall the events on the day of the alleged offenses. In that context, we cannot say the trial court abused its discretion.
We maintain an expansive view of a defendant’s sacrosanct right to fully develop his defense and to challenge the complaining witness to searing cross-examination. But a victim’s prior sexual conduct is, of course, irrelevant unless under the unique facts of the case it is highly probative of her credibility. In order to conclude the trial court abused its discretion, we must find a manifest miscarriage of justice. And that is where we began. The evidence of guilt is so convincing, indeed overwhelming, that we simply cannot say there has been a miscarriage of justice. The trial court weighed the probative value against the prejudicial impact and concluded the evidence should be excluded. In the absence of a miscarriage of justice, there has been no breach of defendant’s state or federal constitutional rights and no reversible error. Because the trial court did not commit multiple errors, we reject defendant’s notion that the cumulative effect of the purported errors rendered his trial fundamentally unfair.
III
Refusal to Strike Prior Convictions
Finally, defendant also asserts the trial court abused its discretion by refusing to strike his prior convictions. He objects to the court’s negative assessment in refusing to strike the convictions. The court explained: “Based on what I heard, and based on what I saw in this courtroom, the conclusions I reached with respect to you is that you are an unrepentant rapist. You lack even a modicum of self-control.... No rules, no constrictions, no parameters placed on you, if you remain in society, will stop you from doing what, ultimately, you want to do.... [¶] You are not sorry for what you did, you are sorry for having been caught. You are a walking, talking, breathing danger to society. Justice demands that you be locked up until the day you die because it is only then that we can all be assured that you will not harm another mother’s daughter.” Defendant contends that the trial court’s vindictive remarks constitute an abuse of discretion. (People v. Williams (1998) 17 Cal.4th 148, 162.)
Defendant bristles at the suggestion that he is unrepentant. He insists he is remorseful about the pain he caused Tammy M. and Katherine C. Moreover, he rejects the court’s assessment that he is irredeemable, emphasizing that he completed a program in prison to help offenders avoid situations where they might relapse, and he demonstrated his commitment to the program by keeping a journal. He emphasizes that the two prior convictions were 13 years old.
The trial court, however, interpreted defendant’s behavior much differently. Most of the 13 years, defendant was safely locked up. In fact, he had been released for less than 11 months before he committed the same kind of brutal rape of another vulnerable young woman. Under these circumstances, the court may have reasonably rejected defendant’s self-serving expression of contrition.
Defendant expresses his aversion to being warehoused in prison until he dies. But as even he acknowledges, California Rules of Court, rule 4.410(a)(1)-(5) allows the court to consider the protection of society and deterring the defendant from future criminal conduct as legitimate factors in sentencing. He has demonstrated in the most brutal fashion that he continues to threaten the safety of women, and as the trial court aptly observed, he was incapable of exercising even a modicum of self-control.
In reviewing the court’s exercise of discretion in refusing to strike defendant’s prior convictions, we are guided by two fundamental precepts. “First, ‘“[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.”’ [Citation.] Second, a ‘“decision will not be reversed merely because reasonable people might disagree. ‘An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.’”’ [Citation.] Taken together, these precepts establish that 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 (2004) 33 Cal.4th 367, 376-377.)
Defendant has failed miserably to sustain his burden of demonstrating that the court’s refusal to strike the priors was irrational or arbitrary and that no reasonable person could agree with it. His conduct belied his protestation of remorse and rehabilitation. As the trial court properly concluded, defendant is precisely the type of dangerous recidivist the three strikes law was designed to reach. The trial court did not abuse its discretion by hewing to the public policy dictated by the law.
DISPOSITION
The judgment is affirmed.
We concur: SCOTLAND, P. J., HULL, J.