Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Madera County No. MCR025582. Jennifer R.S. Detjen, Judge.
Janet J. Gray, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lloyd G. Carter, and Leanne LeMon, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
DAWSON, Acting P.J.
Following a jury trial, appellant William Charles Clerk (who is also known as William Charles Lane) was found guilty of felony driving in willful or wanton disregard for safety of persons or property while fleeing from pursuing police officers (Veh. Code, § 2800.2, subd. (a)), and the allegation that appellant had suffered two prior strikes (Pen. Code, § 667, subds. (b)-(i)) was found true. The trial court sentenced appellant to 25 years to life in state prison.
All further statutory references are to the Penal Code unless otherwise stated.
Appellant contends that the trial court prejudicially erred when it: (1) denied his motion for mistrial and/or failed to exclude specific testimony; (2) abridged his right to present a defense; (3) failed to find that the prosecutor had committed misconduct; (4) denied his request to call the prosecutor as a witness; (5) improperly admitted photographs into evidence; (6) failed to strike his prior strike convictions; and (7) did not understand its discretion to reduce his conviction to a misdemeanor. Appellant also contends the sentence imposed constitutes cruel and/or unusual punishment. We disagree and affirm.
FACTS
At approximately 10:30 p.m. on March 2, 2006, California Highway Patrol (CHP) officers Mayolo Banuelos and Rafael Rivera were in uniform and on duty in a marked patrol vehicle. Banuelos was merging onto southbound Highway 99 in Madera County when he noticed two motorcycles travelling together at a high rate of speed. Banuelos paced the motorcycles and clocked their speed at 90 miles per hour. A records check revealed that one of the motorcycles was stolen. Banuelos decided to instigate a stop and asked for vehicle and helicopter or airplane assistance.
Once the backup vehicle and the helicopter were in place, Officer Banuelos activated the patrol car’s lights while the helicopter put a spotlight on the motorcycles. In response to Officer Rivera’s request over the public address system, the motorcycle driven by appellant slowed down and began to pull over. But appellant then sped off, and Banuelos turned on his siren and followed appellant.
Appellant turned off the headlights of the motorcycle and continued at a high rate of speed. Officer Banuelos travelled at 135 miles per hour, but was unable to see the motorcycle. When appellant crossed from Madera County into Fresno County, two Fresno CHP officers, Jared Banta and Chad Moran, were waiting and took over the pursuit. While pursuing appellant, Banuelos observed appellant commit several Vehicle Code violations, namely driving without lights at night, going over the speed limit, and traveling in excess of 100 miles per hour.
Officers Banta and Moran were on duty at Olive Avenue and Highway 99 when they saw appellant pass them going at least 130 miles per hour. The officers, with lights and sirens activated on their patrol car, chased appellant on southbound Highway 99 to southbound High 41 and then to Adams Avenue, where appellant turned around and proceeded north on Highway 41 back to Highway 99 northbound. Appellant exited at Golden State Boulevard and again turned south on Highway 99.
When appellant exited at Belmont Avenue, he slowed down, but did not stop at the stop sign. Instead, he traveled north on a frontage road and reentered southbound Highway 99, but travelling north on the shoulder of the lanes. Appellant exited at McKinley Avenue, using the on-ramp as an off-ramp, and ran the stop sign at McKinley and Hughes. The motorcycle came to a stop when the patrol car was able to cut him off.
Officer Orie Lamb, a flight officer who was in the helicopter with a pilot, followed appellant’s course from the air. During the flight, Lamb videotaped the pursuit, which was played for the jury. During the pursuit, Lamb observed appellant driving at “extreme speeds, ” failing to stop at several stop signs, and driving the wrong way on the freeway.
When appellant finally stopped and got off the motorcycle, Officer Banta pointed his gun at him and forced him to the ground. Because appellant continued to struggle, Banta pepper sprayed him. Banta did not kick or hit appellant with his baton.
Officer Banuelos arrived on the scene and transported appellant to jail. While in the patrol car, appellant told Banuelos that he saw the lights on the patrol car, but decided to “mash out, ” meaning to take off or get away from the police. Appellant gave no other reason for failing to stop and pull over.
Defense
Appellant, who admitted he had been convicted of two prior felonies, testified in his own defense that he was riding a motorcycle on Highway 99 when he saw a CHP vehicle behind him. The vehicle turned on its lights and appellant began to pull over, but decided against it because there was no one else around. According to appellant, he exited the highway to look for somewhere to stop where he would not be by himself. Appellant was not from the area and did not want to stop in an isolated place.
When appellant did stop, Officer Banta had a gun, although appellant told him he was “already down.” Banta then kicked him, stomped on him, hit him with his baton, and pepper sprayed him.
On cross-examination, appellant admitted that, during the pursuit, he was speeding, the lights on the motorcycle were going “off and on, ” he “really doubt[ed]” that he used his turn signals, that he didn’t come to a complete stop at several stop signs, and that he got onto the freeway by using an off-ramp.
Officer Banuelos was recalled and testified that, prior to his testimony, he spoke to the deputy district attorney, who told him what questions she would be asking him when he was on the stand. Banuelos did not discuss the case with the other officers and the deputy district attorney “at the same time.”
Rebuttal
Officer Banuelos testified that appellant did not tell him he failed to stop because he was fearful. Nor did he say he was looking for a place to stop that was less isolated. After being arrested, appellant complained about the pepper spray, but did not mention any other injuries.
Correctional officer Lisa Morales did a medical screening on appellant when he was brought to the jail. At the time, appellant complained of left shoulder, back, and right knee pain. He had irritation in his right eye due to the pepper spray but was not taken to the hospital because he had no major medical problems. The shift supervisor, Sergeant Wendell Davis, saw no visible signs of trauma on appellant when he was admitted to the jail.
Stipulations
The parties stipulated that the pursuing officers had a reasonable belief that the motorcycle appellant was driving was stolen, but that appellant was not charged with the crime of vehicle theft or possession of stolen property.
DISCUSSION
I. Discussion Between Prosecutor and Officers
Most of appellant’s contentions on appeal are based on the denial of several motions and subsequent rulings stemming from one incident involving an alleged conversation between the prosecutor and several officers prior to their testimony. For this reason we set forth in detail the relevant procedural history and then address each issue in turn.
Prior to trial, the trial court granted appellant’s motion to exclude witnesses from the courtroom. Thereafter, the People designated Officer Banuelos as the chief investigating officer; the defense chose not to designate anyone.
During trial, defense counsel made two motions “based on the same underlying situation.” He first made a motion to disqualify the People’s officer witnesses for violating the trial court’s order to exclude witnesses. According to defense counsel, “the witnesses did discuss testimony after the exclusion order with the prosecutor in a group in the hallway yesterday.” Defense counsel also made a mistrial motion, further claiming that the same conduct on the part of the prosecutor amounted to prejudicial misconduct.
In support of his motions, defense counsel called Craig Collins, an attorney, who testified that at 10:00 a.m. on November 4, 2009, he witnessed the deputy district attorney and three uniformed police officers “closely together in a circle” in the hallway of the courthouse discussing whether or not travelling the wrong way on a street shoulder amounted to a traffic violation.
In response to this testimony, defense counsel argued that the hallway discussion appeared to be an attempt on the part of the prosecutor to find as many Vehicle Code violations as possible to ensure a conviction. The trial court noted that the question of whether driving on the shoulder of a highway was a traffic violation that carries a “traffic violation point” is a legal issue, not a factual one. The court concluded that:
“[A]t least what has been presented is that there was no conversation regarding their testimony. Just the legal issue of whether or not such a behavior constitutes a traffic violation point. [¶] So the Court does not find based on the evidence that has been presented there has been a violation of the Court Order or that there has been prosecutorial misconduct.”
During appellant’s defense, he recalled Officer Banuelos as a witness. He asked Banuelos whether he had spoken to the prosecutor about the facts of the case prior to the start of trial. Banuelos stated he had not, only that the prosecutor had told him what questions she would be asking. When asked whether he had spoken with the other officers and the district attorney “at the same time, ” Banuelos stated, “I didn’t talk about the case.”
Later that same day, defense counsel wished to call the prosecutor as a witness so that she could testify regarding her discussion with the officers the day before. Defense counsel claimed the testimony would go to the credibility of the officer’s testimony. The court noted that, while it had ruled that the witnesses be excluded from the courtroom and that they were not to discuss their testimony with each other, the conversation between the officers and the prosecutor occurred an hour and a half before testimony in the case began and appeared to be about “a point of law, not a point of fact.” Furthermore, the court reasoned, calling the prosecutor to the stand would preclude her from continuing on the case.
Defense counsel argued it would be relevant for the jury to know if the prosecutor and the witnesses were discussing the facts of the case prior to their testimony. Further, he argued, since the testimony of Officer Banuelos conflicted with that of attorney Collins, an evidentiary hearing involving the other officers who were present was necessary.
Officer Banuelos’s testimony was that he did not discuss the facts of the case with the other officers.
Officers Banta and Moran subsequently testified outside the presence of the jury regarding their pretestimony discussion with the prosecutor. Banta stated that he was sitting in the hallway of the courthouse with Moran, Lamb and Banuelos. Banta spoke to the prosecutor about one of the jurors being late, because Banta had child care issues. The prosecutor handed Banta a list of Vehicle Code violations and asked if any of them “r[a]ng a bell, ” and asked him to look through the list to see if any of the violations refreshed his memory. Banta then joked with his partner Moran, wondering whether driving the wrong direction on the shoulder of the road was considered passing.
Officer Moran testified that he was sitting with Banta and “intermittently” with Lamb and Banuelos. At one point, while waiting for a juror to arrive, the prosecutor explained that she would be asking him about specific Vehicle Code violations he had witnessed. The other officers were looking at a list the prosecutor provided them. Moran saw the list, but did not speak to the others about the list.
Following testimony at the hearing, defense counsel argued that it looked like the officers were “being coached as to what Vehicle Code violations occurred, ” and asked that Officers Moran and Banta be excluded from the trial because they had violated the trial court’s order. The trial court denied the request, finding that the discussion between the district attorney and her witnesses prior to trial “was not improper, ” and it then denied “[a]ll motions on that issue.”
Defense counsel then requested that he be able to question Officers Banta and Moran before the jury regarding the list of Vehicle Code violations they had discussed with the prosecutor. The court denied the request based on relevance and on Evidence Code section 352.
A. Did the trial court abuse its discretion when it denied appellant’s motion for mistrial and/or his motion to exclude witnesses?
Appellant contends that the trial court prejudicially erred in denying his mistrial motion following what he perceived to be misconduct on the part of the prosecutor. Appellant’s argument is that the prosecutor violated the court’s witness exclusion order when she had a discussion with the officer witnesses prior to trial. In the alternative, appellant argues that the trial court erred when it denied his motion to exclude the officer witnesses’ testimony for their violation of the same exclusion order. We find no prejudicial error.
Because the basis of appellant’s arguments is his belief that the prosecutor and officers violated the court’s order to exclude witnesses, we first address this issue. The exclusion of witnesses from the courtroom is a matter within the trial court’s discretion. (People v. Valdez (1986) 177 Cal.App.3d 680, 687.) Evidence Code section 777 provides in pertinent part that “the court may exclude from the courtroom any witness not at the time under examination so that such witness cannot hear the testimony of other witnesses.” The purpose of the order is to prevent tailored testimony and aid in the detection of less than candid testimony. (Geders v. United States (1976) 425 U.S. 80, 87.) “[I]mplicit in the right of the court to exclude witnesses is the right of the court to enforce its order.” (People v. Valdez, supra, at p. 691.)
Appellant relies on section 867 as the statutory basis for the exclusion of witnesses at trial, including the requirement that the court “shall … order the witnesses not to converse with each other until they are all examined.” But respondent contends, and we agree, that section 867 applies to preliminary hearings and not trial, and is inapplicable here. (People v. Hanson (1961) 197 Cal.App.2d 658, 665.)
Here, prior to trial, the trial court granted defense counsel’s motion to exclude the officer witnesses. Although the court did not specifically order that the witnesses not discuss their testimony amongst each other, it appears that that was the intent of the order, as evidenced by a later conversation between defense counsel and the court.
In any event, the evidence was that the conversation at issue took place prior to any testimony on the part of the officer witnesses. And, as noted by the trial court, the officers’ testimony was that they were responding to the prosecutor’s request to look over a list of possibly applicable Vehicle Code violations and not that they were discussing their testimony with each other. There was no evidence that the prosecutor’s discussion with the officers led any of them to give testimony different from what they otherwise would have given.
We find no abuse of discretion in the trial court’s finding that no violation of the court’s order occurred and, with this in mind, we address appellant’s contention that the trial court erred when it denied his mistrial motion. A trial court’s ruling denying a mistrial is reviewed for an abuse of discretion. (People v. Ayala (2000) 23 Cal.4th 225, 283.) A motion for mistrial “should be granted only when a party’s chances of receiving a fair trial have been irreparably damaged.” (Ibid.)
Appellant based his mistrial motion on prosecutorial misconduct.
“‘“[T]he applicable federal and state standards regarding prosecutorial misconduct are well established. ‘“A prosecutor’s … intemperate behavior violates the federal Constitution when it comprises a pattern of conduct ‘so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.’”’ [Citation.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves ‘“‘the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.’”’ [Citation.]”’ [Citation.]” (People v. Ayala, supra, 23 Cal.4th at pp. 283-284.)
Appellant claims that the prosecutor impermissibly coached the prosecution witnesses when she spoke to them prior to their testimony. His complaint is unsupported by the evidence. He bases his assertion on the fact that the prosecutor showed the officers “a list of moving violations” prior to trial, and that these violations were “crucial to the felony element of the current conviction.” Banta testified that the prosecutor handed him the list and asked if any of the violations “ring a bell.” Moran saw the list, but did not speak to the others about the list. Appellant does not explain how this constituted impermissible coaching, and we conclude that the complained of conduct did not amount to prosecutorial misconduct.
In any event, even were we to find that the prosecutor committed misconduct, we would not conclude that the trial court abused its discretion in denying the mistrial motion. Prosecutorial misconduct does not require a mistrial or reversal on appeal unless it subjects the defendant to prejudice. (People v. Batts (2003) 30 Cal.4th 660, 690; People v. Warren (1988) 45 Cal.3d 471, 480.)
We conclude the conduct complained of did not cause prejudice under any standard. Appellant was charged with violating Vehicle Code section 2800.2, which required a finding that appellant committed “three or more violations that are assigned a traffic violation point count under [Vehicle Code] Section 12810” while fleeing or attempting to elude a pursuing peace officer. (Veh. Code, § 2800.2, subd. (b).) The jury was instructed that the following traffic violations are each assigned a traffic violation point:
“One, Driving at a Speed Greater than 100 Miles Per Hour …. [¶] Two, Unlighted Lighting Equipment During Darkness …. [¶] Three, Failure to Stop at a Stop Sign …. [¶] Four, Unsafe Passing on the Right …. [¶] Five, Unlawful Right Turn …. Six, Unlawful Freeway Entry …. [¶] Seven, Driving on the Wrong Side of a Highway.… [¶] And eight, Failure to Use Required Turn Signal ….”
Even without the testimony of Banta and Moran, there was overwhelming evidence that appellant evaded officers in a high-speed chase, committing numerous referenced Vehicle Code violations in the process. Lamb testified to each of the Vehicle Code violations he witnessed, which corresponded to the testimony of the other officers, and was substantiated by the jury’s viewing of the DVD of the pursuit. The violations included failing to stop at several stop signs and driving the wrong way on the freeway. Furthermore, appellant himself admitted that, during the pursuit, the lights on the motorcycle were going “off and on, ” that he didn’t come to a complete stop at several stop signs, and that he got onto the freeway by using an off-ramp.
Appellant contends that, though Lamb apparently did not participate in the conversation with the other officers, it is likely he was exposed to the prosecution’s “suggested testimony.” Appellant’s inference is mere speculation and has no support in the record.
In sum, there was no misconduct, and even if there was, because there was no prejudice, the trial court did not abuse its discretion in denying appellant’s motion for mistrial.
Furthermore, we reject appellant’s contention that, at a minimum, the officers’ testimony should have been excluded.
“The violation of an exclusion order does not render the witness incompetent to testify nor does it furnish grounds to refuse permission to testify. In fact, to refuse to permit such a witness to testify would be error. The witness who violates the order of exclusion may be guilty of reprehensible conduct, and such witness may be punishable by contempt, and such conduct may affect the witness’ credibility, but it does not affect the admissibility of the evidence.” (People v. Tanner (1946) 77 Cal.App.2d 181, 187, citing People v. Duane (1942) 21 Cal.2d 71.)
Here, there was no violation of the exclusion order, and we find no abuse of discretion in the trial court’s denial of appellant’s request to exclude the officers’ testimony.
B. Did the trial court’s ruling denying appellant’s request to recall the officers to the stand regarding their pretrial conversation with the prosecutor abridge appellant’s right to present a defense?
Appellant contends that the trial court violated his statutory and constitutional rights to present a defense when it refused to allow appellant to recall Officers Banta and Moran to testify before the jury regarding their pretrial conversation with the prosecutor. Appellant argues that this testimony was relevant to impeach both the credibility of Banta and Moran, as well as to impeach Banuelos, who had earlier claimed on the stand that he did not discuss the case with other officers and the prosecutor. We disagree.
“Whether rooted directly in the Due Process Clause of the Fourteenth Amendment [citation], or in the Compulsory Process or Confrontation clauses of the Sixth Amendment [citations], the Constitution guarantees criminal defendants ‘a meaningful opportunity to present a complete defense.’” (Crane v. Kentucky (1986) 476 U.S. 683, 690.) As a general matter, however, the application of the ordinary rules of evidence does not impermissibly infringe on a defendant’s due process right to present a defense. (People v. Snow (2003) 30 Cal.4th 43, 90.) Indeed,
“[a] defendant’s right to present [even] relevant evidence is not unlimited, but rather is subject to reasonable restrictions. [Citations.] A defendant’s interest in presenting such evidence may thus ‘“bow to accommodate other legitimate interests in the criminal trial process.”’ [Citations.]” (United States v. Scheffer (1998) 523 U.S. 303, 308, fn. omitted.)
Evidence Code section 350 provides: “No evidence is admissible except relevant evidence.” Evidence Code section 210 defines relevant evidence as evidence “having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” The California Supreme Court has stated evidence is relevant if it “tends ‘logically, naturally, and by reasonable inference’ to establish material facts such as identity, intent, or motive.” (People v. Garceau (1993) 6 Cal.4th 140, 177, disapproved on another ground in People v. Yeoman (2003) 31 Cal.4th 93, 117.) “The trial court has broad discretion in determining the relevance of evidence [citations], but lacks discretion to admit irrelevant evidence. [Citations.]” (People v. Crittenden (1994) 9 Cal.4th 83, 132.)
The trial court also has broad discretion to limit the introduction of evidence that, while it may be relevant, is of limited probative value. (Evid. Code, § 352.) A trial court’s determination whether evidence is relevant or has sufficient probative value to be admitted is reviewed for an abuse of discretion. (People v. Sanders (1995) 11 Cal.4th 475, 554-555; People v. Jennings (2000) 81 Cal.App.4th 1301, 1314.) We reverse only if the trial court’s ruling was “‘arbitrary, whimsical, or capricious as a matter of law. [Citation.]’” (People v. Branch (2001) 91 Cal.App.4th 274, 282.)
We conclude first that the exclusion of the officers’ testimony did not violate appellant’s constitutional right to present a defense. As we have noted above, the application of ordinary rules of evidence does not impermissibly infringe a defendant’s constitutional right to present a defense. (People v. Snow, supra, 30 Cal.4th at p. 90.) Appellant was not denied the opportunity to present his defense. Officers Banta and Moran both testified in the prosecution’s case-in-chief that they observed appellant commit numerous Vehicle Code violations during the course of the pursuit. But while defense counsel cross-examined Banta, he chose not to cross-examine Moran. In addition, appellant testified in his own defense.
If the trial court was correct in ruling the proffered additional testimony irrelevant, then obviously no constitutional error occurred. If, instead, the trial court erred in that conclusion, it is nonetheless true that appellant was allowed to present his defense. That he was not allowed to support that defense with the additional testimony of the officers simply did not rise to the level of a constitutional violation. (Cf. People v. Fudge (1994) 7 Cal.4th 1075, 1103 [excluding defense evidence on a minor or subsidiary point does not impair an accused’s due process right to present a defense].)
Second, we conclude that the trial court was correct in ruling the proffered evidence inadmissible. Banuelos testified that he did not discuss the case with the other officers and the prosecutor “at the same time.” Instead, he claimed only that the prosecutor told him what questions she would ask him on the stand. According to their testimony at the hearing, the additional testimony of Banta and Moran would have shown, at most, that the prosecutor gave them a list of possible Vehicle Code violations which would help to prove the substantive offense. Neither said that he had had a discussion with Banuelos.
We do not see how this additional evidence would have impeached the officers. Particularly because appellant admitted at trial that he committed numerous Vehicle Code violations during the pursuit and the gravamen of his defense was that he committed those violations because he was afraid to stop in an isolated area due to “previously bad experiences with officers.”
We also agree with the trial court that any such testimony would likely have confused the issues for the jury. (People v. Price (1991) 1 Cal.4th 324, 412 [“[T]he trial court has discretion to exclude impeachment evidence … if it is collateral, cumulative, confusing, or misleading”].)
C. Did the prosecutor violate the court order to exclude witnesses?
Appellant makes an additional argument, similar to that made above, that the prosecutor committed misconduct when she discussed the case with the officers prior to their testimony. However, having found that the prosecutor did not commit prejudicial misconduct in the context of addressing appellant’s mistrial motion, we need not address this issue further. We therefore reject appellant’s contention.
D. Did the trial court err when it denied appellant’s request to call the prosecutor as a witness?
Appellant contends that the trial court erred when it denied his request to call the prosecutor as a witness, claiming it was relevant to the credibility of the officer’s testimony concerning their “pre-testimony” conversations. We disagree.
In People v. Garcia (2000) 84 Cal.App.4th 316 (Garcia), which was cited by the trial court below, the defendant sought to call the prosecutor as a percipient witness because he was present at interviews conducted with various witnesses. The defendant argued that the prosecutor was acting as an investigating police agent when he conducted an interview of an officer, and therefore was an indispensible witness. The defendant then requested that the prosecutor be called as a witness in order to examine why he failed to produce certain discovery. (Id. at p. 332.)
The appellate court in Garcia found no error, stating that, “[o]nly in extraordinary circumstances should an attorney in an action be called as a witness, and before the attorney is called, defendant has an obligation to demonstrate that there is no other source for the evidence he seeks.” (Garcia, supra, 84 Cal.App.4th at p. 332.) The interview to which the defendant objected was conducted by the prosecutor in the presence of an investigator, it was taped, and the tape was provided to the defendant. (Ibid.)
Here, appellant argues that it was his intent that the trial court question the prosecutor outside of the presence of the jury during the mistrial motion. But he also argues that the trial court erred in not allowing appellant to call the prosecutor to the stand before the jury because the situation was “extraordinary, ” as contemplated in Garcia, supra, 84 Cal.App.4th at page 332.
We agree with respondent that, regardless of whether appellant’s intent was to call the prosecutor with or without the jury present, any error was harmless under either People v. Watson (1956) 46 Cal.2d 818, 836, or Chapman v. California (1967) 386 U.S. 18, 24. The fact that the prosecutor had a conversation with the officers prior to their testimony was harmless beyond a reasonable doubt. Appellant’s defense was not that he did not commit the traffic violations. In fact he admitted that he committed all of the violations that the officers testified too, except that he did not specifically state that he was traveling over 100 miles per hour. Instead, his defense was that he was fearful of the officers and was attempting to find a less isolated location to stop.
II. Admission of Photographs
Appellant contends that the trial court abused its discretion in admitting numerous photographs without a proper foundation. He contends that the trial court did not properly determine who took the photographs and whether the contents of the photographs were composites. We disagree.
At the beginning of trial, appellant moved to exclude photographs—exhibits 9-25 depicting the pursuit route—because they had been taken “in daylight” a year or more after the subject incident. Appellant argued that the conditions of the route may have changed and they did not “accurately depict what was present on the evening of the incident.” The prosecutor acknowledged that the photographs were taken “later” and “during daylight, ” but noted they would be used only to show the intersections involved and that the signage depicted had not changed. The trial court overruled the motion, finding that any changes could be explained to the jury and, if the photographs were received into evidence, the jury could place the appropriate weight on them “depending on their analysis of the circumstances surrounding those photographs being taken.”
At trial, the prosecutor presented the testimony of Officer Lamb regarding the photographs. Lamb, who had 28 years of local law enforcement experience, 10 of which he had spent working as a flight officer “flying over Fresno, ” testified he was familiar with the streets that appellant travelled, as well as the signage present on those streets when the pursuit occurred. The trial court found that Lamb “does know those streets clearly” and that the photographs accurately depicted how the locations appeared at the time of the pursuit.
“The general rule is that photographs are admissible when it is shown that they are correct reproductions of what they purport to show. This is usually shown by the testimony of the one who took the picture. However, this is not necessary and it is well settled that the showing may be made by the testimony of anyone one who knows that the picture correctly depicts what it purports to represent. [¶] The essential element is that it be shown in some way that the picture does correctly depict what it purports to show, in other words that it be verified or authenticated as a genuine picture of what it purports to depict.” (People v. Doggett (1948) 83 Cal.App.2d 405, 409-410.)
Because Lamb was very familiar with the streets in question, and because he testified that the photographs depicted what they purported to represent, we cannot see that the trial court abused its discretion in admitting the photographs. (People v. Lucas (1995) 12 Cal.4th 415, 466 [trial court’s finding that sufficient facts presented to support admissibility is reviewed for abuse of discretion].)
III. Prior Strike Convictions
Appellant contends the trial court abused its discretion, or in the alternate was unaware of its discretion, when it failed to dismiss one or both of his prior strike convictions pursuant to section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero), thereby violating his federal due process rights. Specifically, appellant claims that the trial court relied on the wrong standard in exercising its discretion because it focused on appellant’s strikes and criminal history and failed to note that the instant crime was neither serious nor violent, resulted in no property damage or injury to others, and that appellant had not been involved in any violent crimes “for a substantial period of time.” We disagree.
Section 1385 grants trial courts the discretion to dismiss a prior strike conviction if the dismissal is in the furtherance of justice. (§ 1385, subd. (a); Romero, supra 13 Cal.4th at pp. 529-530.) In deciding whether to dismiss a prior strike conviction, the trial court “must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.” (People v. Williams (1998) 17 Cal.4th 148, 161.)
The trial court’s decision not to dismiss a prior strike conviction is reviewed under the deferential abuse of discretion standard. (People v. Carmony (2004) 33 Cal.4th 367, 374.) An abuse of discretion is established by demonstrating the trial court’s decision is “irrational or arbitrary. It is not enough to show that reasonable people might disagree about whether to strike one or more of [the defendant’s] prior convictions.” (People v. Myers (1999) 69 Cal.App.4th 305, 310.) When the record shows the trial court considered relevant factors and acted to achieve legitimate sentencing objectives, the court’s decision will not be disturbed on appeal. (Ibid.)
At the sentencing hearing, the trial court stated that it had read and considered, inter alia, appellant’s motion to dismiss the prior strike convictions, as well as the People’s opposition to the motion. In support of the motion, defense counsel argued that, while the crime committed by appellant “had the potential, very great potential, of causing injury and people getting injured, hurt or even killed, ” it was not a “crime of violence.” He argued further that he did not believe appellant was the type of individual who would “fall under the Three Strikes Law” because his last strike occurred in 1997.
The trial court denied appellant’s motion, stating:
“[Appellant] is 41 years old. He has in the last 20 years apparently used four different names, … four different dates of birth and four different Social Security numbers. [¶] When he was 20 years old he was convicted of a misdemeanor violation of Vehicle Code section 10851, subdivision (a), and placed on probation. [¶] He was also convicted of first degree robbery with use of a handgun, a felony conviction, and he received … two years in state prison for that offense. [¶] … [¶] When he was 21 years old he was convicted of a felony violation of section 664/10851, subdivision (a), of the Vehicle Code. [¶] … [¶] When he was 29 years old he was convicted of second degree robbery with use of a handgun.… It was a residential robbery … in which … [five people] were victimized. [¶] [A]nd he received five years in state prison. [¶] So when he was out of prison in 2003 at the age of 35 he received a misdemeanor conviction for a 14601.1. [¶] On March 2nd, 2006, he engaged in the acts that gave rise to the conviction in this case. The Court heard those facts twice because this jury trial occurred twice. And they involved extreme high speeds on a motorcycle, violation of multiple Vehicle Code regulations, including driving the wrong way on the freeway, endangering the lives of other people on the roads. [¶] According to the Probation Department, he then bailed out of jail on this case and in July of that same year four months later did the same thing in Alameda County, felony violation of section 2800.2, subdivision (a). He was convicted in that county and sent to prison before he was brought back to this county for … trial and sentencing in this case. [¶] He was on misdemeanor probation when he committed this crime. [¶] … [¶] His criminal record has been ongoing and consistent for his entire adult life and even into his late 30s, which is how old he was when this crime was committed. He continues to commit crimes. [¶] The Court does not find that [appellant] is outside the law that was enacted by our legislators commonly known as the Three Strikes Law and denies the motion under Romero to strike either one of the prior strikes.”
From this record it is clear that the trial court was well aware of its discretion and that it carefully reviewed the particulars of appellant’s criminal record, including his current offense, his character, and his prospects. (People v. Williams, supra, 17 Cal.4th at p. 161.) We therefore reject appellant’s contention that the trial court abused its discretion when it denied his motion to dismiss one or both of his prior strike convictions. We further reject his contention that the trial court’s denial of his Romero motion without the proper use of its discretionary power violated appellant’s federal due process rights. The court properly denied appellant’s Romero motion, and in doing so, did not violate appellant’s federal due process rights.
IV. Wobbler
A violation of Vehicle Code section 2800.2, subdivision (a) is characterized as a “wobbler, ” and may be punished, in the trial court’s discretion, as either a misdemeanor or a felony. Even in cases involving prior strike allegations, the trial court has discretion to determine whether a wobbler crime is a misdemeanor or felony: “[W]e hold that three strikes prior convictions do not preclude a trial court from reducing an offense originally charged as a felony either by imposing a misdemeanor sentence (§ 17(b)(1)) or by declaring it a misdemeanor upon a grant of probation (§ 17(b)(3)).” (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 979 (Alvarez).)
If a violation of Vehicle Code section 2800.2, subdivision (a) is determined to be a misdemeanor, the maximum punishment is one year in custody; if it is determined to be a felony, the punishment is one year in state prison. However, because the trial court determined that appellant had been convicted of two prior strikes, it sentenced him under the three strikes law to prison for 25 years to life. Appellant contends that the trial court was unaware of its discretion under section 17, subdivision (b) to reduce his felony conviction to a misdemeanor, requiring remand for resentencing. We disagree.
The decision whether to reduce a wobbler offense to a misdemeanor lies in the discretion of the trial court. (Alvarez, supra, 14 Cal.4th at p. 977.)
“‘The 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.’” (Alvarez, supra, at pp. 977-978.)
To meet this burden, the appellant must “affirmatively demonstrate that the trial court misunderstood its sentencing discretion.” (People v. Davis (1996) 50 Cal.App.4th 168, 172; see, e.g., People v. Metcalf (1996) 47 Cal.App.4th 248, 251-252 [court believed it lacked discretion to strike a prior felony conviction].) If the record is silent, the appellant has failed to sustain his or her burden of proving error and we affirm. (People v. Davis, supra, at p. 172.)
There is no indication here that the trial court was not fully aware of its discretion to reduce the felony to a misdemeanor. Furthermore, the trial court’s statements during its denial of appellant’s Romero motion to strike his prior convictions clearly indicate it had no inclination to reduce appellant’s current conviction to a misdemeanor. Factors relevant in determining whether to reduce a felony to a misdemeanor in three strikes circumstances include, “‘the nature and circumstances of the offense, the defendant’s appreciation of and attitude toward the offense, or his traits of character as evidenced by his behavior and demeanor at the trial.’ [Citations.]” (Alvarez, supra, 14 Cal.4th at p. 978.) The trial court described appellant’s current crime as one which involved “extreme high speeds on a motorcycle, violation of multiple Vehicle Code regulations, including driving the wrong way on the freeway, endangering the lives of other people on the roads.”
Furthermore, in determining whether to reduce a wobbler originated as a three strike filing to a misdemeanor, “the current offense cannot be considered in a vacuum; given the public safety considerations underlying the three strikes law, the record should reflect a thoughtful and conscientious assessment of all relevant factors including the defendant’s criminal history.” (Alvarez, supra, 14 Cal.4th at p. 979.) Appellant’s criminal history, which the trial court described as “ongoing and consistent, ” was the chief factor in the court’s denial of appellant’s Romero motion and in the court’s determination that appellant fell within the spirit of the three strikes law.
Appellant has failed to affirmatively demonstrate that the trial court was unaware of its discretion under section 17, subdivision (b), and we reject his claim to the contrary.
V. Cruel and/or Unusual Punishment
Finally, appellant contends that the imposition of an indeterminate third strike term of 25 years to life for his current conviction is grossly disproportionate, constituting cruel and/or unusual punishment in violation of the United States and California Constitutions. We will affirm.
The purpose of the three strikes law is not to subject a criminal defendant to a life sentence merely on the basis of the latest offense. Rather, the purpose is to punish recidivist behavior. (People v. Diaz (1996) 41 Cal.App.4th 1424, 1431; People v. Kinsey (1995) 40 Cal.App.4th 1621, 1630-1631.) Habitual offender statutes have withstood constitutional scrutiny based on assertions of cruel and unusual punishment, as well as claims of a disproportionate sentence. (See People v. Ayon (1996) 46 Cal.App.4th 385, 398-400, disapproved on other grounds in People v. Deloza (1998) 18 Cal.4th 585, 593-595, 600, fn. 10.)
Appellant argues that the instant offense was “non-violent” and therefore the sentence imposed is grossly disproportionate to the crime. What appellant fails to consider is that his crime could very well have caused a great deal of violence. In any event, “society’s interest in deterring criminal conduct or punishing criminals is not always determined by the presence or absence of violence. [Citations.]” (People v. Cooper (1996) 43 Cal.App.4th 815, 826.)
Moreover, appellant is being punished not merely for the current offense but also because of his recidivism. (People v. Romero (2002) 99 Cal.App.4th 1418, 1432.) In evaluating the facts set forth in In re Lynch (1972) 8 Cal.3d 410, appellant’s sentence is not so disproportionate to the crime that it shocks the conscience, and it does not violate the state constitutional prohibition against cruel or unusual punishment. (See People v. Stone (1999) 75 Cal.App.4th 707, 715; People v. Martinez (1999) 71 Cal.App.4th 1502, 1510-1517; People v. Cline (1998) 60 Cal.App.4th 1327, 1337-1338; People v. Cooper, supra, 43 Cal.App.4th at pp. 825-828.) An overview of appellant’s criminal record illustrates that neither increased penalties nor age has deterred him from committing more crimes.
In addition, appellant cannot demonstrate that his sentence violates the prohibition against cruel and unusual punishment contained in the federal Constitution. (Lockyer v. Andrade (2003) 538 U.S. 63, 66-67, 77 (Andrade); Ewing v. California (2003) 538 U.S. 11, 29-31 (Ewing); People v. Cooper, supra, 43 Cal.App.4th at pp. 820-825.) In Ewing, the United States Supreme Court held that the cruel and unusual punishment clause of the federal Constitution contains a narrow proportionality principle that prohibits grossly disproportionate sentences. (Ewing, supra, at p. 23.) The court upheld a 25-year-to-life sentence under the three strikes law for a defendant with prior burglary and robbery convictions who shoplifted three golf clubs. (Id. at pp. 17-18, 29-31; see also Andrade, supra, at pp. 66-68, 77 [two consecutive terms of 25 years to life under three strikes law for thefts of videotapes not grossly disproportionate].)
Appellant contends his situation is similar to that addressed in People v. Carmony (2005) 127 Cal.App.4th 1066, where the court found a third strike sentence of 25 years to life imposed for the defendant’s failure to reregister as a sex offender violated both the federal and state constitutional prohibitions against cruel and/or unusual punishment. In doing so, the court emphasized that the defendant had in fact registered, and his failure to reregister was a purely technical violation with no practical effect. (Id. at p. 1078.) “Here, there 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.) “Because a 25-year recidivist sentence imposed solely for failure to provide duplicate registration information is grossly disproportionate to the offense, shocks the conscience of the court and offends notions of human dignity, it constitutes cruel and unusual punishment under both the state and federal Constitutions.” (Ibid.) The court specifically declined to consider “the appropriateness of a recidivist penalty where the predicate offense does not involve a duplicate registration.” (Id. at p. 1073, fn. 3.)
In contrast to People v. Carmony, supra, 127 Cal.App.4th 1066, appellant’s conviction in the instant case was not a technical violation of the law that “served no stated or rational purpose.” (Id. at p. 1073.) Appellant’s case is clearly within the parameters set by Ewing and Andrade. As in those cases, “[i]f terms of 25 years to life and 50 years to life are not ‘“grossly disproportionate”‘ for petty theft with prior felony convictions, ” then the indeterminate term imposed here is not grossly disproportionate to the offense of driving in willful or wanton disregard for safety of persons or property while fleeing from pursuing police officers, given appellant’s long criminal history of prior strike convictions, incarcerations, parole violations, as well as being on misdemeanor probation when he committed the instant offense. (People v. Em (2009) 171 Cal.App.4th 964, 977; see Andrade, supra, 538 U.S. at p. 77; Ewing, supra, 538 U.S. at pp. 28-30; People v. Romero, supra, 99 Cal.App.4th at pp. 1432-1433.)
DISPOSITION
Judgment is affirmed.
WE CONCUR: KANE, J., POOCHIGIAN, J.