Opinion
A130624
12-19-2012
THE PEOPLE, Plaintiff and Respondent, v. TIMOTHY JOSEPH TIBE, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Sonoma County Super.
Ct. No. SCR580593)
Timothy Joseph Tibe (appellant) appeals from a judgment of conviction entered after a jury found him guilty of residential burglary (Pen. Code, § 459 ) and found true an allegation that he had suffered a prior felony conviction. He contends: (1) the trial court incorrectly instructed on the burglary charge; (2) the court erred in permitting testimony about a prior burglary; (3) there was cumulative error; (4) an enhancement under section 667, subdivision (a)(1), resulted from vindictive prosecution and must be stricken; (5) there was insufficient evidence to prove he suffered a prior felony conviction; and (6) the court abused its discretion in refusing to strike the prior strike, rendering the sentence in violation of the prohibition against cruel and unusual punishment. We reject the contentions and affirm the judgment.
All further statutory references are to the Penal Code unless otherwise stated.
F ACTUAL AND P ROCEDURAL B ACKGROUND
An information was filed May 24, 2010, charging appellant with residential burglary (§ 459). The information also alleged that appellant had suffered a prior conviction that was a serious felony (§ 667, subd. (a)(1)) and a strike (§ 1170.12).
May 2, 2009 incident
At a jury trial, the prosecution first presented testimony from Sebastopol police officer Jacques Levesque regarding a prior incident involving appellant. Levesque testified that on May 2, 2009, he spoke to David Stohlmann, a pastor at a local church, and Todd Smith, a church employee. Stohlmann told Levesque that his keys to the church, which he usually kept on a wall hook in his office, were missing. Smith told Veseque that several items were missing from the church, including an audio transceiver, four radios with charging stands, and a tape deck. As Levesque began investigating the matter, Smith called again to report that a man, who he later identified as appellant, had tried to enter the church by inserting several keys into the lock. Smith took possession of the keys and asked appellant where he had gotten them. Appellant said he had found the keys in the parking lot.
Levesque searched for and contacted appellant based on the description of appellant Smith had given. Appellant told Levesque that he was not involved in any theft at the church but admitted being at the church earlier in the day. Appellant said he had found some keys in the parking lot and was trying to see if they fit in the lock so that he could return them to the church if they belonged to the church. Levesque searched appellant's tent and found a handheld radio similar to the one reported stolen by Smith. Levesque asked appellant to return the other stolen property to the police department. Appellant brought three radios and radio chargers to the police department that evening. Smith identified the items as belonging to the church.
February 12, 2010 incident
Jose Tamayo Martinez testified that in February 2010, he was living in a studio apartment in Sebastopol with a roommate, Arturo Gonzales Cabrera. Martinez usually closed the door to his apartment but kept it unlocked. He owned three trucks, including a Toyota 4Runner that he parked in a parking spot in front of his apartment. He had kept the Toyota truck unlocked for a year to a year and a half, ever since someone broke the glass on the passenger side window. At approximately 1 p.m. on February 12, 2010, Martinez was working, cleaning the outside of the building in a shopping center that was located next to his apartment. It was raining that day. He walked past his Toyota truck and noticed appellant sitting inside. Martinez had no idea why appellant was sitting inside the truck and had not given him permission to do so. Martinez told appellant to get out of the truck.
Later that day, Martinez returned to his apartment and noticed a Canadian five dollar bill and a Canadian one dollar bill on the floor just outside of his bedroom. The bills had not been on the floor when he left for work that morning. He also noticed that a drawer under his bed, a drawer in a cabinet next to Cabrera's bed, and another door to a cabinet that contained antiques, were all open.
Martinez had worked at the same place since 1985 and had seen appellant in the area on prior occasions. He had also seen appellant at a big shopping center and the two had exchanged greetings. On that occasion, Martinez said to appellant, "come to see me. I'll help you," but appellant never showed up. Martinez was never really friends with appellant and had never given him permission to be inside his apartment.
Martinez's roommate, Arturo Gonzales Cabrera, testified he owned a flashlight and a tape recorder, both of which he kept inside a drawer next to his bed. He kept the drawer closed. When he returned to his apartment on February 12, 2010, he discovered that the tape recorder and flashlight were missing from his drawer. Later, a police officer showed him a flashlight, which he recognized as his. Cabrera had seen appellant in a McDonald's restaurant where Cabrera used to work. He had never given appellant permission to come into his apartment or take his flashlight.
Cabrera's aunt, Imelda Santa Cruz, testified she went to visit Cabrera at his apartment on February 12, 2010. As she walked down the hallway to the front door of the apartment, Santa Cruz was startled to see appellant walking out of the apartment. The front door was open and one of appellant's hands was on the doorknob closing the front door; in his other hand were some items. Santa Cruz could not see the items clearly but noticed appellant was holding a black object about the size of a Kleenex box and a small flashlight. Appellant looked at Santa Cruz and said, "don't try to enter because . . . they'll arrest you." Santa Cruz just stood there looking at appellant. Appellant walked away, leaving the door to the apartment open. Appellant then entered Martinez's truck and sat inside, grabbed a bag, and began putting the items that were in his hand in the bag. Santa Cruz went looking for Cabrera but could not find him.
Sebastopol police officer Maria Pennacchio testified that during her investigation of the burglary, Cabrera told her that a flashlight was missing from his apartment. Pennacchio questioned appellant, who said he was in the area of the apartment on February 12, 2010. He also admitted he was in Martinez's truck but said Martinez had given him permission to go inside the truck when it rained. As Pennacchio was talking to appellant, she noticed he was carrying a black flashlight that looked similar to the flashlight Cabrera had described to her. Pennacchio seized the flashlight from appellant.
Mark Sell testified for the defense. He testified he was the president of Sebastopol Hardware Center and had known appellant for six or seven years. Appellant came into the store periodically whenever he needed money or a store product, and Sell would hire him to detail cars in exchange for money or products. Appellant asked Sell for flashlights about twice a year. If appellant wanted a flashlight, he could "probably" get one from Sell.
The jury found appellant guilty of first degree burglary and found he had suffered a prior felony conviction. The trial court sentenced appellant to nine years in state prison, consisting of the low term of four years for first degree burglary and five years for his prior felony conviction.
DISCUSSION
1. Jury instruction
a. Background
The trial court instructed the jury on the elements of burglary with CALCRIM No. 1700: "The defendant is charged with residential burglary in violation of Penal Code section 459. To prove that the defendant is guilty of this crime the People must prove that, number one, the defendant entered a building; and, number two, when he entered a building he intended to commit theft. To decide whether the defendant intended to commit theft, please refer to the separate instructions that I will give you on that crime. [¶] A burglary was committed if the defendant entered with the intent to commit theft. The defendant does not need to actually have committed theft, as long as he entered with the intent to do so. The People do not have to prove that the defendant actually committed theft."
After it began deliberations, the jury sent a note to the court with the following question: "If a person enters a building without the intent to steal but does leave stealing - is that [first degree] burglary?" The court stated it intended to refer the jurors to CALCRIM No. 1700, and the prosecution agreed. Defense counsel stated, "I feel that they have that instruction, and they're confused by it." The court stated the jury may be confused because CALCRIM No. 1700 states, "To decide whether the defendant intended to commit theft, please refer to the separate instruction that I will give you on [that crime]," yet the court had not provided the jury with an instruction defining theft. The court stated it had a sua sponte duty to provide a theft instruction. Defense counsel asked the court not to give an additional theft instruction. She stated she believed the jury was confused with the word "and" in CALCRIM No. 1700 and asked the court to instruct the jury that the word "and" " 'means that No. 1 and 2 [entry and the intent to steal] must occur at the same time.' " The court responded that the word "and" was not in need of further definition, and that it was going to refer the jury back to CALCRIM No. 1700 and read a theft instruction. The court discussed a proposed theft instruction with the parties, asked defense counsel whether she had seen the proposed instruction, then asked, "Does that meet with your approval?" Counsel responded, "Yes." The court reread CALCRIM No. 1700 to the jury, then gave the following theft instruction: "To decide whether the defendant intended to commit theft as set forth in instruction 1700, the People must prove that, No. 1, the defendant took possession of property owned by someone else. [¶] No. 2, the defendant took the property without the owner's consent. [¶] No. 3, when the defendant took the property, he intended to deprive the owner of it permanently and to remove it from the owner's possession for so extended a period of time that the owner would be deprived of a major portion of the value or enjoyment of the property. [¶] And, No. 4, the defendant moved the property even a small distance and kept it for any period of time however brief."
b. Discussion
When a jury asks a question after retiring for deliberation, "[s]ection 1138 imposes upon the court a duty to provide the jury with information the jury desires on points of law." (People v. Smithey (1999) 20 Cal.4th 936, 985 [fn. omitted].) In responding to the jury's question, "a court must do more than figuratively throw up its hands and tell the jury it cannot help. It must at least consider how it can best aid the jury. It should decide as to each jury question whether further explanation is desirable, or whether it should merely reiterate the instructions already given." (People v. Beardslee (1991) 53 Cal.3d 68, 97; see also People v. Ardoin (2011) 196 Cal.App.4th 102, 128 ["the court must attempt 'to clear up any instructional confusion expressed by the jury.' [Citation.]' [Citation.]") " 'Where the original instructions are themselves full and complete, the court has discretion under section 1138 to determine what additional explanations are sufficient to satisfy the jury's request for information.' [Citation.]" (People v. Eid (2010) 187 Cal.App.4th 859, 882.) We review the court's decision for an abuse of discretion. (Ibid.)
Appellant asserts the court's response to the jury's question was improper because "the simple, correct answer to the jury's query should have been 'no[.]' " We disagree. Although the court "has a primary duty to help the jury understand the legal principles it is asked to apply," "[t]his does not mean the court must always elaborate on the standard instructions." (People v. Beardslee, supra, 53 Cal.3d at p. 97.) Here, the court gave the jury a burglary instruction that stated "the People must prove that: [¶] 1. The defendant entered a building; [¶] AND [¶] 2. When he entered a building, he intended to commit theft." (Italics added.) The instruction also stated, "A burglary was committed if the defendant entered with the intent to commit theft. The defendant does not need to have actually committed theft as long as he entered with the intent to do so." (Italics added.) Because the burglary instruction answered the jury's question regarding whether appellant must have had the intent to commit theft at the time of entry, the court was not required to provide any additional explanation. The court did not abuse its discretion by not responding to the jury's question with a simple "no."
Appellant also takes issue with certain language the court used in the theft instruction it gave in response to the jury's question. Appellant acknowledges "the court was right to include [a] theft instruction," and that the elements of theft were correctly stated. However, he argues the court confused the jury by prefacing the theft instruction with the following language: " 'To decide whether the defendant intended to commit theft as set forth in instruction 1700, the People must prove . . .' " He asserts this language "effectively advised the jury that if [he] actually committed theft, then he committed burglary, [regardless] of when intent to steal was formed . . . ."
Appellant is correct that it was proper for the court to give a theft instruction. (See People v. Hughes (2002) 27 Cal.4th 287, 349 [in instructing the jury regarding burglary, the court has a sua sponte duty to define the elements of the underlying offense].)
Appellant did not object to the specific language the court used when it instructed the jury regarding the elements of theft. In fact, defense counsel affirmatively stated she approved of the language when asked by the court. Accordingly, insofar as appellant argues the language used in the theft instruction confused the jury, he forfeited the contention by failing to object. (See People v. Hillhouse (2002) 27 Cal.4th 469, 503 [a party may not argue on appeal that an instruction needed clarification, without first having requested such clarification below]; People v. Medina (1990) 51 Cal.3d 870, 901-902 [if a defendant wanted the court to provide the jury with a particular type of response to the jury's question, he should have proposed it below].)
As noted, the court asked defense counsel whether she had seen the proposed theft instruction, then asked her, "Does that meet with your approval?" Counsel responded, "Yes."
In any event, the claim is without merit. Were we to review the theft instruction as given in isolation, we might agree that the court would have been better off simply instructing on the elements of theft, rather than adding its own introductory language. (See People v. Beardslee, supra, 53 Cal.3d at p. 97 [stating the general proposition that "comments diverging from the standard are often risky"].) However, " ' "[i]n determining whether error has been committed in giving [particular] instructions, we must . . . assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given." [Citation.]' " (People v. Martin (2000) 78 Cal.App.4th 1107, 1111, quoting People v. Yoder (1979) 100 Cal.App.3d 333, 338.) We ask whether there is a "reasonable likelihood" the jury misunderstood the instructions in the manner suggested by the defendant. (People v. Clair (1992) 2 Cal.4th 629, 662-663.) " 'Instructions should be interpreted, if possible, so as to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation.' [Citation.]" (People v. Martin, supra, 78 Cal.App.4th at p. 1112.)
Applying the above principles, we conclude it was not reasonably likely the jury misinterpreted the theft instruction to mean that appellant was guilty of burglary as long as he committed theft, regardless of when he formed the intent to commit that theft. The theft instruction was silent as to the timing of when the intent to commit theft must be formed for appellant to be found guilty of burglary; it did not state that the intent could be formed at any time, as appellant asserts. Further, the burglary instruction the court gave stated in three places, in three different ways, that appellant must have had the requisite intent at the time he entered the apartment. The court reread that instruction in response to the jury's question, and we will presume the jury was capable of understanding the instruction, as well as seeking further clarification if necessary.
2. Prior Offense
Appellant contends the trial court erred in permitting testimony about the prior burglary that occurred at the church on May 2, 2009 (the church burglary). We disagree.
Evidence of a defendant's other misconduct is inadmissible to prove the defendant's propensity to commit the charged crime. (Evid. Code, § 1101, subd. (a); see also People v. Ewoldt (1994) 7 Cal.4th 380, 393.) However, such evidence is admissible when relevant to establish some fact "such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident . . . ." (Evid. Code, § 1101, subd. (b); People v. Ewoldt, supra, 7 Cal.4th at p. 393 [evidence of prior misconduct was relevant to show common design or plan].) The admissibility of evidence of other crimes depends on three principal factors: (1) the materiality of the fact sought to be proved or disproved; (2) the tendency of the uncharged crime to prove or disprove the material fact; and (3) the existence of any rule or policy requiring the exclusion of relevant evidence, e.g., Evidence Code section 352. (People v. Sully (1991) 53 Cal.3d 1195, 1224.)
Evidence Code section 352 provides: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
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The least degree of similarity between the charged offense and the prior offense is required to prove intent; a greater degree of similarity is required to prove the existence of a common design or plan; the greatest degree of similarity is required to prove identity. (People v. Ewoldt, supra, 7 Cal.4th at pp. 402-403.) To be relevant on the issue of intent, the prior crime need only be "sufficiently similar [to the charged offenses] to support the inference that the defendant ' "probably harbor[ed] the same intent in each instance." [Citations.]' [Citation.]" (Id. at p. 402.) The trial court has wide discretion in deciding the relevance and admissibility of evidence. (People v. Kipp (1998) 18 Cal.4th 349, 369.) "On appeal, the trial court's determination of this issue, being essentially a determination of relevance, is reviewed for abuse of discretion." (Ibid.)
Here, the prosecution moved to admit two prior burglaries to prove appellant's specific intent to steal when he entered the building. The first incident occurred in 1986 and the second incident was the church burglary of May 2, 2009. The court excluded the 1986 burglary under Evidence Code section 352 but admitted the 2009 burglary, stating: "As to the evidence about the conduct on May 2nd, 2009, it appears to the Court that the conduct itself by the defendant would be admissible as to the intent, but his statement would not. I understand that he's later found at some point in time . . . in a tent encampment area, . . . and questioned about the situation, at which time the defendant said something to the effect of, of course I steal. It's how I survive, or something close to that. . . . [¶] . . . [¶] As to the conduct itself, it appears that it would be admissible and, thus, I'm not going to sustain the objections raised by the defense as to the conduct."
Appellant asserts the church burglary was "entirely irrelevant" because he "denied committing the crime at [Martinez's] apartment, so that specific intent was not significantly at issue." Burglary, however, is a specific intent crime (People v. Wallace (2008) 44 Cal.4th 1032, 1077), and appellant's not guilty plea put his specific intent in issue (see People v. Balcom (1994) 7 Cal.4th 414, 422 [a plea of not guilty puts in issue all of the elements of the charged offenses]). Appellant also argues the two burglaries were "distinctly different" and had "no logical connection" to each other. However, the church burglary occurred less than one year before the charged offense occurred. In both cases, minor items were stolen. A witness in the church burglary saw appellant at the door to the church attempting to enter, and in the charged burglary, a witness saw appellant at the door to the apartment just walking out. In both cases, appellant admitted to being in the area but gave implausible explanations as to what he was doing there, and denied being involved in any theft. In both cases, he was found in possession of the stolen property. Evidence of the church burglary was properly admitted because the two burglaries were "sufficiently similar to support the inference that the defendant ' "probably harbor[ed] the same intent in each instance." [Citations.]' [Citation.]" (People v. Ewoldt, supra, 7 Cal.4th at p. 402.)
Appellant also asserts that evidence of the church burglary should have been excluded under Evidence Code section 352 because "[t]he burglary of a church is a particularly heinous type of crime guaranteed to inflame the minds of many jurors." Although some prejudice is inherent whenever evidence of other crimes is admitted, (see People v. Kipp, supra, 18 Cal.4th at p. 372), there was nothing about the church burglary that made it "particularly heinous" or "highly inflammatory" as appellant asserts. As noted, only minor items were stolen. Appellant did not physically harm anyone. He cooperated with police by promptly returning the remaining stolen items as requested by police after one of the stolen items was found in his tent. If anything, the church burglary may have been less inflammatory than the charged offense, in which appellant took advantage of a position of trust by breaking in and stealing from the residence of a person who had offered to help him in the past. (See United States v. Karo (1984) 468 U.S. 705, 714 [there is a heightened level of privacy in one's home].) The court properly weighed the possible prejudicial effect against the probative value and determined the evidence was more probative than prejudicial because it was relevant to the intent to commit theft. There was no abuse of discretion.
3. Cumulative error
Appellant contends the "faulty jury instruction" and the "erroneous admission of evidence" resulted in cumulative error. In light of our conclusion the court did not err, we also conclude there was no cumulative error.
4. Vindictive prosecution
a. Background
The felony complaint in this case, filed March 25, 2010, charged appellant with burglary, a serious felony, and further alleged he had suffered three prior felonies within the meaning of section 1203, subdivision (e)(4). The complaint also alleged that pursuant to section 1170.12, appellant had suffered a prior serious or violent felony conviction in 1996 for burglary. The complaint also contained the notation, "ECR [Early Case Resolution] Offer: COUNT 1 OPEN, STRIKE 1170.12 ALLEGATION," indicating that had appellant agreed to accept the open plea to the charge in the complaint, a single strike would have been stricken. After appellant refused the plea bargain, a preliminary hearing was held and the magistrate held appellant to answer on the burglary charge. The information filed May 24, 2010, added an allegation for a five-year prior serious felony conviction enhancement under section 667, subdivision (a)(1).
b. Discussion
Appellant contends the addition of the enhancement under section 667, subdivision (a), resulted from vindictive prosecution and must be stricken. We disagree.
It is a violation of due process for a prosecutor to respond to a defendant's statutory right to appeal by bringing a more serious charge against him. (Blackledge v. Perry (1974) 417 U.S. 21, 28-29.) Such postconviction action by the state gives rise to a presumption of vindictiveness on the part of the prosecutor. (Id. at p. 27; People v. Bracey (1994) 21 Cal.App.4th 1532, 1542-1543.) By contrast, no such presumption of vindictiveness is warranted where a prosecutor takes action before trial. (United States v. Goodwin (1982) 457 U.S. 368, 381-382; People v. Bracey, supra, 21 Cal.App.4th at pp. 1546-1547.) "A prosecutor should remain free before trial to exercise the broad discretion entrusted to him to determine the extent of the societal interest in prosecution. An initial decision should not freeze future conduct." (United States v. Goodwin, supra, 457 U.S. at p. 382.) "From the very commencement of proceedings, a criminal defendant has innumerable 'rights' which are exercised prior to and during the trial. Whenever the prosecution attempted to amend the information, the defendant could assert that the amendment was really in retaliation for some right that the defendant had theretofore exercised, or attempted to exercise. If the assertion of such a claim required the prosecution to come forward with explanations of the motivations for exercise of its discretion to amend the charges, the defendant could delay the proceedings and deflect them from the true issue, the defendant's guilt or innocence." (People v. Farrow (1982) 133 Cal.App.3d 147, 152.) "Absent a presumption, a denial of due process on grounds of prosecutorial vindictiveness requires objective evidence 'that the prosecutor's charging decision was motivated by a desire to punish [the defendant] for doing something that the law plainly allowed him to do.' " (People v. Bracey, supra, 21 Cal.App.4th at p. 1549, quoting United States v. Goodwin, supra, at p. 384.) " 'The charge of vindictive prosecution is not a substitute for evidence.' " (People v. Bracey, supra, 21 Cal.App.4th at p. 1549.)
Here, as noted, the new allegation occurred in the pretrial context. Thus, the prosecution was still "free . . . to exercise the broad discretion entrusted to him to determine the extent of the societal interest in prosecution," and no presumption of vindictiveness was present. (See United States v. Goodwin, supra, 457 U.S. at p. 383.) Appellant asserts he met his "initial burden of proof" because "the prosecution filed an additional sentencing enhancement" after he rejected the ECR offer. However, "courts have consistently refused to apply the presumption in the context of failed pretrial plea bargains." (People v. Bracey, supra, 21 Cal.App.4th at p. 1546; see also Bordenkircher v. Hayes (1978) 434 U.S. 357, 365; People v. Matthews (1986) 183 Cal.App.3d 458, 463-467 [refiling the action so as to add enhancements after a failed plea bargain does not demonstrate vindictive prosecution].) Further, "[w]hile a defendant's exercise of some pretrial procedural right may present an opportunity for vindictiveness, 'a mere opportunity for vindictiveness is insufficient to justify the imposition of a prophylactic rule.' " (People v. Bracey, supra, 457 U.S. at p. 1544.) Appellant has failed to show the presumption applies, and has not presented any objective evidence that the prosecution was motivated by vindictiveness. Accordingly, the trial court correctly determined the prosecution had not engaged in prosecutorial vindictiveness.
5. Prior strike - sufficiency of the evidence
Following a bifurcated trial on appellant's prior convictions, the jury found true the allegation that appellant suffered a prior residential burglary conviction. Appellant contends there was insufficient evidence to prove he suffered the prior felony conviction. We disagree.
An information for case number 13883, filed June 5, 1986 in Sonoma County Superior Court charged appellant with one count of residential burglary that occurred May 9, 1986, in violation of section 459. In the Reporter's Transcript of the change of plea in that case, appellant stated on July 21, 1986, that he understood he was being charged with "burglary in the first degree," a felony with a maximum penalty of six years, and that he wished to plead guilty to that charge. Appellant thereafter pleaded guilty to violating "Section 459 of the Penal Code, in that you did willfully and unlawfully enter the residence and building occupied by Dennis Kalfa with the intent to commit theft therein." In a document entitled "Disposition of Arrest and Court Action," the court reported to the Department of Justice that appellant entered a guilty plea to first degree burglary in violation of section 459. Further, the Abstract of the "Warrant for Violation Probation on Felony," dated February 28, 1991, noted that appellant had been convicted of "PC 459 BURGLARY."
As appellant points out, several other documents relating to his 1986 conviction contained some typographical errors. For example, an "Order of Judgment and Probation" filed August 29, 1986, and a March 6, 1991 bench warrant listed the charge as a violation of section 496, receipt of stolen property. To explain these errors, the prosecution presented the testimony of Kathleen Allen, the Court Operations Manager for the Sonoma County Superior Court who had also worked as a courtroom clerk. Allen testified she had reviewed the record and that it appeared there was an error in the clerk's record at the time the plea was taken and that the correct charge was to section 459, rather than to section 496. Thus, although there were some inconsistencies in the documents, there was sufficient evidence from which the jury could find that appellant was charged with—and pleaded guilty to—a violation of section 459.
6. Denial of motion to strike prior strike
Appellant contends the trial court abused its discretion in refusing to strike a prior strike and consequently the sentence violates the prohibition against cruel and unusual punishment. We disagree.
Trial courts have the authority to strike prior conviction allegations in furtherance of justice under section 1385 in cases arising under the Three Strikes law. (People v. Superior Court (Romero)(1996) 13 Cal.4th 497.) There are three factors to consider when determining whether to strike a prior conviction allegation: (1) the nature and circumstances of his present felonies; (2) the nature and circumstances of his prior serious and/or violent felony convictions; and (3) the particulars of his background, character, and prospects. (People v. Williams (1998) 17 Cal.4th 148, 161.) The Three Strikes law "not only establishes a sentencing norm, it carefully circumscribes the trial court's power to depart from this norm and requires the court to explicitly justify its decision to do so. In doing so, the law creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper." (People v. Carmony (2004) 33 Cal.4th 367, 378.)
A court's denial of a motion to strike a prior felony conviction allegation is subject to review under the abuse of discretion standard. (People v. Carmony, supra, 33 Cal.4th at pp. 374-375.) A reviewing court must therefore ask "whether the ruling in question 'falls outside the bounds of reason' under the applicable law and the relevant facts. . . ." (People v. Williams, supra, 17 Cal.4th at p. 162.) A trial court does not abuse its discretion unless its decision is "so irrational or arbitrary that no reasonable person could agree with it." (People v. Carmony, supra, 33 Cal.4th at p. 377.)
Here, in denying appellant's motion to strike the prior felony conviction allegation, the court sated, "I know that the defendant was convicted by a jury of first degree burglary with a prior serious felony found to be true, and I also note now that defendant has 26 convictions, eight of which are felonies. [¶] It appears to the Court that his life falls squarely within the letter and spirit of the Three Strikes [L]aw and that for the Court to invoke any discretion it may have under . . . section 1385 would be an abuse of discretion under the circumstances. [¶] And, as such, the Court's going to decline to exercise any discretion pursuant to . . . section 1385." The court stated it had reviewed the probation report, which provided that appellant had suffered numerous prior theft convictions, six of which were felonies, including a prior residential burglary. The report stated, "The defendant has been the recipient of multiple grants of conditional sentence or otherwise undefined probation grants over the past 40 years. Of these he appears to have only succeeded in completing a single grant out of Albany, CA, in 1974 and another more recent grant in 1996 (Santa Cruz County) without incident. We note the defendant was also on four grants of conditional sentence (which included a burglary on church property) when the instant offense was committed."
The Three Strikes law was "devised for the 'revolving door' career criminal, and was expressly intended 'to ensure longer prison sentences . . . for those who commit a felony' as long as they were previously convicted of at least one strike." (People v. Strong (2001) 87 Cal.App.4th 328, 331-332, fns. omitted.) Appellant's record of recidivism brought him within the letter of the Three Strikes law, and the trial court did not abuse its discretion in declining to strike a prior strike.
Appellant also asserts that the nine year sentence constitutes cruel and unusual punishment and is "grossly disproportionate to the crime." Even assuming appellant did not forfeit the claim by failing to raise it below, we reject it on its merits. "[T]he offenses which bring . . . section 667 into play are all serious felonies." (People v. Villasenor (1984) 152 Cal.App.3d 30, 33.) "The statute has a reasonable and proper purpose in discouraging persons who commit serious felonies from doing it again." (Ibid.) Thus, "the punishment is proportionate to the offense and has a direct relation to the culpability of the defendant. The nature of the crimes that bring into play . . . section 667, so that a five-year enhancement will apply to the sentence, in no way offends fundamental notions of human dignity, but rather reflects a reasonable and justifiable attempt by the electorate both to discourage recidivism and to punish those who commit serious offenses." (Id. at p. 34.) Here, the seriousness of the offense of first degree burglary and the danger appellant presents to society as a repeat offender justified the imposition of the five-year enhancement, and we do not find the resulting nine year sentence to be so disproportionate to the crime he committed that it " 'shocks the conscience and offends fundamental notions of human dignity.' " (People v. Dillon (1983) 34 Cal.3d 441, 478; In re Lynch (1972) 8 Cal.3d 410, 424.)
DISPOSITION
The judgment is affirmed.
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McGuiness, P.J.
We concur: ______________
Siggins, J.
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Jenkins, J.