Opinion
NOT TO BE PULBLISHED
APPEAL from the Superior Court of San Bernardino County No. FSB43611. Donna G. Garza, 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, Gary W. Schons, Assistant Attorney General, and Jeffrey J. Koch and William M. Wood, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HOLLENHORST, Acting P. J.
I. INTRODUCTION
Defendant Larry Kamal Collins appeals from his conviction of one felony count of attempted criminal threats (Pen. Code, §§ 664, 422) and one misdemeanor count of annoying telephone calls (§ 653m, subd. (a)). Defendant admitted two prior felony convictions (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i), and 667, subd. (a)(1)).
All statutory references are to the Penal Code unless otherwise noted.
Defendant contends: (1) there was insufficient evidence to support his conviction of attempted criminal threats; (2) the trial court erred in failing to provide the unanimity instruction sua sponte to the jury; (3) the trial court either abused its discretion or misunderstood the scope of its discretion when it declined to strike defendant’s priors; (4) the trial court erred in declining to treat defendant’s conviction of attempted criminal threats as a “wobbler”; and (5) the “Three Strikes” law violates constitutional protections against cruel and unusual punishment when applied to nonviolent crimes.
We find no errors, and we affirm.
II. FACTS AND PROCEDURAL BACKGROUND
A. Evidence
On March 19, 2004, Cherrie Gibson (Cherrie) lived in San Bernardino with her family, including her daughter, Latoya Gibson (Latoya). That morning, Cherrie received a telephone call from a male who did not give his name but claimed he was Latoya’s boyfriend. He asked to speak with Latoya. Cherrie told the caller that Latoya was sleeping, and that he could not be her boyfriend because Latoya had a fiancé. The caller began to curse and threaten Cherrie. When the man called a second time, Cherrie woke Latoya and told her about the telephone calls. Latoya told her mother she did not want to speak to the man.
Cherrie told the caller that Latoya was not coming to the telephone. The man made a series of calls to the Gibson home, in which he threatened to shoot out Cherrie’s windows, blow up her house, and “blow [her] brains out.”. The calls were made as close as 10 to 20 minutes apart and continued throughout the day. When asked not to call the house again, the man responded with expletives and further threats.
Latoya told Cherrie that the caller would not carry out any threats and that he was not coming to the house. After the calls had continued for hours, Cherrie grew frightened and called 911. She testified that the calls “just scared the mess out of [her]” because she had previously experienced a break-in and was concerned for the safety of her small children.
After calling 911, Cherrie took her youngest child to the hospital. When she returned approximately three hours later, her son informed her that the telephone had not stopped ringing. Although the threatening calls continued, Cherrie called 911 again and requested that the police wait until the morning to come by the house so the family could try to get some rest. The man called throughout the night and into the following morning, continuing to ask for Latoya and threaten the family. Cherrie testified that the family “didn’t hardly get no sleep.”
The police arrived shortly after 8:00 the following morning. While the police were at the home, Cherrie received yet another call from the man. At that time, Latoya took the police to defendant’s house, where he was arrested. Defendant had known Latoya for less than a month. Defendant was taken to the police station, was read his Miranda rights, and agreed to speak with the police.
Miranda v. Arizona (1966) 384 U.S. 436.
Initially, defendant denied making any calls to the Gibson residence. Later he admitted making about 17 calls, trying to talk to Latoya, but talking only to her mother. When the police asked if he had threatened to shoot up the house, defendant smiled and said he could have said that. Defendant admitted he said something about “blow[ing] everyone’s brains out, ” and he smiled and laughed. Defendant explained that he was angry because Cherrie would not let him talk to Latoya and concluded by saying, “I’m guilty. I did it.”
At the time the calls were made, defendant lived with his uncle, Alfred Jerome Lowe. While in jail awaiting trial, defendant wrote a letter to Lowe asking Lowe to testify that he had heard defendant call and ask to speak to Latoya, but had heard no threats, and had seen defendant hand the telephone to “Rolland, ” defendant’s friend, who began cursing. Defendant told Lowe not to worry about Rolland because he was “a nobody[, ] he’s only 17 he got no prison record or jail record.... Rolland is just a punk youngster kid.” The letter concluded, “Alfred remember please what to say at court!” (Capitalization omitted.)
At trial, Lowe testified that he remembered defendant making “a bunch of phone calls, ” more than 15, at different hours of the day, but Lowe did not hear what defendant said in the calls. Lowe testified that he did not see defendant hand the telephone to Rolland, and that he did not know if Rolland was even at the house during the calls.
B. Verdicts and Sentence
Defendant was convicted of one count of attempted criminal threats (§§ 664, 422), and one count of annoying telephone calls (§ 653m, subd. (a).) Defendant admitted two prior felony convictions. Defendant brought a Romero motion requesting the court to strike one or more prior felony convictions, and a section 17, subdivision (b) motion requesting the trial court to reduce the conviction for attempted criminal threats to a misdemeanor. The trial court denied both motions and sentenced defendant to an aggregate term of 35 years to life: 25 years to life for the attempted criminal threats, and two additional five-year enhancements for his prior felonies. Defendant was sentenced to serve a concurrent sentence of 365 days for the annoying telephone calls.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
III. DISCUSSION
A. Sufficiency of Evidence of Attempted Criminal Threats
Defendant contends there was insufficient evidence to support a conviction of attempted criminal threats. He argues that: (1) his statements were “more akin to ranting, rather than expressing any immediacy”; (2) there usually needs to be some conduct accompanying the threats to support the conclusion that the threat is immediate; and (3) as shown by the actions of the victim, there was no sense of immediacy or likelihood of execution.
1. Standard of Review
When we analyze a criminal defendant’s claim that the evidence was insufficient to support his conviction, “‘we review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] The standard of review is the same in cases in which the People rely mainly on circumstantial evidence. [Citations.]’” (People v. Abilez (2007) 41 Cal.4th 472, 504.)
2. Analysis
To prove a violation of the criminal threats statute, the following elements must be shown: “‘(1) that the defendant “willfully threaten[ed] to commit a crime which will result in death or great bodily injury to another person”; (2) that the defendant made the threat “with the specific intent that the statement... is to be taken as a threat, even if there is no intent of actually carrying it out”; (3) that the threat—which may be “made verbally, in writing, or by means of an electronic communication device”—was “on its face and under the circumstances in which it [was] made, ... so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat”; (4) that the threat actually caused the person threatened “to be in sustained fear for his or her own safety or for his or her immediate family’s safety”; and (5) that the threatened person’s fear was “reasonabl[e]” under the circumstances.’ [Citations.]” (In re George T. (2004) 33 Cal.4th 620, 630; see also People v. Toledo (2001) 26 Cal.4th 221, 227-228 (Toledo), fn. omitted.)
Section 422 requires that “the communication must be sufficient ‘on its face and under the circumstances in which it is made’ to constitute a criminal threat. This means that the communication and the surrounding circumstances are to be considered together. ‘Thus, it is the circumstances under which the threat is made that give meaning to the actual words used. Even an ambiguous statement may be a basis for a violation of section 422.’ [Citations.]” (In re Ryan D. (2002) 100 Cal.App.4th 854, 860.)
An immediate ability to carry out the stated threat need not be shown. (In re David L. (1991) 234 Cal.App.3d 1655, 1660.) A threat to commit future harm may be punishable. (People v. Brooks (1994) 26 Cal.App.4th 142, 148-149.)It can be enough to show the threat “was not ‘on its face and under the circumstances in which it [was] made’ either conditional or in jest.” (In re David L., supra, at p. 1660.) A threat may be sufficient even if there is no indication of a time or precise manner of the execution; it is enough to threaten death or serious bodily injury. (Ibid.) Moreover, where “only a fortuity, not intended by [defendant], ” has prevented the defendant from succeeding in making a criminal threat, a conviction of attempted criminal threats is appropriate. (Toledo, supra, 26 Cal.4th at p. 231.)
a. Defendant was not merely ranting
Defendant first contends his statements were mere “rantings” that did not express any immediacy. “Section 422 was not enacted to punish emotional outbursts, it targets only those who try to instill fear in others.” (People v. Felix (2001) 92 Cal.App.4th 905, 913.) “[M]ere angry utterances or ranting soliloquies, however violent, ” are not punishable. (People v. Teal (1998) 61 Cal.App.4th 277, 281.)
In People v. Gudger (1994) 29 Cal.App.4th 310 (Gudger), Gudger made telephone calls to a judge, threatening to kill the judge if Gudger was evicted from her apartment. (Id. at p. 314.) Although Gudger claimed her calls were merely “overblown and overly dramatic pleas, ” the court considered the language of the “repeated threats and the circumstances which revealed her disgruntled and agitated state at the time of the threats, as well as her specific and well-focused pique” with the victim, and found there was “substantial evidence that [Gudger] intended her statements to be taken as true threats.” (Id. at p. 321.)
Although Gudger analyzed section 76, dealing with criminal threats to public officials, that section is similar to section 422. (Gudger, supra, 29 Cal.App.4th at p. 321.)
Defendant argues that his telephone calls were mere rants rather than expressions conveying an immediate prospect of violent action because: (1) Latoya informed Cherrie that the threats were baseless; (2) there was no indication that he knew where the Gibsons lived; (3) Cherrie left her family in the house and took her child to the doctor; and (4) Cherrie called the police at bedtime and asked them not to come until morning. However, none of these reasons are relevant to the issue of whether the defendant was merely ranting.
Even if the reasons did go to this issue, they are unavailing. First, no evidence was presented that defendant was aware Latoya told Cherrie the threats were baseless. Second, whether a person making a threat is capable of carrying out the threat is irrelevant. (In re David L., supra, 234 Cal.App.3d at p. 1660.) Thus, it is irrelevant whether or not defendant knew where Cherrie or Latoya lived. All that was required was that defendant make a threat that conveyed “‘an immediate prospect of execution.’” (Ibid.) Finally, whether or not Cherrie experienced sustained fear is irrelevant for a charge of attempted criminal threats, the crime of which defendant was convicted. (See Toledo, supra, 26 Cal.4th at p. 231.)
In determining whether the evidence was sufficient, we must consider whether a reasonable trier of fact could have determined that defendant was acting, not in an emotional outburst, but rather with the intent to convey an “‘unequivocal, unconditional, immediate, and specific’” threat. (Toledo, supra, 26 Cal.4th at pp. 227-228.) Defendant told the police he had been angry because Cherrie would not let him talk to Latoya. However, defendant’s threats were repeated for nearly 24 hours, and, as previously noted, the threats involved death or great bodily harm. Thus, there was sufficient evidence that defendant’s statements were threats and not mere emotional outbursts.
b. Conduct is not necessary
Defendant notes that “[i]n published cases affirming criminal threat convictions there is generally conduct accompanying the threats which support the conclusion that the threat is immediate.” While accompanying conduct can help show a section 422 violation, the court takes into account “all of the surrounding circumstances” of the threat when determining if this section applies. (People v. Martinez (1997)53 Cal.App.4th 1212, 1220, citing People v. Stanfield (1995) 32 Cal.App.4th 1152, 1158; see also People v. Brooks, supra, 26 Cal.App.4th at p. 149.) These circumstances “include such things as the prior relationship of the parties and the manner in which the communication was made.” (In re Ryan D. (2002) 100 Cal.App.4th 854, 860; see also In re Ricky T. (2001) 87 Cal.App.4th 1132, 1137-1138 [insufficient evidence of a § 422 violation where there were no circumstances to corroborate a true threat because there was only the statement, “I’m going to get you, ” preceded by no prior history of disagreements].) “Although an intent to carry out a threat is not required, the actions of the accused after making the communication may serve to give meaning to it. [Citation.]” (Ryan D., supra, at p. 860.)
Although defendant took no action other than making repeated threatening telephone calls across a nearly 24-hour time span, the language of the repeated threats was unequivocal. Defendant continuously threatened to blow up Cherrie’s house, “blow everyone’s brains” out, and shoot out her windows. This shows not only that defendant was “disgruntled and agitated, ” but also that he had a “specific and well-focused pique” towards Cherrie and her family. (Gudger, supra, 29 Cal.App.4th at p. 321.) Thus, the evidence was sufficient to support a finding that defendant had the intent to threaten Cherrie and her family.
c. The victim need not exhibit sustained fear for an attempted criminal threats charge
Defendant contends the lack of fear exhibited by Cherrie was evidence that there was no immediacy conveyed. We disagree.
“To constitute a criminal threat, a communication need not be absolutely unequivocal, unconditional, immediate, and specific. The statute includes the qualifier ‘so’ unequivocal, etc., which establishes that the test is whether, in light of the surrounding circumstances, the communication was sufficiently unequivocal, unconditional, immediate, and specific as to convey to the victim a gravity of purpose and immediate prospect of execution. [Citation.]” (In re Ryan D., supra, 100 Cal.App.4th at p. 861, citing People v. Bolin (1998) 18 Cal.4th 297, 340.) The failure of the victim to be put in sustained fear for her safety does not prevent a conviction of attempted criminal threats. (Toledo, supra, 26 Cal.4th at p. 231.) Indeed, this is the specific factor that often distinguishes a criminal threat from an attempted criminal threat. (Id. at pp. 230-231) For an attempted criminal threat, all that must be shown is that a reasonable person would have been afraid under the same circumstances. (Id. at p. 231.)
Cherrie received numerous calls from an unknown man who repeatedly threatened and cursed at her for nearly 24 hours. The trier of fact reasonably found Cherrie could have been placed in sustained fear for her safety, even if she actually did not experience this fear, and that there was a sense of immediacy conveyed by the threats.
B. Failure to Give Unanimity Instruction Sua Sponte
Defendant contends the trial court prejudicially erred in failing to sua sponte instruct the jury pursuant to CALJIC No. 17.01 on the duty to unanimously agree on the act appellant committed as the basis for the attempted criminal threats conviction.
“[W]hen the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act.” [Citations.]” (People v. Russo (2001) 25 Cal.4th 1124, 1132.) “The duty to instruct on unanimity when no election has been made rests upon the court sua sponte. [Citation.].... [¶] ‘It is established that some assurance of unanimity is required where the evidence shows that the defendant has committed two or more similar acts, each of which is a separately chargeable offense, but the information charges fewer offenses than the evidence shows.’ [Citations.] By giving the unanimity instruction the trial court can ensure that a defendant will not be convicted when there is no agreement among the jurors as to which single offense was committed. [Citations.]” (People v. Melhado (1998) 60 Cal.App.4th 1529, 1534.)
“[A] unanimity instruction must be given ‘“only if the jurors could otherwise disagree which act a defendant committed and yet convict him of the crime charged.”’ [Citation.]” (People v. Seaton (2001) 26 Cal.4th 598, 671.) “‘[W]here the acts are substantially identical in nature, so that any juror believing one act took place would inexorably believe all acts took place, the instruction is not necessary to the jury’s understanding of the case.’” (People v. Beardslee (1991) 53 Cal.3d 68, 93.) Under such circumstances, the Supreme Court has held that the unanimity instruction is either not required or its absence is harmless. (People v. Davis (2005) 36 Cal.4th 510, 562.)
Where a defendant makes a continuous series of threats throughout the victim’s ordeal, the threats are “similar and relatively contemporaneous in time, and the parties did not make any significant distinction between them, ” there is no reasonable possibility some jurors would believe one discrete threat and others would believe another threat. (People v. Jantz (2006) 137 Cal.App.4th 1283, 1292-1293.) Thus, a unanimity instruction is not necessary. (Ibid.)
In this case, defendant made a long chain of threatening telephone calls, which were not distinguished as separate events but as a chain of calls with a few specific phrases being used. The jury was not asked to determine how many calls were made or the nature of any specific call. In fact, during the trial, defense counsel repeatedly asserted the exact number of calls was irrelevant. The jury was left to make its decision based on the chain of calls as one continuous event.
In his statement to police, defendant admitted making the calls and the specific threats. Defense counsel conceded that defendant made the calls and the threats. Even though defendant claims a number of defenses were raised, the defenses applied to all of the calls, not just one specific call or set of calls. There was no effort to distinguish the defense position as to any individual call. If the jury believed defendant made one call, it would have inexorably believed he made all the calls. Thus, we conclude that no unanimity instruction was required and there was no error.
C. Declining to Strike Defendant’s Priors
Defendant contends the trial court misapplied the relevant Romero standard when it failed to strike one or more prior offense. He argues the trial court misunderstood the Romero requirements and therefore could not have exercised its discretionary power. Defendant reasons that because the trial court failed to exercise its discretion, it necessarily abused its discretion when it declined to strike his priors.
1. Background
Before the sentencing hearing, defendant filed a request that the trial court dismiss his strike priors in the interest of justice under section 1385. Defendant’s moving papers described the facts underlying the felony conviction (asserting defendant was intoxicated at the time), set forth defendant’s prior strike convictions and his explanation for each, gave a synopsis of his background, and included investigative statements about defendant from defendant, his mother, his father, his younger brother, and his sister. At the hearing, the trial court said it had read and considered defendant’s request. It then heard arguments from counsel and oral statements by defendant’s father, grandmother, and sister, as well as by defendant himself.
The trial court stated: “The Court is given specific guidelines in which to strike prior strikes in this matter. None of them seem to fall within the purview of [defendant’s] matter. I am looking at two prior strikes in this matter, both of which happened fairly recently before this trial occurred; they are not old in time. They are not the same case; they are different victims in this matter. [¶] Unfortunately, based upon the strikes he suffered prior to this new case before the Court, there is nothing that gives the Court authority in which to strike. I am looking at both of those. The three strikes law was created by the legislature specifically for individuals who had previous serious offenses that were near in time. So for that, I am not going to strike the prior strikes in this matter.”
2. Standard of Review
A trial court’s decision not to strike a prior strike conviction is subject to review under the deferential abuse of discretion standard. (People v. Carmony (2004) 33 Cal.4th 367, 375-376 (Carmony I).)
3. Analysis
The Three Strikes law “was intended to restrict courts’ discretion in sentencing repeat offenders.” (Romero, supra, 13 Cal.4th at p. 528.) “To achieve this end, ‘the Three Strikes law does not offer a discretionary sentencing choice, as do other sentencing laws, but establishes a sentencing requirement to be applied in every case where the defendant has at least one qualifying strike....’ [Citation.]” (Carmony I, supra, 33 Cal.4th at p. 377.) To find an exception to the Three Strikes law, the trial court must consider whether a defendant is “outside the scheme’s spirit” to the point where he should be treated as though he had not been convicted of the prior serious or violent felony. (Carmony, supra, at p. 377.) The trial court looks at the nature and circumstances of defendant’s present and prior felonies, his background, character, and prospects, his constitutional rights, and the interests of society represented by the People. (Ibid.) There is a strong presumption that any sentence that conforms to the sentencing norm created by the Three Strikes law is both rational and proper, and the trial court must explicitly justify its decision to depart from this norm. (Carmony I, supra, at p. 378.) A trial court abuses its discretion in failing to strike a prior felony conviction allegation in only limited circumstances, such as where the court considered impermissible factors in declining to dismiss, or the sentencing norms would result in a “patently absurd” result in the particular facts of the case. (Ibid.) “It is not enough to show that reasonable people might disagree whether to strike one or more of [defendant’s] prior convictions.” (People v. Myers (1999) 69 Cal.App.4th 305, 310 (Myers).)
Defendant relies partly on People v. Bishop (1997) 56 Cal.App.4th 1245, in his argument on this issue. However, Bishop predated Williams and thus did not apply the applicable standard, but instead “merely suggested that the nature of the present crime... and the remoteness of defendant’s prior violent offenses may operate to mitigate his Three Strikes sentence. It never addressed the overall question whether defendant should be deemed to fall outside the scheme’s spirit.” (People v. Strong (2001) 87 Cal.App.4th 328, 342.)
People v. Williams (1998) 17 Cal.4th 148, 163 (defining the standard for dismissing a strike in furtherance of justice, requiring that the defendant be deemed “outside the spirit” of the Three Strikes law before dismissing a strike).
Further, defendant relies on People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968 (Alvarez). Alvarez states the appropriate appellate test for abuse of discretion applicable to section 17, subdivision (b) motions, not for motions to strike prior offense allegations. A trial court has broad generic discretion, “‘grounded in reasoned judgment’” and guided by appropriate legal principles and policies, to reduce a wobbler offense from a felony to a misdemeanor under section 17, subdivision (b). (Alvarez, supra, at p. 977.) This is not the same level of discretion afforded to the trial courts in deciding to dismiss prior strikes (see Carmony I, supra, 33 Cal.4th at p. 377), and Alvarez therefore does not apply to this issue.
a. No abuse of discretion
Defendant contends the trial court abused its discretion by focusing on facts relating to his criminal history alone, without giving any measurable consideration to the other relevant factors.
A trial court “is presumed to have considered all of the relevant factors in the absence of an affirmative record to the contrary.” (Myers, supra, 69 Cal.App.4th at p. 310.) The fact that the trial court focused its explanatory comments on the defendant’s criminal history does not mean that it only considered that factor. (Ibid.)
Not only does the record lack evidence that would show the trial court failed to consider all relevant factors in determining that the defendant fell within the scope of the Three Strikes law, but also, there is ample evidence to the contrary. The trial court stated it had read and considered defendant’s moving papers and the statements of witnesses at the hearing. The information before the court showed that defendant was 26 years old when he committed the present crime. As an adult, he was convicted of robbery in 1997, for which he was sentenced to three years’ probation, with 180 days of jail. In 1998, he was convicted of assault with a deadly weapon with a prior felony conviction, for which he was sentenced to six years in state prison. Preceding the two strikes were misdemeanor convictions for battery, assault with a deadly weapon, and petty theft. He was also convicted of vehicle theft in 1998.
Defendant served five of the six years for his conviction of assault with a deadly weapon before being released on parole. The current crimes were committed in March 2004, violating his parole only four months after his release from prison. The current crimes involved threats of significant acts of violence.
Moreover, defendant is a high school dropout with no career prospects. Reports submitted by defendant based on a private investigator’s interviews of defendant’s family described him as a “follower” who “ran with a bad crowd, ” and a person with psychological problems who “needed that type of attention the gang(s) gave to him.” At the sentencing hearing, defendant was described as having “anger problems.” Defendant’s family made repeated unsuccessful attempts to dissuade him from associating with gang members.
While defendant primarily spent time around gang members, there is no indication that defendant himself was a member of any gang.
Defendant contends that “merely having information in the record from which the court might have correctly applied the relevant criteria for striking a strike does not meet the criteria set out by the controlling decision” in People v. Wade (1959) 53 Cal.2d 322. In Wade, the Supreme Court found reversible error in the trial court’s decision to deny probation before the probation report had even been prepared or submitted. (Ibid.) Here, in contrast, the trial court made its decision after it read and considered all the relevant information.
In light of defendant’s background, character, prospects, lack of remorse for his present crimes, and criminal history, it was reasonable for the trial court to have declined to exercise its discretion to strike a prior under section 1385.
b. No misunderstanding as to the scope of discretion
Defendant contends the trial court’s ruling should be reversed because the trial court misunderstood the scope of its discretion. Defendant argues the court’s statement, “Unfortunately, based upon the strikes that [defendant] suffered prior to this new case before the Court, there is nothing that gives the Court authority in which to strike, ” indicates the trial court did not understand the scope of its discretion. (Italics added.) We disagree.
“[A]n erroneous understanding by the trial court of its discretionary power is not a true exercise of discretion. [Citation.]” (People v. Aubrey (1998) 65 Cal.App.4th 279, 282.) “Defendants are entitled to sentencing decisions made in the exercise of the ‘informed discretion’ of the sentencing court. [Citations.] A court which is unaware of the scope of its discretionary powers can no more exercise that ‘informed discretion’ than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant’s record. [Citation.]” (People v. Belmontes (1983) 34 Cal.3d 335, 348, fn. 8.)
To support his argument, defendant relies on People v. Banks (1997) 59 Cal.App.4th 20. In Banks, the court believed it had no power to dismiss a strike as opposed to the “limited dismissal discretion” that it actually had. (Id. at p. 23.) Here, in contrast, defendant had the opportunity to persuade the court, but the court determined this case fell outside of its “limited dismissal discretion” where it had no authority to strike the prior convictions. (Ibid.)
On a “silent record, ” a trial court is presumed to have correctly applied the law. (People v. Gillispie (1997) 60 Cal.App.4th 429, 434.) For error to be found, it must appear affirmatively on the record. (Ibid.) Here, the court was well aware of the law: defendant’s moving papers cited both the Romero and Williams decisions and delineated the factors relevant to the exercise of discretion. Thus, we reject defendant’s claim.
C. Declining to Treat Conviction as a Wobbler
Defendant contends the trial court abused its discretion in denying his section 17, subdivision (b) motion to reduce his felony conviction to a misdemeanor by relying solely on his prior convictions and failing to give consideration to other relevant factors.
1. Background
The trial court stated: “With respect to the [section 17, subdivision (b)] motion, I was the trial judge who did hear the testimony, as well as the findings of the jury in this matter.... I do find that it fell within a felony. That is what the jury concluded in this matter. I do not find that it falls within the purview of the Court to replace the... judgment based upon the facts that were presented in this matter and what the jury found. So for that, I will deny the motion and the 17(b).”
2. Standard of Review
A trial court’s refusal to reduce a wobbler offense to a misdemeanor is subject to review for an abuse of discretion. (Alvarez, supra, 14 Cal.4th at p. 981.)
3. Analysis
A wobbler is presumptively a felony and “‘remains a felony except when the discretion is actually exercised’” to make the crime a misdemeanor. (People v. Williams (1945) 27 Cal.2d 220, 229.) Trial courts have discretion to reduce a wobbler charged as a felony to a misdemeanor either before preliminary examination or at sentencing to avoid imposing a Three Strikes sentence. (Alvarez, supra, 14 Cal.4th at pp. 978-979.)
When exercising section 17, subdivision (b) discretion, relevant factors 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.] When appropriate, judges should also consider the general objectives of sentencing such as those set forth in California Rules of Court, [former] rule 410.” (Alvarez, supra, 14 Cal.4th at p. 978, fn. omitted.) Judges have the discretion to “weight the various sentencing considerations commensurate with the individual circumstances.” (Id. at p. 979.)
California Rules of Court, former rule 410, is now rule 4.410.
While the fact that a wobbler offense arose as part of a Three Strikes filing will not “invariably or inevitably militate against reducing the charge 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. [Citations.]” (Alvarez, supra, 14 Cal.4th at p. 979.) In assessing the severity of a Three Strikes sentence, “the court must remain cognizant that the present violation of law only triggers the mandated penalty, which ultimately is the consequence of both that offense and the defendant’s recidivist status. [Citation.]” (Alvarez, supra, at p. 979.)
The purpose of the trial judge’s sentencing discretion to downgrade certain felonies is to “impose a misdemeanor sentence in those cases in which the rehabilitation of the convicted defendant either does not require, or would be adversely affected by, incarceration in a state prison as a felon.” (In re Anderson (1968)69 Cal.2d 613, 664-665 (conc. opn. of Tobriner, J.).) The reduction of a wobbler to a misdemeanor is not based on the notion that a wobbler offense is “conceptually a misdemeanor.” (Necochea v. Superior Court (1972) 23 Cal.App.3d 1012, 1016.) Rather, it is “intended to extend misdemeanant treatment to a potential felon” and “extend more lenient treatment to an offender.” (Ibid.)
In this case, the trial court had before it all the factors identified in Alvarez, as appropriate considerations in making its decision. The trial court read and considered the defense written motion and said so twice. The defense’s written submission included background and character information about defendant, and the trial court also heard from defendant and members of his family.
“The court is presumed to have considered all of the relevant factors in the absence of an affirmative record to the contrary.” (Myers, supra, 69 Cal.App.4th at p. 310.) In explaining its denial, the trial court stated it would not reduce the charge to a misdemeanor because of the specific facts of the case. However, the fact the trial court focused its explanatory comments on one factor does not mean it failed to consider other factors (ibid.), such as whether defendant’s chances of rehabilitation would be harmed by the felony conviction.
Since the record does not affirmatively reflect any failure to consider relevant factors and evidence, an abuse of discretion is not shown.
D. Constitutionality of Three Strikes Law as Applied to Nonviolent Offenses
Defendant contends the Three Strikes law violates the state and federal constitutional prohibitions against cruel and/or unusual punishments when applied to crimes that do not result in harm or violence. He claims the law is “unique in that it does not discriminate between crimes in the abstract or culpability for particular acts or even recidivist conduct timing, and it is unique in that it is mandatory in its application with no room to consider the individual offender or offense.” Defendant further asserts that the Three Strikes law is “irrational” in its treatment of recidivists based on the order in which their offenses are committed.
1. Violent Offender
Defendant argues that he is a nonviolent offender. We disagree. Defendant has collected six convictions in the eight years he has been an adult and has spent at least five of those years in prison. Even though his relevant present offense is classified only as a serious felony (§ 1192.7 subd. (c)(38)-(39)), the trial court found that the crime involved threats of great bodily injury.
Recidivism statutes look not at the triggering offense, but at the combination of offenses to determine the threat of the offender to society. (Lockyer v. Andrade (2003) 538 U.S. 63, 80-81 (Andrade).) “In imposing a three strikes sentence, the State’s interest is not merely punishing the offense of conviction, or the ‘triggering’ offense: ‘It is in addition the interest... in dealing in a harsher manner with those who by repeated criminal acts have shown that they are simply incapable of conforming to the norms of society as established by its criminal law.’ [Citation.]” (Ewing v. California (2003) 538 U.S. 11, 29 (Ewing).) Regardless of whether defendant’s section 422 violation was a crime involving violence, his prior robbery was a violent crime (§ 667.5, subd. (c)(9)), and his conviction for assault with a deadly weapon likely to produce great bodily injury clearly involved violence. Considering all of defendant’s offenses, we find that he qualifies as a violent offender for purposes of determining the application of the Three Strikes law.
2. Individual Sentencing
Defendant contends the Three Strikes law is unconstitutional because it is mandatory in application. Not so. The Three Strikes law permits individual consideration by providing trial court discretion to strike prior strike convictions (Romero, supra, 13 Cal.4th at pp. 529-530), or to reduce “‘wobblers’ to misdemeanors (which do not qualify as triggering offenses).” (Ewing, supra, 538 U.S. 11 at p. 17.)
In defendant’s case, the trial court looked to the way the crime was committed, the extent of his involvement, the consequences of his acts, and the attitude he took towards his actions when it declined to exercise its discretion to decrease the charge from a felony to a misdemeanor and declined to exercise its discretion to strike a prior felony allegation. There is no indication that defendant was sentenced without individualized consideration of the merits of his case and circumstances.
3. Rationality
Defendant also contends the Three Strikes law is unconstitutional because it is irrational. “[A] sentencing law that is utterly irrational is unconstitutional and does not afford a basis for punishment.” (People v. Kilborn (1996) 41 Cal.App.4th 1325, 1328 (Kilborn).) However, it is not irrational to treat recidivists more harshly. (Id. at p. 1329.)
Defendant repeats a contention unsuccessfully raised by the defendant in Kilborn, that there is a discrepancy in sentencing because “one who commits a serious or violent felony after a previous conviction for a felony that is not of that grade is punished less severely than a defendant whose order of crimes is reversed.” (Kilborn, supra, 41 Cal.App.4th at pp. 1329.) The key to the Three Strikes law is recidivism; the public has an interest in preventing a dangerous recidivist from committing further felonies. (Kilborn, supra, at pp. 1329-1330.) Unequal treatment of different defendants based on their commission of different crimes is rational and does not violate equal protection. (Thompson v. Superior Court (2001) 91 Cal.App.4th 144, 159; Kilborn, supra, at pp.1331-1332.) While people who are similarly situated must be treated alike, there is “no requirement that persons in different circumstances must be treated as if their situations were similar. [Citation.]” (People v. McCain (1995) 36 Cal.App.4th 817, 819.)
Recidivists who have committed different crimes are not similar. (People v. Cooper (1996) 43 Cal.App.4th 815, 828.) Violent and serious felonies have different motivations from nonserious felonies, and pose a higher risk of danger to the victim and society in general. (Id. at pp. 828-829.) These recidivists have engaged in significant antisocial behavior and have not benefited from the intervention of the criminal justice system. (Id. at p. 829.)
“It is reasonable for the Legislature to distinguish between those felons... who come to court with a history of serious or violent felony convictions and those who do not. Such exercise of legislative discretion cannot be defeated simply by the argument that at the end of a mathematical process the offenders have committed an equal number of serious and nonserious felonies.” (Cooper, supra, 43 Cal.App.4th at p. 829.) As long as the legislative enactment is “procedurally fair and reasonably related to a proper legislative goal, ” there is no violation of due process. (Ibid.)
4. Proportionality
a. Federal Analysis
In Ewing, supra, 538 U.S. 11, the United States Supreme Court concluded that sentencing under the Three Strikes law for a wobbler offense was not cruel and/or unusual punishment under the federal Constitution. (Ewing, supra, at pp. 30-31.) That discussion applies fully to this case, and we need not reiterate it here.
b. State Analysis
The California Constitution, article 1, section 17, prohibits cruel or unusual punishments. In In re Lynch (1972) 8 Cal.3d 410 (Lynch), superseded by statute on another ground in People v. Caddick (1984) 160 Cal.App.3d 46, 51, the Supreme Court concluded that a punishment may violate the California Constitution if, although not cruel or unusual in its method, the punishment is so disproportionate to the crime for which it is inflicted that it “shocks the conscience and offends fundamental notions of human dignity.” (In re Lynch, supra, at p. 424.) To determine if a punishment is disproportionate under this standard, courts should “(1) consider ‘the nature of the offense and/or the offender’ [citation], (2) compare the punishment to other punishments imposed by the same jurisdiction for more serious offenses [citation] and (3) compare the punishment to other punishments imposed by other jurisdictions for the same offense [citation].” (People v. Martinez (1999) 71 Cal.App.4th 1502, 1510.) The penological purposes of the prescribed punishment are also relevant. (People v. Carmony (2005) 127 Cal.App.4th 1066, 1085 (Carmony II).) Defendant relies only on the first two techniques, and thus, we will address only these two.
i. Offense and offender
Even a punishment “which is not disproportionate in the abstract, is nevertheless constitutionally impermissible if it is disproportionate to the defendant’s individual culpability.” (People v. Dillon (1983) 34 Cal.3d 441, 480.) In making such a determination, the court evaluates the nature of the offense and the offender with particular regard to the degree of danger both present to society. (Id. at pp. 479, 482-489.) When evaluating the nature of the offense, the court considers the circumstances of the particular crime, such as motive, the way the crime was committed, and the extent of the defendant’s involvement and the consequence of his acts. (Id. at p. 479.) Likewise, the court looks at the specific offender and asks “whether the punishment is grossly disproportionate to the defendant’s individual culpability as shown by such factors as his age, prior criminality, personal characteristics, and state of mind.” (Ibid.) In conducting both analyses, the court pays particular attention to the degree of danger both the offense and the offender present to society. (Ibid.)
Defendant contends the Three Strikes law violates proportionality under the California constitutional analysis because there is no consideration permitted of the individual’s culpability in the current crime to which the sentence is to attach. We reiterate it is not the triggering crime that is being punished by the Three Strikes law, but rather the active recidivism in crimes constituting serious or violent felonies. “[T]he court must remain cognizant that the present violation of law only triggers the mandated penalty, which ultimately is the consequence of both that offense and the defendant’s recidivist status. [Citation.]” (Alvarez, supra, 14 Cal.4th at p. 980.)
Although an imposition of a Three Strikes sentence will not automatically be upheld as constitutional, “[i]t is a rare case that violates the prohibition against cruel and/or unusual punishment.” (Carmony II, supra, 127 Cal.App.4th at p. 1072.) In Carmony II, the court found that the imposition of a recidivist penalty for failing to provide duplicate registration information was “grossly disproportionate” to the offense and constituted cruel and unusual punishment. (Id. at p. 1073.) The underlying crime must support the weight of the recidivist penalty imposed. (Id. at p. 1072.) Although the Legislature may increase penalties for repeat offenders, recidivism alone is not enough to impose increased punishment “where the predicate offense serves no rational purpose of the state.” (Ibid.) The court found that the crime in Carmony II was “an entirely passive, harmless, and technical violation of the registration law....” (Id. at p. 1077.)
The crime of attempted criminal threats is not a passive or technical crime. It requires active conduct with the intent of placing an innocent victim in sustained fear for her safety or that of her family. (See People v. Solis (2001) 90 Cal.App.4th 1002, 1023-1024.)
Here, defendant lashed out in anger at his victim for simply refusing to put her daughter on the telephone. This crime took place over nearly 24 hours and was one continuous event consisting of threatening telephone calls. Defendant was the only person involved in these calls, and he showed no remorse for his actions. Further, the trial court found seven aggravating circumstances (Cal. Rules of Court, rules 4.421(a)(1), 4.421(a)(3), 4.421(a)(8), and 4.421(b)(2)-(5)) and no mitigating circumstances (Cal. Rules of Court, rule 4.423).
Recidivism must also be taken into consideration. (Ewing, supra, 538 U.S. at pp. 24-26.) The evidence must show that a defendant has recidivist tendencies to commit offenses that pose a risk of harm to the public before “[a] sentence of 25 years to life in prison serves the penological purpose of protecting society from career criminals by incapacitating and isolating them with long prison terms. [Citation.]” (Carmony II, supra, 127 Cal.App.4th at p. 1080.)
The defendant in Lynch received a life sentence for a second offense of indecent exposure, a crime typically punished as a misdemeanor. In finding that the punishment was disproportionate, the Supreme Court emphasized that, while “indecent exposure is not a ‘victimless’ crime, any harm it may cause appears to be minimal at most.... [T]he nonviolence of the conduct ensures there is no danger of physical injury to the person who witnesses the exposure. Nor is there any convincing evidence that the person is likely to suffer either long-term or significant psychological damage. [Citation.]” (Lynch, supra, 8 Cal.3d at p.431.)
Unlike the defendant in Lynch, defendant in this case has an extensive criminal record, including violent offenses, and defendant’s crime was one that could potentially cause the victim to suffer either long-term or significant psychological damage. (See People v. Solis, supra, 90 Cal.App.4th at p. 1024.) Defendant’s present offense is merely a “confirmation of the defendant’s danger to society and the need to counter his threat with incapacitation.” (Andrade, supra, 538 U.S. at pp. 80-81.)
Defendant is a young man with a long history of theft, violence, or theft and violence related crimes of increasing severity, resulting in increasingly lengthy terms of incarceration. Defendant was on parole when he committed the current offenses, which involved threats of significant acts of violence. He is a high school dropout with no career prospects and is drawn to gang members. The trial court found that defendant’s performance on probation had been previously unsatisfactory. Given this background, the record lacks any evidence that defendant would be able to avoid falling back into his pattern of criminal behavior.
Clearly, defendant presents a danger to society. His continued involvement in serious felonious conduct (which is the actual focus of the punishment) is a threat to society, particularly in light of his past history of violent crime and the continuous escalation in the severity of his offenses.
We find that nothing about the sentence in this case shocks the conscience or offends notions of human dignity when looking at the offender or the offense.
ii. Punishment of more serious crimes in California
Defendant further claims the operation of the Three Strikes law is unconstitutional because it does not punish the recidivist status of the offender equally or rationally. We disagree.
Attempting to pursue some sense of proportionality between different recidivist offenders assumes a basis for comparison. (Cooper, supra, 43 Cal.App.4th at p. 826.) “When the fundamental nature of the offense and the offender differ, comparison for proportionality is not possible.” (Ibid.) “[T]here is no requirement that the Legislature penalize all culpable conduct or precisely structure penal sanctions so that all degrees of culpability are placed in their proper place in some continuum of penalties. [Citation.]” (Id. at p. 829.)
We conclude that the application of the Three Strikes law to the defendant in this case was constitutional.
IV. DISPOSITION
The judgment is affirmed.
We concur: MCKINSTER, J., KING, J.