Opinion
C039996.
7-22-2003
THE PEOPLE, Plaintiff and Respondent, v. ERIC GULBRONSON, Defendant and Appellant.
A jury convicted defendant Eric Gulbronson (Gulbronson or defendant) of battery by a prisoner on a correctional officer (Pen. Code, § 4501.5), and the court sentenced him to 25 years to life under the Three Strikes law (§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). We shall affirm the judgment.
Unless otherwise designated, all further statutory references are to the Penal Code.
One day, two correctional officers — Officers Brewer and Robbins — offered Gulbronson a shower while he was locked in his cell. Gulbronson accepted the offer, and following the usual procedure, stuck his hands out behind his back through the food port in the door and was handcuffed. The door was opened, and the officers escorted him to the shower. Gulbronson was carrying a large ball of laundry in his hands behind his back.
FACTUAL AND PROCEDURAL BACKGROUND
Gulbronson was an inmate in state prison housed in an administrative segregation unit. Prisoners in that section get a shower every other day. Officer Brewer explained at trial that although there is a weekly laundry service, inmates also bring laundry into the shower to wash. However, this practice slows down, and sometimes prevents the completion of, the process of getting all inmates showered.
An "Administrative Segregation Unit is a placement for an inmate who presents an immediate threat to the safety of the inmate or others, endangers institution security[,] or jeopardizes the integrity of an investigation of alleged serious misconduct or criminal activity." (Small v. Superior Court (2000) 79 Cal.App.4th 1000, 1005; Cal. Code Regs., tit. 15, § 3335.)
Gulbronson entered the shower room, and the shower door — a grate of bars like an old-fashioned jail door — was shut.
As described by Officer Brewer at trial, Gulbronson was being uncuffed through a port in the door by Officer Robbins, when Officer Brewer advised Gulbronson that next time he could not bring so much laundry into the shower. Gulbronson began yelling and screaming. He warned, "You want to go there, mother fucker. Its on between me and you."
Then Gulbronson spit "a big wad of spit" through the bars into Officer Brewers face, hitting him in the mouth and eyes. Officer Brewer was about two feet away. Gulbronson continued to scream profanity and tried to grab Officer Brewer, who backed up out of reach. The officer immediately washed his face and mouth out at a nearby utility sink. Officer Brewer then was examined at the prison hospital and at a community hospital.
This course of action may have been prompted by Gulbronsons diagnosed hepatitis C condition. As we will discuss, Gulbronson contends that the trial court improperly took this condition into account at his sentencing. However, the jury did not hear any evidence on the subject.
Officer Robbins, the only other witness at trial, testified to the events in a similar fashion, but more colorfully regarding Gulbronsons response to Officer Brewers admonishment about the laundry: "Inmate Gulbronson got real agitated and told Officer Brewer, You really want to go there, mother fucker, and he hocked up a big old lugie and spit in Officer Brewers face."
Gulbronson was charged with one count of felony battery under section 4501.5. The complaint also alleged that Gulbronson had four prior serious or violent felony convictions within the meaning of the Three Strikes law and had served two prison terms within the meaning of section 667.5, subdivision (b).
Section 4501.5 provides: "Every person confined in a state prison of this state who commits a battery upon the person of any individual who is not himself a person confined therein shall be guilty of a felony and shall be imprisoned in the state prison for two, three, or four years, to be served consecutively."
The jury convicted Gulbronson of felony battery under section 4501.5 and found the prior conviction allegations to be true.
Trial on the enhancements was bifurcated. The trial court later dismissed the prior prison term allegations.
Gulbronson moved to dismiss the strikes under section 1385. The trial court denied the motion and sentenced Gulbronson to a term of 25 years to life, concluding that "while this offense in and of itself would not warrant it, the background of the defendant does warrant it . . . ." Gulbronson appeals.
We shall supplement the facts as necessary to our analysis of Gulbronsons contentions on appeal.
DISCUSSION
I. Marsden Hearing
Gulbronson contends that "the trial court erred in failing to make proper inquiry into [his] reasons for asking that his appointed trial counsel be replaced pursuant to People v. Marsden (1970) 2 Cal.3d 118, 84 Cal. Rptr. 156, 465 P.2d 44 [(Marsden)]."
A.
At trial, after jury selection but prior to opening statements, Gulbronson told the judge that he wanted "to make a statement for the record before the proceedings." After the jury exited the courtroom, Gulbronson said, "I would like the record to reflect that I . . . perceive these proceedings to be a farce and a sham and the representation that the court has appointed for me I feel that that is also a farce and a sham and it implies a silent bill of retainer in violation of 452 section 93 entitled 42 United States Code section 1985 conspiracy to deprive people of their civil rights. [Sic.] I feel that my due process rights are being deprived. I feel that justice is being subverted, and I just [would] like the record to reflect that and if possible, have a Marsden hearing."
The trial court observed that Gulbronson had "been through all of the attorneys I believe who generally take [court-appointed] cases in this county," and "they all came and they have all for whatever reason asked to be relieved of the case and they didnt get along with you or you didnt get along with them." The court said that Gulbronsons present counsel (from another county) had a very good reputation there, and in the courts dealings with him, he had been aggressive in a "difficult case" and "had championed your rights as best he could under really adverse circumstances." The court concluded that the Marsden motion was "too late so we are going to have to go ahead."
However, the prosecutor expressed concern "that a Marsden motion [being] denied[,] without even considering [the] basis for it, might build into the record some appealable error." The court agreed that "[it] cant hurt the record by allowing it," even though the judge was concerned about the age of the case ("its so long of tooth"), and noted that Gulbronsons prior attorneys "have been capable[,] competent lawyers."
At the ensuing, closed Marsden hearing, the court inquired into Gulbronsons "problem" with his lawyer, Richard Maxion. Gulbronson said: "The problem now with Mr. Maxion in the conflict of interest that I have now with him is that everything that I have asked him to pursue or . . . issues that I have asked to [be] raised, according to procedural due process, the calling of my witnesses, the preliminary disqualification of Judge MacFarland on a 170.6 civil procedure [sic], witnesses, motions, all these things basically have been ignored by Mr. Maxion, and I dont feel that he is representing my interests. I feel that there is another interest being represented here and its surely not mine."
The judge asked Mr. Maxion if he wanted to say anything, and the latter inquired whether the court wanted him to do so. The court responded:
"No, I have indicated on the record before we went into closed session exactly my position with regard to you. I feel you have done more than a workmanlike job . . . and as I say I dont envy your position. You have my personal sympathy, because I think you have a very difficult client and a very difficult case. Notwithstanding that, I think you have done a workmanlike job and excellent job, and I think that you will continue to do so.
"With regard to what the defendant has said, you must understand, Mr. Gulbronson, you are not a lawyer, you dont have [a] legal education. I think your legal education I might guess probably is attributable to inmates in the jail. I have heard the same thing before[;] those inmates have been notoriously unsuccessful, by the way, and I am sure will continue to [be], because they dont have the skill, backgrounds, education or training to do this.
"Mr. Maxion is a polished lawyer. If he doesnt follow up on something that you feel is meritorious, its because it is not meritorious and its not going to help you and will probably hurt your case. Thats why he has done what he has done. So at this point its too late in the game in any event. The Marsden motion will be denied and we will proceed . . . ."
B.
The principles governing so-called Marsden motions are well settled. ""When a defendant seeks to discharge his appointed counsel and substitute another attorney, and asserts inadequate representation, the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of the attorneys inadequate performance. [Citation.] A defendant is entitled to relief if the record clearly shows that the first appointed attorney is not providing adequate representation [citation] or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result [citations]." [Citations.] [Citation.] Substitution is a matter of judicial discretion. Denial of the motion is not an abuse of discretion unless the defendant has shown that a failure to replace the appointed attorney would "substantially impair" the defendants right to assistance of counsel. [Citations.]" (People v. Hart (1999) 20 Cal.4th 546, 603, 976 P.2d 683;Marsden, supra, 2 Cal.3d at pp. 123-124.)
Admittedly, the hearing held by the court here was not a model Marsden hearing. The judge was mistaken in his comments that the motion was untimely; a motion to replace counsel may be made at any stage of the proceedings. (See People v. Smith (1993) 6 Cal.4th 684, 695, 863 P.2d 192; People v. Harrison (2001) 92 Cal.App.4th 780, 789.) And the judges initial reliance on his observation of defense counsels performance was an insufficient basis upon which to deny the Marsden motion because the purpose of such a proceeding is to permit the defendant to describe instances of purported incompetence that the court has not seen: "The defendant may have knowledge of conduct and events relevant to the diligence and competence of his attorney which are not apparent to the trial judge from observations within the four corners of the courtroom. . . . Thus, a judge who denies a motion for substitution of attorneys solely on the basis of his courtroom observations, despite a defendants offer to relate specific instances of misconduct, abuses the exercise of his discretion to determine the competency of the attorney." (People v. Leonard (2000) 78 Cal.App.4th 776, 787, quoting Marsden, supra, 2 Cal.3d at pp. 123-124; see also People v. Earp (1999) 20 Cal.4th 826, 876, 978 P.2d 15.)
Gulbronson also faults the court for its comments on defense counsels good reputation. There is, however, nothing remarkable or objectionable about the court assuring a dissatisfied defendant that his counsel is well qualified. (Cf. People v. Huffman (1977) 71 Cal. App. 3d 63, 79, 139 Cal. Rptr. 264.)
However, it is clear that the trial courts ultimate denial of the Marsden motion was based on defendants failure to present any specific instances of incompetence by his counsel, which would warrant the appointment of a new attorney. We conclude that the Marsden hearing was sufficient and that the denial of the motion was not an abuse of discretion for the following reasons:
First, the record shows that the trial court did satisfy its duty of inquiry by giving Gulbronson a full opportunity to relate specific instances of his attorneys purportedly inadequate representation and by listening to defendants statement without interruption. (See People v. Silva (2001) 25 Cal.4th 345, 367; People v. Hart, supra, 20 Cal.4th at pp. 603-604.)
Second, instead of relating specific instances of incompetence, Gulbronson made vague allegations that merely expressed dissatisfaction concerning generalized topics. But vague allegations of incompetence are insufficient to establish that counsel was not providing adequate representation or had become embroiled in such an irreconcilable conflict with the defendant that ineffective representation would likely result. (See People v. Silva, supra, 25 Cal.4th at p. 367; Ng v. Superior Court (1997) 52 Cal.App.4th 1010, 1022-1023, disapproved on another ground in Curle v. Superior Court (2001) 24 Cal.4th 1057, 1069, fn. 6; see People v. Earp, supra, 20 Cal.4th at pp. 875-876.)
Specifically, here, defendant merely complained that "everything that I have asked [my counsel] to pursue or . . . issues that I have asked to [be] raised, according to procedural due process, the calling of my witnesses, the preliminary disqualification of Judge MacFarland on a 170.6 civil procedure [sic], witnesses, motions, all these things basically have been ignored by Mr. Maxion, and I dont feel that he is representing my interests."
With the possible exception of the potential disqualification of Judge MacFarland — the judge before whom the case was being tried — all of Gulbronsons complaints failed to specify the purported instances of incompetency. And the issue of disqualifying the trial judge pursuant to Code of Civil Procedure section 170.6 was no more than a tactical matter, which disagreement was insufficient to compel discharge of appointed counsel, unless it signaled the complete breakdown in the attorney-client relationship. (People v. Crandell (1988) 46 Cal.3d 833, 859-860, 251 Cal. Rptr. 227, 760 P.2d 423, disapproved on another ground in People v. Crayton (2002) 28 Cal.4th 346, 364-365.) And Gulbronson failed to allege or provide any specificity concerning any such total breakdown.
Moreover, although Gulbronson failed to offer any reason at the Marsden hearing for disqualifying the trial judge, the court was well able to consider the merits of any such motion without additional explanation from defense counsel. (Code Civ. Proc., §§ 170.1, 170.3; cf. People v. Hines (1997) 15 Cal.4th 997, 1026, 938 P.2d 388.)
Third, "denial of the [Marsden] motion is not an abuse of discretion unless the defendant has shown that a failure to replace the appointed attorney would "substantially impair" the defendants right to assistance of counsel. [Citations.]" (People v. Hart, supra, 20 Cal.4th at p. 603.) But defendants disagreements all appeared to be tactical, namely, that his counsel was not pursuing his suggestions. Again, disagreements over tactical matters are insufficient to find that defendants right to assistance of counsel has been substantially impaired (unless they signal a complete breakdown in the relationship). (People v. Crandell, supra, 46 Cal.3d at pp. 859- 860.) In this case, in light of the vagueness of defendants allegations, defendant failed to show that the failure to replace his appointed attorney would substantially impair his right to assistance of counsel.
And fourth, courts have held that vague allegations of incompetence do not require the trial court to conduct any further inquiry. (See People v. McElrath (1985) 175 Cal. App. 3d 178, 184-185, 220 Cal. Rptr. 698 [generalized statement that defendant had proof that fingerprint on knife came from booking prints did not require further inquiry by the court]; People v. Young (1981) 118 Cal. App. 3d 959, 966, 173 Cal. Rptr. 700 [nothing in defendants statement that counsel had not taken an interest in trial, did not want to hear what defendant had to say, and was indifferent to defendants concern about the absence of African-Americans on the jury "required the court to make further inquiry to determine whether counsel could provide adequate representation"].)
C.
The thrust of Gulbronsons argument that the trial court wrongly denied his Marsden motion is that the "trial courts duty in a Marsden hearing is not merely to afford the defendant an opportunity to state his or her reasons for the claim of inadequate representation, but also to affirmatively inquire into the circumstances of any claim of counsels ineffectiveness." Gulbronson repeats this contention in his reply brief: "Merely giving [Gulbronson] the opportunity to state his complaints without making inquiry into the specifics and without asking trial counsel to address the complaints is not an adequate hearing in the context of this case where the trial court had already made statements indicating that it had prejudged the issue."
But Gulbronson cites no supporting authority for requiring the court to inquire into the circumstances underlying generalized, conclusory complaints, and we are aware of none. To the contrary, we have already noted that vague allegations of incompetence do not require the trial court to conduct any further inquiry. (People v. McElrath, supra, 175 Cal. App. 3d at pp. 184-185; People v. Young, supra, 118 Cal. App. 3d at p. 966.)
There is good reason for this. The Marsden procedure is meant to give the defendant an opportunity to explain the basis for his assertion that his representation is inadequate so that his right to assistance of counsel will not be substantially impaired. (Marsden, supra, 2 Cal.3d at p. 123; People v. Crandell, supra, 46 Cal.3d at p. 859.) It is not to place an obligation on the court to make a prima facie showing of impairment for defendant. Such a procedure would mandate a lengthy hearing for every instance of dissatisfaction, even in the middle of trial when little has been raised to question counsels effectiveness, which would lead to an unwarranted expenditure of judicial resources and undue delay.
Admittedly, while the court need not question thedefendant to elicit specifics of counsels alleged incompetence, under certain circumstances the court must inquire of defense counsel for an explanation of apparently incompetent acts or omissions. But this obligation arises only when specific important instances of the alleged inadequacy of representation are raised. As summarized by one appellate court: "Depending on the nature of the grievances related by defendant, it may be necessary for the court also to question his attorney. [Citation.] For example, in People v. Groce (1971) 18 Cal. App. 3d 292, at page 297, 95 Cal. Rptr. 688, the court held when a defendant asserts specific important instances of alleged inadequacy of [counsels] representation such as failure to secure potentially exonerating evidence, the court cannot deny a Marsden motion without inquiry into counsels reason for not introducing the evidence. But, this court held in People v. Penrod (1980) 112 Cal. App. 3d 738, 747, 169 Cal. Rptr. 533, inquiry into the attorneys state of mind is required only in those situations in which a satisfactory explanation for counsels conduct toward his client is necessary to determine whether counsel can provide adequate representation. Further, that a defendant disagrees with the trial preparation and strategy adopted by his appointed counsel does not trigger any duty of inquiry by the trial court. (Id. at p. 748.)" (People v. Turner (1992) 7 Cal.App.4th 1214, 1219.)
But nothing that Gulbronson said here merited explanation, that is to say, he failed to enumerate "specific important instances of alleged inadequacy of [counsels] representation . . . ." (People v. Turner, supra, 7 Cal.App.4th at 1219, quoting People v. Groce, supra, 18 Cal. App. 3d at p. 297.) Indeed, given the amorphousness of Gulbronsons complaints, it is not surprising that defense counsel did not respond. With the possible exception of his desire to disqualify the trial judge, defendants allegations were too vague to allow any meaningful response. And without any more specificity from defendant, no explanation was required to justify counsels failure to disqualify the trial judge since the failure to exercise a peremptory challenge would not constitute constitutionally inadequate representation. Accordingly, defendants comments did not trigger any duty on the part of the court to question counsel.
Defendant somewhat quixotically relies on People v. Groce, supra, 18 Cal. App. 3d at pages 296-297, to support his contention that the court had an affirmative duty to inquire further into the circumstances of his claim over his counsels inadequacy. But the court inGroce considered only the duty to question counsel, not defendant. (Ibid.) And the duty, identified in Groce, to inquire into defense counsels state of mind has been criticized. (See People v. Huffman, supra, 71 Cal. App. 3d at pp. 80-81.) Further, the circumstances of Groce highlight the insufficiency of Gulbronsons showing here. In Groce, the defendant, charged with assault with a knife, complained that the victim was not in fact injured, but that counsel had not called the doctor who treated the victim or subpoenaed the hospital records that might have established the absence of an inquiry. (People v. Groce, supra, 18 Cal. App. 3d at pp. 295, 297.) The court held that the trial judge had a duty to ask counsel for an explanation because the defendant "directed the courts attention to specific important instances of alleged inadequacy of his representation, i.e., the existence or nonexistence of stab wounds and other pertinent evidence that could have been established by hospital records." (Id. at pp. 296-297.)
In contrast, Gulbronsons comments here did not involve anything like the showing that the defendant made in Groce, i. e., that counsel did not investigate specified items of potentially exonerating evidence. The only specific instance of alleged inadequacy made by Gulbronson was his counsels failure to bring a motion to disqualify the judge who was at that moment hearing the Marsden motion. As mentioned, this decision was inherently tactical, even assuming that defendant had made a timely request to his counsel for such disqualification. As such, it would not support a substitution of counsel. (See People v. Turner, supra, 7 Cal.App.4th at p. 1219 ["a disagreement as to which motions should be filed is not sufficient reason to require substitution of counsel"]; see alsoNg v. Superior Court, supra, 52 Cal.App.4th at p. 1022.)
Gulbronson nonetheless argues that "even without a specific example of inadequate representation, the breakdown between counsel and client is sufficient to require substitution of appointed counsel." But Gulbronson never claimed that he had an irreconcilable conflict. We will not interpret an exceedingly vague and insufficient allegation of inadequate representation as a sufficient allegation of an irreconcilable conflict. Indeed, the Supreme Court in People v. Silva held that vague allegations were insufficient for either purpose. (People v. Silva , supra, 25 Cal.4th at p. 367.)
Gulbronson seeks to nonetheless bolster his claim of a conflict by contending that at trial, defense counsel "pursued a defense theory that was dependent on [defendant] testifying, but [defendant] did not testify," which "came as a surprise to trial counsel, who thought they had a good relationship, and the decision was made against counsels advice." But Gulbronsons contention that counsel thought they had a good relationship belies any irreconcilable conflict at the time of the Marsden motion. Further, defendant cannot compensate on appeal for what was absent at the time of his Marsden motion by bringing up matters subsequent to its denial. (People v. Berryman (1993) 6 Cal.4th 1048, 1070, 864 P.2d 40, disapproved on another ground in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1, 952 P.2d 673; People v. Smith, supra, 6 Cal.4th at p. 695.) "A reviewing court focuses on the ruling itself and the record on which it was made. It does not look to subsequent matters . . . ." (People v. Berryman, supra, 6 Cal.4th at p. 1070.)
In any event, even a disagreement over whether the defendant should testify at trial is a tactical matter that does not provide a basis for ordering the appointment of new counsel. (SeeNg v. Superior Court, supra, 52 Cal.App.4th at p. 1022; see also People v. Welch (1999) 20 Cal.4th 701, 729, 976 P.2d 754.)
Accordingly, we find no basis to conclude that the trial court failed to conduct a proper inquiry or abused its discretion in denying the Marsden motion. (People v. Smith, supra, 6 Cal.4th at p. 697.)
II. Character Evidence
Gulbronson next contends that the trial court erroneously allowed Officer Brewer "to testify, over defense objection, about [Gulbronsons] character and reputation for acting a certain way when someone confronts [him]. The testimony amounted to improper evidence that [defendant] is violent."
A.
The testimony to which Gulbronson objects concerned the circumstances surrounding the offense, and specifically, why Officer Brewer did not admonish Gulbronson about the laundry that he was carrying during the walk to the shower:
"Q And did you say anything to him about that on the way?
"A No, I didnt.
"Q Why not?
"A Past experience. He is a
"MR. Maxion: Your Honor, excuse me, I will object to that.
"THE COURT: You may answer the question. Overruled.
"THE WITNESS: Past experience with this inmate here Gulbronson
"MR. MAXION: I will object to this, Your Honor, as irrelevant.
"THE COURT: Its not irrelevant in light of the circumstances. We will let the jury decide. Overrule the objection, you may answer.
"THE WITNESS: He wasnt the type of inmate to me that you would want to confront being either unlocked out of the shower or out of his house [cell], so I chose not to say anything to him."
Defense counsel then moved to strike the answer, giving the following explanation in a sidebar:
"MR. MAXION: This introduced the whole subject of . . . his reputation in the prison prior to the incident.
"THE COURT: I think it is completely relevant to the relationship and the circumstances that happened, why he didnt say something with regard to the ball of laundry and why afterwards, and how this situation developed. I dont know what the basis of your objection is, but I think it is ill-founded.
"MR. MAXION: It would be [Evidence Code section] 352.
"THE COURT: Then it is overruled on that basis."
B.
On appeal, Gulbronson essentially contends that Officer Brewers testimony was inadmissible character evidence.
Evidence Code section 1101, subdivision (a), provides: "Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a persons character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion."
None of the statutory exceptions to the general rule are applicable here. (See, e.g., Evid. Code, § 1102 [character evidence offered by criminal defendant and rebuttal evidence by prosecution], § 1103 [evidence of character of victim offered by defendant and rebuttal by prosecution, including evidence of defendants violent character], § 1108 [evidence of defendants commission of another sexual offense], § 1109 [evidence of defendants commission of other domestic violence].)
The People preliminarily contend that the issue may not be raised on appeal, because defendants counsel did not mention Evidence Code sections 1101, 1102, or 1103, as a ground for the objection.
Although defense counsel did remark that the testimony "introduced the whole subject of . . . [Gulbronsons] reputation in the prison prior to the incident," we are of the view that defendant waived any objection based on Evidence Code section 1101. Evidence Code section 353, subdivision (a), requires that an objection must "make clear the specific ground of the objection." Here, when counsel was asked to do so, he relied exclusively on Evidence Code section 352. This ground of objection did not alert the trial court to Evidence Code section 1101; accordingly, the issue is waived. (Evid. Code, § 353; see People v. Kipp (2001) 26 Cal.4th 1100, 1124; People v. Visciotti (1992) 2 Cal.4th 1, 51-52, 825 P.2d 388.)
However, even assuming, without deciding, that Officer Brewers testimony was character evidence made inadmissible by Evidence Code section 1101 and that any objection thereto was preserved, any error in its reception was harmless. First, the challenged evidence — Gulbronson "wasnt the type of inmate . . . that you would want to confront" — was antiseptic in presentation and unemotional in impact. It did not describe any prior act of disobedience or violence. Second, this antiseptic and vague testimony could not have influenced the verdict in light of the uncontested, direct, and overwhelming evidence presented of Gulbronsons guilt: Officers Brewer and Robbins testified that when warned not to bring laundry in the shower next time, Gulbronson shouted a profane challenge to Officer Brewer and then spit "a big wad of spit" on him. Indeed, this was the only evidence of the current offense adduced at trial. In view of the overwhelming evidence and the antiseptic quality of the challenged testimony, it was not reasonably probable that a result more favorable for the defendant would have been reached in the absence of any error. (See People v. Watson (1956) 46 Cal.2d 818, 837, 299 P.2d 243; People v. Anderson (1987) 43 Cal.3d 1104, 1137, 240 Cal. Rptr. 585, 742 P.2d 1306; People v. Valencia (1968) 267 Cal. App. 2d 620, 630, 73 Cal. Rptr. 303.)
Gulbronson disagrees. He argues that "not only did the evidence establish for the jury that [Gulbronson] had a character trait or reputation for violence, it established that a correctional officer was sufficiently afraid of [Gulbronson] that he would not caution [him] about a relatively minor rule violation unless [he] was locked up at the time of the conversation." However, the testimony did not state that defendant had a reputation for violence. Instead, the testimony that defendant was not the type of inmate that one would wish to confront suggested no more than that Gulbronson would not react well to an admonition. In any event, that vague testimony could not have affected a verdict which was overwhelmingly supported by the uncontested testimony of the crime itself. There was simply no prejudice from the challenged (and brief) testimony.
III. Dismissal of Strikes
We next address Gulbronsons contention that the "trial court abused its discretion by sentencing appellant to 25 years to life under the Three Strikes law[,] where the current crime is based solely on the act of spitting, coupled with [Gulbronsons] status as a prison inmate. The trial court should have exercised its discretion under . . . section 1385 to dismiss one or more of the strike prior convictions for purposes of sentencing." We find no abuse of discretion.
"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, unless the sentencing court concludes that an exception to the scheme should be made because, for articulable reasons which can withstand scrutiny for abuse, this defendant should be treated as though he actually fell outside the Three Strikes scheme." (People v. Strong (2001) 87 Cal.App.4th 328, 337-338.)
In People v. Williams (1998) 17 Cal.4th 148, 948 P.2d 429, the California Supreme Court ruled that a defendant could be deemed to fall outside the spirit of the Three Strikes law, in whole or in part — and thus one or more strikes dismissed — on the basis of the following formulation:
"We therefore believe that, in ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law, on its own motion, in furtherance of justice pursuant to Penal Code section 1385[, subdivision] (a), or in reviewing such a ruling, the court in question 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 schemes 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. If it is striking or vacating an allegation or finding, it must set forth its reasons in an order entered on the minutes, and if it is reviewing the striking or vacating of such allegation or finding, it must pass on the reasons so set forth." (People v. Williams , supra, 17 Cal.4th at p. 161.)
Conversely, where the trial court has refused to depart from the statutory scheme, it need not articulate any reasons (People v. Gillispie (1997) 60 Cal.App.4th 429, 433), and we reverse only where "the trial courts decision was irrational or arbitrary. It is not enough to show that reasonable people might disagree about whether to strike one or more of his prior convictions. Where the record demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the trial courts ruling, even if we might have ruled differently in the first instance." (People v. Myers (1999) 69 Cal.App.4th 305, 309-310.)
"Although variously phrased in various decisions [citation], [the abuse of discretion standard] asks in substance whether the ruling in question "falls outside the bounds of reason" under the applicable law and the relevant facts [citations]." (People v. Garcia (1999) 20 Cal.4th 490, 503, 976 P.2d 831, quoting People v. Williams, supra, 17 Cal.4th at p. 162.)
Accordingly, in this case, in order to reverse the trial courts decision to follow the sentencing norm established by the Three Strikes law, we must find that a determination that the defendant falls within the spirit of the Three Strikes law "" falls outside the bounds of reason" under the applicable law and the relevant facts [citations]." (People v. Garcia, supra, 20 Cal.4th at page 503.) And under the California Supreme Courts decision in People v. Williams, supra, 17 Cal.4th at page 161, that requires that no reasonable person could deem the defendant to fall wholly within the letter and spirit of the Three Strikes law, in light of the nature and circumstances of his present felony and prior serious and/or violent felony convictions and the particulars of his background, character, and prospects.
The People contend that a sentencing courts exercise of discretion not to dismiss a strike is not reviewable. (See People v. Benevides (1998) 64 Cal.App.4th 728, 734.) However, as pointed out in People v. Myers, supra, 69 Cal.App.4th at page 309, that proposition in Benevides was qualified by a footnote, which withdrew that conclusion and merely stated that the trial courts abuse of discretion must be affirmatively shown by the record. (People v. Myers, supra, 69 Cal.App.4th at p. 309; Benevides, supra, at p. 733, fn. 6.) Accordingly, we agree with numerous courts which have determined that the decision not to dismiss a strike may be reviewed for an abuse of discretion, albeit under a deferential abuse of discretion standard. (See, e.g., People v. Cole (2001) 88 Cal.App.4th 850, 873, fn. 9; People v. Stone (1999) 75 Cal.App.4th 707, 716-717; People v. Barrera (1999) 70 Cal.App.4th 541, 553, fn. 7; People v. Myers, supra, 69 Cal.App.4th at pp. 309-310.)
The trial court in this case did not act outside the bounds of reason in concluding that defendant fell within the spirit of the Three Strikes law within whose letter he squarely fell. To the contrary, the nature and circumstances of defendants prior serious or violent felony convictions and the particulars of his background, character, and prospects suggest that he falls within the laws spirit. Beginning in 1988 when Gulbronson was 17, defendant committed seven felonies over an eight-year period, including two burglaries while outside prison and four assaults with a deadly weapon involving actual or potential great bodily injury in 1995 while in prison (the strikes). Defendants other felony was that of a felon in possession of a firearm. Gulbronson was also convicted of two misdemeanors and a probation violation. In sum, Gulbronson is a career criminal, for whom not even prison has interrupted his reign of crime.
In People v. Strong, supra, 87 Cal.App.4th at page 338, in light of the fact that the Three Strikes law was designed to require longer sentences for career criminals who have committed at least one serious or violent felony, we concluded that "extraordinary must the circumstance be by which a career criminal can be deemed to fall outside the spirit of the very scheme within which he squarely falls once he commits a strike as part of a long and continuous criminal record, the continuation of which the law was meant to attack."
We find no such extraordinary circumstance present here. To the contrary, there is no indication in the record that Gulbronson has ever or will ever abandon his criminal career or eschew misconduct. Gulbronson has spent most of his adult life in prison. Yet, while in prison, from 1993 through 2001, he not only committed the four assault convictions charged as strikes, but 36 rule violations, including many incidents involving physical violence against other inmates, as well as sexual battery, indecent exposure, confrontations with prison guards and staff, and numerous acts of significant property destruction, including defacing state property with a swastika. Rather than qualifying Gulbronson for an exemption from the Three Strikes law, his prison record suggests that his character and prospects are particularly poor for life outside prison. (People v. Williams, supra, 17 Cal.4th at p. 161.)
Gulbronson observes in passing that the four convictions charged as strikes "occurred on the same day and resulted from guilty pleas," and the "defense assertion that nobody was injured in those cases went unchallenged." We do not see any mitigating effect from these circumstances, when we consider the assaults took place in a supervised prison environment. Four assaults with a deadly weapon in the same incident, three of them involving correctional officers, paints a picture of a very violent episode. Despite the fortuity that no one was injured — if that is so (the abstract of judgment refers to one of the assaults as involving great bodily injury and a deadly weapon) — Gulbronson cannot argue his record does not include actual violence or that the 1995 incident was remote in time. (People v. Garcia , supra, 20 Cal.4th at p. 503; People v. Strong, supra, 87 Cal.App.4th at pp. 340-341.) Indeed, in the context of a supervised prison setting, we would expect that assaults on correctional officers would be halted before serious injuries resulted. More disconcerting is that the violence occurred in a supervised prison setting where the opportunities for such are more constrained. Finally, Gulbronsons plea of guilty to the charges does not indicate that the incidents were less serious, or that the evidence of his guilt was less compelling, than if a jury had convicted him.
Gulbronson also points to the nature of his current felony as a basis for taking him outside the spirit of the Three Strikes law. He argues that "the current offense involved spitting, nothing more. There was no injury. If the act had occurred outside the prison walls, it could be punished as a misdemeanor."
But battery in a prison upon a person not himself a prisoner is a felony, not a misdemeanor. ( § 4501.5.) Regardless of whether outside prison, spitting on a private citizen may be viewed as a mere misdemeanor and insult; in prison, spitting has dangerous consequences beyond the offensiveness of the act to the victim. In the prison environment, the act of spitting on a prison guard is not only a willful and unlawful use of force or violence upon another that qualifies as a battery (see § 242; People v. McGlothin (1998) 67 Cal.App.4th 468, 472; People v. MacKenzie (1995) 34 Cal.App.4th 1256, 1264, 1266), but it is an act of provocation and contempt that cannot be tolerated in an environment that depends on order and control. Unpunished, spitting on a prison guard may incite other prisoners and can be a prelude for more forceful and injurious attack. Indeed, here, Gulbronson issued a violent challenge before spitting on Officer Brewer and then attempted to grab him over the top of the bars of the shower door. We find nothing mitigating about his conduct.
Moreover, the offensiveness of the act was exacerbated by Gulbronsons knowledge that he had hepatitis C, an undisputedly serious, infectious disease. Gulbronson had been diagnosed with hepatitis C in prison in 1995. But Gulbronson contends that the risk of infection from his spitting a large quantity of saliva into Officer Brewers eyes and mouth was not serious, because hepatitis C is communicated primarily through contact with infected blood. Nonetheless, Gulbronsons knowledge that he had an infectious disease certainly supported an inference that he believed that he had a weapon that could cause the prison officer concern that he might become infected. Officer Brewers response to being hit with defendants spit supports that inference. Accordingly, we do not agree that the offense was minor.
In conclusion, our review of defendants circumstances, including his long criminal record, the nature of his current felony, the violent nature of his prior strikes, and his violent, destructive, and refractory behavior in prison, leads us to conclude that the trial court did not abuse its discretion in declining to dismiss his prior strikes.
IV. Cruel and Unusual Punishment
Finally, Gulbronson contends "that a sentence of 25 years to life under the Three Strikes law is grossly disproportionate to his crime and recidivist record," and therefore violates the federal and state constitutional ban on cruel and unusual punishment.
Gulbronson did not raise this issue in the trial court. We nonetheless consider the merits of this claim in light of his alternative claim of ineffective assistance of counsel, which would require us to consider the merits of the claim in any event. (See People v. DeJesus (1995) 38 Cal.App.4th 1, 27; People v. Cortez (1999) 73 Cal.App.4th 276, 286, fn. 10.)
A.
Most recently, in Ewing v. California (2003) 538 U.S. ___ [155 L. Ed. 2d 108, 123 S. Ct. 1179] (Ewing), a majority of the United States Supreme Court agreed that the Eighth Amendment had either no proportionality test, or at best, a requirement that sentences not be grossly disproportionate to the crime. In Justice OConnors plurality opinion, the high court expressly stated that it would defer to the California Legislatures enactment of the Three Strikes law: "Though three strikes laws may be relatively new, our tradition of deferring to state legislatures in making and implementing such important policy decisions is longstanding. [Citations.] [P] Our traditional deference to legislative policy choices finds a corollary in the principle that the Constitution does not mandate adoption of any one penological theory. [Citation.] . . . [P] When the California Legislature enacted the three strikes law, it made a judgment that protecting the public safety requires incapacitating criminals who have already been convicted of at least one serious or violent crime. Nothing in the Eighth Amendment prohibits California from making that choice. To the contrary, our cases establish that States have a valid interest in deterring and segregating habitual criminals. [Citations.]" (Ewing, supra, 538 U.S. at p. ___ [155 L. Ed. 2d at pp. 119-120].)
It follows that in this case, the Eighth Amendment does not prohibit California from applying the Three Strikes law to a habitual criminal whose violent strikes have taken place in the confined environment of prison where deterrence and restraint should have had their maximum impact.
Indeed, in Ewing, the Supreme Court held that a prison term of 25 years to life for a repeat offender who shoplifted nearly $ 1,200 worth of merchandise was not cruel and unusual punishment. (Ewing, supra, 538 U.S. at p. ___ [155 L. Ed. 2d at pp. 122-123].)
And in Harmelin v. Michigan (1991) 501 U.S. 957 [115 L. Ed. 2d 836, 111 S. Ct. 2680], a majority of the United States Supreme Court rejected an Eighth Amendment challenge to a sentence of life in prison without the possibility of parole for a first-time offender convicted of possessing 672 grams of cocaine.
Further, in Rummel v. Estelle (1980) 445 U.S. 263 [63 L. Ed. 2d 382, 100 S. Ct. 1133] (Rummel), the high court "upheld a life sentence for a repeat offender after a felony conviction of receiving $ 121 by false pretences, with one prior felony conviction for credit card fraud worth $ 80 and another prior felony conviction for forging a $ 28 check. [Citation.] The court reasoned that society is warranted in imposing increasingly severe penalties on those who repeatedly commit felonies. If increased penalties do not deter the repeat offender, then society is warranted in segregating that person for an extended period of time." (People v. Martinez (1999) 71 Cal.App.4th 1502, 1512, citing Rummel, supra, 445 U.S. at pp. 284-285 [63 L. Ed. 2d at pp. 397-398].)
In this case, even defendants imprisonment in an administrative segregation unit could not restrain him from engaging in an act of battery against a prison guard. A 25-year-to-life sentence to a habitual and violent offender, whose behavior consistently shows that he will not be deterred from violent acts, does not violate the Eighth Amendment.
Gulbronson nonetheless argues that he committed a minor crime that caused no injury and that could be charged as a misdemeanor outside of prison. But as we explained in the last section, ante, not only is spitting provocative of violence, but Gulbronsons knowledge that he was afflicted with a serious infectious disease exacerbated the act. Moreover, the Legislatures specification in section 4501.5 that any battery committed by a prisoner on a non-prisoner shall be punished as a straight felony by a term of two, three, or four years, to be served consecutively, reflects a legislative determination that this offense is profoundly different from an ordinary battery and requires an extra measure of deterrence. The Eighth Amendment does not prevent the legislature from making this judgment. Indeed, the deterrence necessary to maintain order essential to the correctional system is one area where deference to the Legislature should be greatest.
Finally, our constitutional review of a Three Strikes sentence must focus on the defendants recidivism, and not simply his most recent felony. After all, Gulbronson received a life sentence not because he committed a battery on Officer Brewer, but because this was the current crime of an unreconstructed career criminal. In light of Gulbronsons prior criminality, much of which has occurred in the supervised setting of prison, a 25-year-to-life sentence is not grossly disproportionate for yet another crime against prison authority.
B.
"To determine whether a sentence is cruel and unusual under the California Constitution as applied to a particular defendant, a reviewing court must examine the circumstances of the offense, including motive, the extent of defendants involvement in the crime, the manner in which the crime was committed, and the consequences of the defendants acts. The court must also consider the personal characteristics of the defendant, including his or her age, prior criminality, and mental capabilities. [Citation.] If the penalty imposed is grossly disproportionate to the defendants individual culpability [citation], so the punishment "shocks the conscience and offends fundamental notions of human dignity" [citation], the court must invalidate the sentence as unconstitutional." (People v. Lucero (2000) 23 Cal.4th 692, 739-740; People v. Dillon (1983) 34 Cal.3d 441, 479, 194 Cal. Rptr. 390, 668 P.2d 697.)
Employing similar reasoning to that set forth in our discussion concerning the Eighth Amendment, California courts have regularly rejected the contention that a Three Strikes sentence of 25 years to life for a "minor" current felony offense shocks the conscience so as to violate the constitutional ban on cruel and unusual punishment. (See, e.g., People v. Romero (2002) 99 Cal.App.4th 1418, 1424-1433 [25 years to life for felony petty theft, stealing a magazine]; People v. Mantanez (2002) 98 Cal.App.4th 354, 359-367 [same sentence for heroin possession and receiving stolen property]; People v. Martinez, supra, 71 Cal.App.4th at pp. 1509-1513 [same sentence for methamphetamine possession and attempting by threat to deter police officer from carrying out his duty]; People v. Goodwin (1997) 59 Cal.App.4th 1084, 1093-1094 [same sentence for commercial burglary and felony petty theft, shoplifting pair of pants]; People v. Cooper (1996) 43 Cal.App.4th 815, 820-828 [same sentence for felon in possession of firearm].) Significantly, none of these cases involved current offenses that caused injury to the victim, and several of them were crimes that could have been prosecuted as misdemeanors.
The obvious fallacy in the contention that the Three Strikes sentence here is disproportionate to the current offense is that the defendant "is not subject to a life sentence merely on the basis of his current offense but on the basis of his recidivist behavior. Recidivism in the commission of multiple felonies poses a manifest danger to society[,] justifying the imposition of longer sentences for subsequent offenses. [Citations.]" (People v. Stone, supra, 75 Cal.App.4th at p. 715, quoting People v. Kinsey (1995) 40 Cal.App.4th 1621, 1630.)
Gulbronson suggests, however, that his sentence is disproportionate to his recidivism as well. He contends that his "recidivist conduct while in custody is the product of mental problems that are exacerbated when [he] is confined." Gulbronson notes that psychological evaluations that were prepared to assess his competency to stand trial under section 1368 indicate an underlying paranoia by which he perceives himself as the target and victim of conspiracies by prison staff. He notes that his prior strikes involved assaults on correctional staff and officers.
The court reviewed the reports of two psychologists and determined that Gulbronson was competent to stand trial.
To the extent that Gulbronson is suggesting that he is not prone to misconduct outside prison, his record suggests otherwise. First, he has failed to account for the felonies and misdemeanors that led to two prison terms prior to the one served at the time of the current offense (and the prior strike offenses). Second, nothing in the evaluation upon which Gulbronson relies indicates that his behavior — which stemmed from what the psychologist described as a "textbook case of aggressive sociopathic personality mixed with significant underlying paranoid features or paranoia" — was limited to prison. To the contrary, the report went on to state that Gulbronsons "propensity toward perceiving himself as the victim rather than the perpetrator, the one injured rather than [the one] doing the injury to others, . . . frequently results in combinations of outbursts and destructive types of behavior that have been noted both inside and outside Correctional settings." (Italics added.) This evaluation gives us no confidence that Gulbronsons grim record of dozens of rule violations involving violent and destructive conduct in prison, not to mention his four convictions for assault with a deadly weapon, will not be repeated if or when he is released. Therefore, Gulbronsons personal characteristics, including his prior criminality, do not support the contention that his sentence was so grossly disproportionate as to shock the conscience and offend notions of human dignity. (People v. Lucero, supra, 23 Cal.4th at pp. 739-740.)
Gulbronson lastly argues that his sentence is disproportionate as compared to that imposed for other crimes in California (an intrajurisdictional comparison) and for similar crimes in other states (an interjurisdictional comparison).
Both our high court and the United States Supreme Court have formulated "techniques" or "objective factors" that include a comparative review of other criminal penalties as secondary considerations for determining whether sentences are grossly disproportionate. (See In re Lynch (1972) 8 Cal.3d 410, 425-427, 105 Cal. Rptr. 217, 503 P.2d 921; Solem v. Helm (1983) 463 U.S. 277, 290-292 [77 L. Ed. 2d 637, 649-650, 103 S. Ct. 3001].)
But other-crimes and other-states comparisons are not mandatory or even routine. (See People v. Weddle (1991) 1 Cal.App.4th 1190, 1194-1195, 1196, 1198, fn. 8.) In California, the main technique is to examine the nature of the offense and the offender. (See People v. Dillon, supra, 34 Cal.3d at p. 479; People v. Young (1992) 11 Cal.App.4th 1299, 1308.) "California cases, relying on federal cases interpreting the Eighth Amendment, have declined to find that comparative, intercase proportionality review is required under the state Constitution. [Fn. omitted.] [Citations.]" (People v. Weddle, supra, 1 Cal.App.4th at p. 1196.)
And Justice Kennedy, in his concurring opinion in Harmelin v. Michigan (in which the greatest number of justices joined), said that "intrajurisdictional and interjurisdictional analyses are appropriate only in the rare case in which a threshold comparison of the crime committed and the sentence imposed leads to an inference of disproportionality. . . . [P] The proper role for comparative analysis of sentences, then, is to validate an initial judgment that a sentence is grossly disproportionate to a crime." (Harmelin v. Michigan, supra, 501 U.S. at p. 1005 [115 L. Ed. 2d at pp. 871-872].)
Justice Scalia, joined by the Chief Justice, in Harmelin v. Michigan rejected proportionality review altogether and concluded that Solem v. Helm was wrongly decided. (Harmelin v. Michigan, supra, 501 U.S. at p. 965 [115 L. Ed. 2d at pp. 845-846].)
We do not find this case to be one where a comparative analysis is required. In light of the defendants recidivism and his present crime — which even a prison setting could not restrain — his 25-year-to-life sentence is not grossly disproportionate.
Moreover, a comparative analysis is often unwieldy and uninformative, because the circumstances of the offense and offender — to which the comparison is to be made — have unique characteristics, as the present case illustrates. "Proportionality assumes a basis for comparison. When the fundamental nature of the offense and the offender differ, comparison for proportionality is not possible." (People v. Cooper, supra, 43 Cal.App.4th at p. 826.)
And even if a comparative analysis were appropriate, Gulbronson had the burden "of establishing that his punishment is greater than that imposed for more serious offenses in California and that similar offenses in other states do not carry punishments as severe." (People v. Ayon (1996) 46 Cal.App.4th 385, 399, disapproved on another ground in People v. Deloza (1998) 18 Cal.4th 585, 600, fn. 10, 957 P.2d 945; see also People v. Thongvilay (1998) 62 Cal.App.4th 71, 88.)
But Gulbronson has failed to carry this burden. He acknowledges that California courts have held that a comparison of sentences for other crimes is inapposite unless the defendants recidivism is taken into account. (See People v. Ayon, supra, 46 Cal.App.4th at p. 400.) Yet, Gulbronson compares his Three Strikes sentence with sentences imposed for single, violent felonies, such as murder, rape, robbery, and carjacking. And Gulbronson confines his interjurisdictional comparison to only four states — a sample too small and too equivocal to be of any use. Indeed, Gulbronson concedes that those four states potentially punish spitting on a prison guard as a felony and cannot establish that a recidivist who commits such a felony would not receive a lengthy sentence in those states. We therefore reject Gulbronsons contention that an intrajurisdictional or interjurisdiction review supports the unconstitutionality of his sentence.
Accordingly, under either the federal or state Constitution, this case is not one where the Three Strikes sentence is so grossly disproportionate to the offense committed by a violent recidivist defendant that it shocks the conscience and offends fundamental notions of human dignity. (People v. Lucero, supra, 23 Cal.4th at p. 740.)
DISPOSITION
The judgment is affirmed.
We concur: SIMS, Acting P.J. NICHOLSON, J.