Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FVI701119 John M. Tomberlin, Judge.
Richard Jay Moller, 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, Lilia E. Garcia and Meagan J. Beale, Deputy Attorneys General, for Plaintiff and Respondent.
MILLER, J.
A jury convicted defendant Anthony McKinney of corporal injury to a cohabitant (count 1—Pen. Code § 273.5, subd. (a)) and the lesser included offense of simple assault on count 4 (Pen. Code, § 240), a misdemeanor. The jury further found true allegations that defendant had suffered four prior strike convictions. After denying defendant’s Romero motion, the court sentenced defendant to 25 years to life on count 1.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
On appeal defendant makes five contentions: (1) the court’s admission of defendant’s prior acts of domestic violence pursuant to Evidence Code section 1109 violated defendant’s federal due process rights; (2) the trial court failed to properly balance the probative value of defendant’s prior acts with their prejudicial effect; (3) the court’s instruction of the jury with CALCRIM No. 852, the standard jury instruction given when section 1109 evidence is admitted at trial, violated defendant’s due process rights; (4) the trial court abused its discretion in declining to strike three of defendant’s four prior strike convictions; and (5) the trial court’s sentence violates state and federal constitutional prohibitions against cruel and/or unusual punishment. We affirm the judgment in full.
All further statutory references are to the Evidence Code unless otherwise indicated.
FACTUAL AND PROCEDURAL HISTORY
On May 24, 2007, Deputy Sheriffs Floyd Stone and Jarrod Burns were dispatched to defendant’s residence regarding a domestic disturbance. The front door of the home was open; both deputies heard yelling from inside. They entered the home and detained defendant.
Deputy Burns interviewed Candie Johnson, defendant’s girlfriend. Johnson informed Deputy Burns that she and defendant were arguing. Defendant grabbed her face by the sides and squeezed her head. Defendant then threw her to the bed. She repeatedly attempted to get up from the bed; however, defendant continued to throw her back down. At some point, defendant bit her nose. When the opportunity presented itself, Johnson said she ran from the room. Deputy Burns observed two injuries to Johnson’s nose.
As Johnson exited the room, her daughter, Glynesha Phillips, grabbed one of her arms to pull her away from defendant. Defendant grabbed Johnson’s other arm and pulled her in the opposite direction. Defendant charged Phillips, knocking her into Clarize Swanson, Johnson’s mother, who fell to the ground. Later, defendant and Phillips struggled over a knife. Defendant gained possession of the knife. Swanson was taken to the hospital where she informed Deputy Burns that while Johnson and defendant were arguing, defendant pushed Swanson, causing her to fall to the floor.
Deputy Stone interviewed Phillips, who informed him that she awoke to screaming. She went to her mother’s bedroom door where she asked if Johnson was okay. Johnson replied that she was not. Defendant told Phillips to “get the fuck away from the door.” Johnson exited the room; Phillips grabbed Johnson’s wrist to pull her away from defendant. Defendant then pushed Phillips and started punching her in the face. Phillips threw a plate at defendant. Defendant lunged at Phillips, and then pushed her, causing her to fall onto Swanson.
Phillips said that defendant then grabbed a lamp and attempted to strike her in the face with it. Defendant succeeded in hitting her in the leg with the lamp five to six times. Phillips ran downstairs where she obtained a knife with which to defend herself. She ran outside; defendant followed with the lamp still in his possession. Phillips ran back inside the house; defendant threw the lamp at her but missed. Defendant then forced his way into the house, punched Phillips several times in the face, and struggled with her over possession of the knife. As defendant obtained possession of the knife from her, Phillip’s arm was scratched by the knife.
Deputy Stone observed that Johnson had swelling to her lip and a bleeding laceration to her nose. He also observed that Swanson had a swollen, disfigured wrist. The People charged defendant by first amended information with cohabitant abuse against Johnson (count 1—Pen. Code, § 273.5, subd. (a)); battery with serious bodily injury against Swanson (count 2—Pen. Code, § 243, subd. (d)); elder or dependent adult abuse against Swanson (count 3—Pen. Code, § 368, subd. (b)(1)); assault with a deadly weapon, a knife, against Phillips (count 4—Pen. Code, § 245, subd. (a)(1)); and assault with a deadly weapon, a lamp, against Phillips (count 5—Pen. Code, § 245, subd. (a)(1)). Trial on the prior strike allegations was bifurcated from that of the substantive offenses.
At trial, Johnson testified that she, Swanson, her 20-year-old-daughter Phillips, her 17-year-old-daughter Melissa Powell, and defendant were all living together on May 24, 2007. She was in her upstairs bedroom with defendant engaged in an argument. Defendant grabbed her and held her by her arms. She attempted to get up off the bed and hit her nose on defendant, injuring it.
Johnson later exited the room and was talking with Swanson when her daughters came out and noticed Johnson’s face bleeding. Defendant came out and grabbed one of her arms. Phillips grabbed the other. They were both pulling Johnson in opposite directions, like a tug-of-war. Phillips shoved defendant in the stomach. Defendant pushed Phillips back. Phillips grabbed a fire extinguisher and threw it at defendant. Defendant grabbed it, then charged towards Phillips. Phillips attempted to jump over the bed; Swanson fell to the ground and hollered out. Johnson believed that Phillips had knocked Swanson over. Swanson’s wrist bone was dislocated.
Johnson did not recall telling an investigator that defendant grabbed her by the face and squeezed her head, charged her mother, or knocked her mother over. She did not remember testifying at the preliminary hearing that defendant had grabbed and squeezed her head. She recalled telling an investigator that defendant had grabbed her and bit her nose; however, she only said that because she was mad. Johnson was not sure whether defendant actually bit her, though she acknowledged that his teeth came in contact with her nose. She did not recall telling Powell that defendant had bit her nose.
Johnson later moved because she was being harassed and stalked by women she believed were connected with defendant. She visited defendant in jail several times. She put money on defendant’s books at the jail. She sent him cards while he was in custody. Johnson testified that she still loved defendant and did not want to see him convicted.
Swanson testified that Phillips knocked her down while running around throwing objects at defendant. Swanson’s wrist was broken. Defendant did not push Swanson to the ground.
Phillips testified she awoke to her mother’s screaming; Johnson was asking for Swanson to call the police. When Johnson exited her bedroom, Phillips saw blood on her mother’s face. Phillips grabbed her mother’s arm; defendant grabbed Johnson’s other arm. They engaged in a tug-of-war with Johnson. Defendant then pushed Phillips. Phillips picked up a fire extinguisher and attempted to hit defendant with it; she was “pretty sure” she hit him with it. Defendant grabbed it from her; she ran, but he chased after her.
Phillips grabbed a lamp; defendant snatched it from her. Defendant hit her in the leg with the lamp more than once. Swanson was next to them as the aforementioned struggle ensued. Phillips testified that she somehow ended up on top of Swanson: “I don’t remember if he pushed me; but I know I ended up on top of my grandmother, and he was on top [of] me, and her wrist got broke.” She testified she was “pretty sure” she was pushed.
Phillips ran downstairs; defendant followed. Phillips grabbed a kitchen knife to defend herself. Defendant threw the lamp at her, but it missed. Defendant attempted to take the knife from Phillips. Phillips incurred a cut to her left arm while they were fighting over the knife; however, he never tried to stab her with it.
Phillips admitted perjuring herself extensively at the preliminary hearing: She testified at the preliminary hearing that defendant did not hit her in the leg with the lamp, that she had possibly pushed him first, that defendant did not push her on top of her grandmother, and that she did not know how she acquired the scratch on her arm. Phillips testified that she lied at the preliminary hearing in order to help her mother; Johnson was still talking with defendant and wanted the case dropped. She lied because after speaking with her mother, Phillips believed that is what her mother wanted her to do.
At the close of evidence, defendant moved for dismissal of all counts pursuant to section 1118.1. The People moved to dismiss count 3. The court granted only the latter motion, delineating that count 4 would now become count 3 and count 5 would now become count 4. A second amended information reflecting those changes was subsequently filed; defendant was arraigned on the amended information. The jury acquitted defendant on counts 2 and 3.
DISCUSSION
A. Prior Acts Evidence
1. Facts
Prior to trial, the People filed a trial brief moving in limine to introduce evidence of defendant’s prior convictions for corporal injury to a cohabitant (Pen. Code, § 273.5, subd. (a)), assault with a firearm (Pen. Code, § 245, subd. (a)(2)), kidnapping (Pen. Code, § 207, subd. (a)), and false imprisonment (Pen. Code, § 236) on June 21, 1995, against Rowena Burgos-Campos; a prior act of domestic violence against Johnson in October 2006 reported by her to have involved defendant slapping her so hard she fell to the ground and for which she filed a police report; and another undated, vaguely-recounted act of domestic violence against Johnson.
Later discussions between the court and counsel make it apparent that one of the offenses for which defendant was convicted in 1995 was actually committed against defendant’s mother, Mildred Robertson. Thus, the People indicated that they also wished to use that prior conviction to impeach Robertson if she testified on behalf of the defense, maintaining that any such testimony was inherently tainted by fear Robertson might have of defendant.
On September 2, 2008, the court conducted a lengthy hearing regarding admission of the prior acts. The court noted that section 1109, subdivision (e), prohibits admission of acts occurring more than 10 years prior to the charged offense unless the court determines that admission is in the interest of justice. The People contended that the interest of justice requirement was met in this case by admission of the 1995 prior convictions because defendant had been imprisoned from 1995 to 2003: “He did not really have the opportunity to commit any more domestic violence during that time and that he picked up a new domestic violence incident in 2006.” The court repeatedly indicated its inclination to spend additional time researching the matter prior to ruling on admission of the earlier prior act.
The court gave a tentative ruling that the October 2006 prior act would be admitted: “I think that as far as the October 2006 incident, I don’t think it’s more prejudicial than it is probative. I think it’s exactly what the law intends to have happen... especially with the same victim.” “It’s also extremely probative, so under those circumstances, I am inclined to allow that to come in....” The court asked the parties to conduct additional research on the earlier prior act. It indicated that they should come back that afternoon for an informal hearing off the record. The minute order indicates the court later reconvened on the matter. A reporter’s transcript of that hearing is not part of the record.
Two days later, the court again held a hearing regarding the admission of defendant’s prior acts pursuant to section 1109. The People reiterated their contention that the 1995 convictions were admissible in the interest of justice due to defendant’s intervening near nine-year period of incarceration between December 1994 and October 2003. The court agreed: “My intention is to rule that in the interest of justice because of the fact that [defendant] spent most of that ten-year period incarcerated and therefore was not subject to being prosecuted for anything of the nature of a [Penal Code section] 273.5 [offense], my intention is to extend that period and let that conviction come in. [¶]... [¶]... I think the interests of justice are best served by not allowing [defendant] to have—to give the impression of a person who is a peaceful individual who doesn’t have a propensity for these kind of offenses. That is not more prejudicial than probative in my opinion. It is probative, and it needs to be let in, and the reason is also because I think the circumstances of the fear—if there is such a fear—by Ms. Robertson would be related not just to the violence by [defendant] towards Ms. Robertson but also the violence by [defendant] towards someone other than Ms. Robertson, that is to say, the other victim in the particular incident. [¶] I think the fact that there was a [Penal Code section] 245, [subdivision] (a)(2) [conviction] ten years prior is probative. I don’t think it’s remote. I think it is more prejudicial than probative [sic]....”
The court excluded admission of evidence regarding defendant’s 1985 conviction for assault with a firearm. However, the prosecutor noted that “I was not trying to get the 1985 incident [in] as [section] 1109 evidence. I just want to make it clear that I am not to impeach Ms. Robertson on the knowledge of the 1985 [conviction].” The court replied, “That’s correct, whether she knows about it or not. I think it’s cumulative at this point and more prejudicial than it is probative.” The details of the 1985 offense do not appear anywhere in this record, making it apparent that the circumstances were most likely discussed in the off-record proceedings. Thus, it is apparent that neither the people nor the court ever considered the admission of evidence of the offense underlying defendant’s 1985 conviction for propensity purposes.
As to the 2006 incident, the court reasoned, “I think that it makes it unreasonable to not let the jury get a clearer picture of [defendant and Johnson’s] relationship, their knowledge of each other’s past and any interest or motive that... Johnson may have in deciding to get [defendant] out. So that’s my ruling.” The court noted that the 2006 incident would also be admissible under section 1101, subdivision (b), for bias and motive: “The record is clear, but it’s admissible on two separate grounds at least.” As to the admissibility of the vaguely alleged additional act of domestic violence committed by defendant against Johnson, the court took Johnson’s testimony. Johnson testified that in October 2006 she reported to the police an incident of domestic violence against her by defendant. She testified that she did not recall telling a district attorney’s office investigator that there had been another occasion on which defendant “got physical” with her. She testified that on no other occasion than that in October 2006 had defendant ever been physically violent with her.
At trial, Johnson testified that on October 31, 2006, after arguing with defendant on the phone, defendant came over to her house. She answered the door. He pushed her outside, dragged her across the street, and slapped her repeatedly until she fell to the ground. Defendant then grabbed her by the hair, jumped on top of her, and banged her head against the concrete. She called the police; they took a report. Powell testified that on October 31, 2006, she was awakened by her mother. Johnson was scared, upset, had bruising on her face and arms, and a busted lip. Johnson told Powell defendant had taken her outside and beat her. Powell called the police; the police arrived thereafter. On cross-examination of Robertson, she acknowledged that defendant had been found guilty for assaulting her with a firearm in December 1994. The parties stipulated that defendant had been convicted on June 21, 1995, of a felony charge of corporal injury to a cohabitant, felony kidnapping, assault with a firearm, and false imprisonment by force or menace. “As to all counts, the date of offense was December 26, 1994, the victim was Rowena Bergos Campo [sic].”
2. Due Process
Defendant maintains that the court’s admission of evidence of his prior acts of domestic violence pursuant to section 1109 violated his federal due process rights by permitting the jury to find him guilty of the current offenses based largely or solely on his prior misconduct. We disagree.
“Under... section 1109, evidence of a prior act of domestic violence is admissible to prove the defendant had a propensity to commit domestic violence when the defendant is charged with an offense involving domestic violence.” (People v. Rucker (2005) 126 Cal.App.4th 1107, 1114.) A number of California appellate courts, including this one, have rejected the precise challenge posed by defendant here. (People v. Hoover (2000) 77 Cal.App.4th 1020, 1028; People v. Cabrera (2007) 152 Cal.App.4th 695, 704; People v. Escobar (2000) 82 Cal.App.4th 1085, 1096; People v. Brown (2000) 77 Cal.App.4th 1324, 1334 (Brown); People v. Johnson (2000) 77 Cal.App.4th 410, 420; People v. Jennings (2000) 81 Cal.App.4th 1301, 1312.) The reasoning of our decision in Hoover was based on the California Supreme Court’s decision in People v. Falsetta (1999) 21 Cal.4th 903 (Falsetta). (Hoover, at p. 1029.) Section 1108 permits evidence of prior sex offenses to be admitted, for propensity purposes, when a defendant is charged with a sexual offense. (Brown, at p. 1332.) In Falsetta,the Court concluded that a trial court’s discretion to exclude evidence pursuant to section 352 saved section 1108 from a due process challenge. (Falsetta,at p. 917.) Like section 1108, section 1109 explicitly retains a trial court’s discretion to exclude evidence of prior acts of domestic violence pursuant to section 352. (§ 1109, subd. (a)(2).) “Section 1109 was modeled on section 1108.” (Hoover, at p. 1025.) We reaffirm our holding in Hoover, and conclude that section 352 adequately protects a defendant’s due process rights when the prosecution seeks to introduce propensity evidence pursuant to section 1109. (Hoover,at p. 1029.)
3. Section 352 Analysis
Admissibility of propensity evidence is subject to the court’s discretion to exclude evidence that is more prejudicial than probative. (§ 352; Brown, supra, 77 Cal.App.4th at p. 1337 [discussing sections 352 and 1109].) In exercising its discretion to admit or exclude evidence, the court must balance the probative value of the evidence “against four factors: (1) the inflammatory nature of the uncharged conduct; (2) the possibility of confusion of [the] issues; (3) remoteness in time of the uncharged offenses; and (4) the amount of time involved in introducing and refuting the evidence of uncharged offenses.” (People v. Branch (2001) 91 Cal.App.4th 274, 282; see also People v. Harris (1998) 60 Cal.App.4th 727, 737-740.) “‘“The ‘prejudice’ referred to in... section 352 applies to evidence which uniquely tends to evoke an emotional bias against defendant as an individual and which has very little effect on the issues. In applying section 352, ‘prejudicial’ is not synonymous with ‘damaging.’”’” (People v. Rucker, supra, 126 Cal.App.4th at p. 1119.) We will not disturb a trial court’s exercise of discretion under section 352 “‘“except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.” [Citations.]’ [Citation.]” (Brown, supra, 77 Cal.App.4th at p. 1337.)
Here, we discern no abuse of discretion in the trial’s court’s admission of defendant’s prior acts of domestic violence because they were more probative than prejudicial. Both prior incidents shared a common intent with the current offense because they tended to show defendant had a propensity to use physical violence in an attempt to control women. As noted in People v. Jennings, supra, 81 Cal.App.4th at page 1313: “Although all criminal trials are credibility contests to some extent, this is unusually—even inevitably—so in domestic... cases, specifically with respect to the issue of victim credibility.” Thus, the prior incidents were strongly probative in helping the jury determine the credibility of the various witnesses with respect to their testimony and prior statements, particularly as they often conflicted.
Moreover, none of the incidents described in the testimony or the stipulation regarding defendant’s prior acts were cause for concern under Branch’s “four factors.” No specific details of the 1994 offenses were adduced at all; rather, the parties merely stipulated that defendant had been convicted of those offenses. Likewise, the details of the 2006 incident could not be construed as more inflammatory than the offenses for which defendant stood trial. Although the 2006 offense was violent, it was comparable to some of the testimony adduced in the current trial regarding the circumstances of the instant incident, e.g., defendant’s biting of Johnson’s nose, punching Phillips in the face, kicking Phillips’s body while she was on the ground, beating Phillips with the lamp, throwing the lamp at Phillips, and attempting to push the knife towards her body. Indeed, the testimony regarding the current incident involved multiple violent acts against multiple victims.
The presentation of the prior acts evidence did not devolve into a mini trial on those offenses. The 1994 offenses were supported by convictions. Although the 2006 incident did not have a corresponding conviction, the police were called and a report was taken. The presentation of the 1994 offenses took no further time than that required to read the stipulation, less than one full page of transcript. The evidence presented on the 2006 offense took up less than eight full pages of reporter’s transcript, most of which was due to the defense’s own cross-examination on the issue. Thus, the evidence was not unduly time consuming or cause for confusion of the issues.
The prior acts were not remote. The October 31, 2006, offense was committed less than six months earlier than the current offense. Although the 1994 offenses were chronologically remote by section 1109’s own standard, we agree with the trial court’s determination that the interest of justice was served by their admission. As the court noted, defendant spent nearly nine of the intervening 12 and one-half years between the two incidents incarcerated. This left only three and one-half years in which defendant could have had the opportunity to commit another act of domestic violence. And, in fact, defendant had committed two such offenses in that relatively short period of time.
Moreover, the evidence against defendant was strong even without the prior acts evidence. Although Johnson testified that she was not sure whether defendant had actually bit her, she testified that she incurred an injury to her nose by contact with defendant’s teeth. Defendant was attempting to prevent her from leaving, standing in front of her while she sat on the bed. She testified that she told an investigating officer that defendant had bit her nose. Deputy Burns testified that Johnson told him that defendant “bit down onto her nose.” Johnson testified that was either not the truth or that she does not remember whether it was the truth. Johnson had ample motive to recant her original version of events. Swanson heard Johnson call for her to phone the police. Phillips testified she awoke to Johnson screaming and requesting that Swanson call the police. The jury’s verdict on count 1 makes it obvious they believed Johnson’s prior statements regarding the incident. Similarly, the circumstances surrounding the incident lent more than sufficient credence to that version of events when contrasted with the other possibility that defendant accidently contacted his teeth with Johnson’s nose.
Furthermore, the jury was given appropriate limiting instructions on the use of this evidence to prevent any potential prejudice. We presume the jury followed these instructions. (People v. Gray (2005) 37 Cal.4th 168, 217.) Thus, there is simply no likelihood that the jury convicted defendant largely or solely to punish defendant for his past offenses rather than purely for the act which was the subject of the instant trial.
Finally, we note that the court took ample time to investigate the propriety of admitting the prior acts evidence. The court continued the matter twice to permit it and counsel to conduct further research on the matter. At least three hearings on the issue were held. At least two of those hearings were lengthy; the court indulgently permitted counsel for both sides ample opportunity to argue the matter. At the last hearing on the issue, the court took the testimony of the purported victim. The court tacitly excluded evidence of the purported third instance of prior domestic violence. We discern no abuse of discretion in the trial court’s decision.
4. CALCRIM No. 852
Defendant further contends that the trial court’s instruction of the jury with CALCRIM No. 852 violated his due process rights. He argues that CALCRIM No. 852 effectively lowers the People’s burden of proof by permitting the jury to infer guilt on the charged offense if it found by a preponderance of the evidence that defendant committed the prior uncharged acts. We disagree.
The jury was instructed with a modified version of CALCRIM No. 852 reading as follows: “The People presented evidence that the defendant committed domestic violence that was not charged in this case. [¶] Domestic violence means abuse committed against an adult who is a cohabitant. [¶] Abuse means intentionally or recklessly causing or attempting to cause bodily injury, or placing another person in reasonable fear of imminent serious bodily injury to himself or herself or to someone else. [¶] You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the uncharged domestic violence. Proof by a preponderance of the evidence is a different burden of proof from proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true. [¶] If the People have not met this burden of proof, you must disregard this evidence entirely. [¶] If you decide that the defendant committed the uncharged domestic violence, you may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit domestic violence and, based on that decision, also conclude that the defendant was likely to commit and did commit Corporal Injury to Cohabitant, as charged here. If you conclude that the defendant committed the uncharged domestic violence, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of Corporal Injury to Cohabitant. The People must still prove each charge and allegation of every charge beyond a reasonable doubt. [¶] Do not consider this evidence for any other purpose.”
As with defendant’s first issue, a number of California appellate courts have upheld the propriety of similar instructions against comparable challenges. (People v. Van Winkle (1999) 75 Cal.App.4th 133, 147-148; Brown, supra, 77 Cal.App.4th at pp. 1334-1335; People v. Regalado (2000) 78 Cal.App.4th 1056, 1062-1063; People v. O’Neal (2000) 78 Cal.App.4th 1065, 1078-1079; People v. Pescador (2004) 119 Cal.App.4th 252, 260 [CALJIC No. 2.50.02 neither violates defendant’s due process rights nor undermines the presumption of innocence and the requirement of proof beyond a reasonable doubt]; People v. Johnson (2008) 164 Cal.App.4th 731, 739-740 [CALCRIM No. 852 does not violate due process or undermine burden of proof]; People v. Reyes (2008) 160 Cal.App.4th 246, 253 (Reyes) [same].)
In Reyes, the court noted that Falsetta has been used to uphold the constitutionality of section 1109, and in turn the decision in People v. Reilford (2003) 29 Cal.4th 1007 (jury instruction regarding § 1108 evidence does not offend due process) has been used to uphold the constitutionality of the then corresponding jury instruction for section 1109, CALJIC No. 2.50.02. (Reyes, supra, 160 Cal.App.4th at p. 251.) The court then determined that “there is no material difference between the language found constitutional in CALJIC No. 2.50.02 and that in [CALCRIM] No. 852. In fact, CALCRIM No. 852 is expressed in clearer language and makes more certain the manner in which such evidence may or may not be used by the jury. The reasoning of the cases analyzing CALJIC No. 2.50.02 is equally applicable to the validity and propriety of CALCRIM No. 852.” (Reyes, supra, 160 Cal.App.4th at pp. 251-252, fns. omitted.)
“As with CALJIC No. 2.50.02, CALCRIM No. 852 explains that if the jury finds the defendant committed the uncharged acts, it may but is not required to conclude the defendant was disposed to or inclined to commit domestic violence and may also conclude that the defendant was likely to commit and did commit the crimes charged in the case. Also as with CALJIC No. 2.50.02, CALCRIM No. 852 clarifies that even if the jury concludes the defendant committed the uncharged acts, that evidence is only one factor to consider, along with all the other evidence and specifies that such evidence alone is insufficient to prove the defendant’s guilt on the charged offenses. CALCRIM No. 852 then goes on to state that the People must still prove each element of every charge beyond a reasonable doubt. In this, CALCRIM No. 852 goes further than CALJIC No. 2.50.02 with a clarification which inures to the defendant’s benefit.” (Reyes, supra, 160 Cal.App.4th at p. 252.) Hence, instruction with CALCRIM No. 852 does not violate due process principles. (Reyes, at p. 253.) We agree with Reyes.
Defendant cites People v. Orellano (2000) 79 Cal.App.4th 179, 186 (Orellano) and People v. Vichroy (1999) 76 Cal.App.4th 92, 99-100 (Vichroy) to support his contention that the instruction in this case was constitutionally invalid. Vichroy concerned the validity of CALJIC No. 2.50.01, the jury instruction pertaining to a case which involved the presentation of evidence of prior uncharged sex offenses pursuant to section 1108. (Vichroy, at p. 96.) Vichroy held that the instruction unconstitutionally permitted the jury to find the defendant guilty of the current charges based solely on its findings that defendant had committed prior sexual offenses. (Id. at p. 101.) Even when considered in context with the instructions as a whole, which otherwise informed the jury that it could not find the defendant guilty based solely on its findings regarding the prior offenses, the court held that it could not assume the jury followed the constitutionally correct conflicting instruction. (Id. at pp. 99-101.) Hence, CALJIC No. 2.50.01, as given, was unconstitutionally infirm requiring reversal. (Id. at p. 101.)
Orellano likewise concerned the validity of CALJIC No. 2.50.01. That court recognized that several other decisions subsequent to Vichroy had found the instruction constitutionally valid. (Orellano, supra, 79 Cal.App.4th at p. 181.) Nevertheless, the court agreed with Vichroy, that the instruction was constitutionally infirm: “If the jury followed these instructions literally and arrived at a guilty verdict in that manner, appellant was denied his due process right to require proof beyond a reasonable doubt of every fact necessary to constitute the charged crimes. [Citations.] A ‘constitutional infirmity arises’ because taken literally these instructions authorized a conviction of the current charges based ‘solely’ upon a finding that appellant committed the prior crimes. [Citation.]” (Orellano, at pp. 184-185 & 181, 186.)
As we noted in People v. Waples (2000) 79 Cal.App.4th 1389, 1397, footnote 8, we disagreed with both Orellano and Vichroy because we believed that, based on the jury instructions considered as a whole, the jury could only have construed its duty appropriately in finding defendant guilty of the instant offenses beyond a reasonable doubt. (Waples, at p. 1398.) We stand by that position today. The court in People v. Van Winkle, supra, 75 Cal.App.4th at pages 140, 148-149, reached the same conclusion. Moreover, as Orellano itself acknowledged, it concerned a version of CALJIC No. 2.50.01 which had since been revised in 1999. (Orellano, supra, 79 Cal.App.4th at pp. 181, 183 & 184.) That revision added language informing the jury that “‘if you find by a preponderance of the evidence that the defendant committed prior sexual offenses, that is not sufficient by itself to prove beyond a reasonable doubt that he committed the charged crimes. The weight and significance of the evidence, if any, are for you to decide.’” (Id. at p. 183.) A number of courts, including Orellano itself, have concluded that, as revised, the instruction rectified any constitutional invalidity present in its former version. (Id. at pp. 183, 185-186; Falsetta, supra, 21 Cal.4th at pp. 923-924; Brown, supra, 77 Cal.App.4th at pp. 1334-1336 [upholding similar language revision to CALJIC No. 2.50.02 relating to prior acts evidence of domestic violence pursuant to section 1109]) As noted above, “CALCRIM No. 852 is expressed in clearer language and makes more certain the manner in which such evidence may or may not be used by the jury.” (Reyes, supra, at p. 252.)
Likewise, here there is no reasonable likelihood that the jury misunderstood the instructions as a whole such that it could believe that it could convict defendant of the charged offense simply by finding the prior acts true by a preponderance of the evidence. (Brown, supra, 77 Cal.App.4th at pp. 1334-1335.) The jury was instructed that “If you conclude that the defendant committed the uncharged domestic violence, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of Corporal Injury to Cohabitant. The People must still prove each charge and allegation beyond a reasonable doubt.” The reasonable doubt standard was reiterated in both the instructions and arguments. Although the People argued the relevance of the prior acts to the verdict, they in no way suggested “that guilt might be based on proof by a preponderance of the evidence.” (Id. at p. 1335.) The instruction comports with due process principles.
B. Romero Motion
Defendant contends the court erred in failing to exercise its discretion to strike three of defendant’s four prior strike convictions. We disagree.
“[A] court’s failure to dismiss or strike a prior conviction allegation is subject to review under the deferential abuse of discretion standard.” (People v. Carmony (2004) 33 Cal.4th 367, 374.) Under this standard, the defendant bears the burden of establishing an abuse of discretion. (Id. at p. 376.) In the absence of such a showing, the trial court is presumed to have acted correctly. (Id. at pp. 376-377.) The appellate court may not substitute its judgment for that of the trial court when determining whether the court’s decision to strike the prior was proper. (Id. at p. 377.) “‘[I]n 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 scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.’ [Citation.]” (Ibid.) “‘[W]here 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 court’s ruling, even if we might have ruled differently in the first instance’ [citation].” (Id. at p. 378.)
Defendant argues that the court’s refusal to strike three of his prior strike convictions was punitive in nature, punishing defendant for taking his case to trial after declining to take a plea agreement. Prior to trial the People offered defendant an agreement whereby he would plead guilty to one count and serve eight years with “good time” credits calculated at 80 percent. Defendant rejected that offer. At sentencing the court noted, “I did my very best to try to resolve this case at the very beginning, not to have a trial on it.” Contrary to defendant’s conjecture, nothing in the statement reflects that the court’s basis for denying defendant’s Romero motion was his rejection of the plea. Rather, the court’s statement simply notes that defendant could have avoided the much harsher sentence he was facing now had he taken the plea.
Defendant contends there was a strong implication that the eight-year sentence proffered prior to trial was a fair disposition which should have been considered after trial by the striking of three of his prior strike convictions. However, after trial, the court now had more detailed information regarding the substance of the crimes defendant was convicted of and a comprehensive exposition of defendant’s criminal history. This is the basis upon which the trial court denied defendant’s Romero motion. The court noted that defendant was convicted in this case of domestic violence, an inherently violent crime. The court observed that defendant had already obtained the benefit of having a prior strike stricken when he was convicted in 1995. It was noted that defendant was convicted of more than one offense in the current case. The court noted that defendant had a history of committing domestic violence offenses. Hence, the court tacitly concluded that defendant was not outside the spirit of the “Three Strikes” scheme.
Finally, defendant maintains that the trial court misconstrued its discretion to strike his prior strike convictions. The court stated that it believed it would be an abuse of discretion to grant defendant’s motion. Likewise the court noted, “I do believe I indicated that I didn’t think I had much of a choice, and I still think I have no reasonable alternative but at this time to sentence [defendant].” Contrary to defendant’s contention, the court’s statements accurately reflect its limited discretion to strike prior strike convictions, particularly when measured against the severity of defendant’s current convictions and criminal history.
Defendant’s reliance on People v. Bishop (1997) 56 Cal.App.4th 1245 is misplaced. Bishop predates People v. Williams (1998) 17 Cal.4th 148, and consequently did not apply the appropriate standard: whether the defendant should be deemed to fall outside the Three Strike scheme’s spirit. The court here implicitly determined that defendant was precisely the type of person who fell within the purview of the Three Strikes law. Also, Bishop relied heavily on the state Supreme Court’s decision in People v. Superior Court (Alvarez)(1997) 14 Cal.4th 968, for the scope of the trial court’s right to exercise its discretion. Alvarez addressed a different issue with a different scope of discretion: the trial court’s unqualified discretion to determine whether to reduce a wobbler to a misdemeanor for purposes of the Three Strikes law. It contrasted that discretion with the qualified discretion at issue here under Penal Code section 1385, subdivision (a), which, it acknowledged, was an example of a statute that “contain[ed] express qualifications delineating, and thereby restricting, the particular exercise of discretion.” (Alvarez, at p. 977.) The court’s denial of defendant’s Romero motion was in proper acknowledgment and exercise of its discretion.
C. Cruel and/or Unusual Punishment
Defendant contends his 25-years-to-life sentence is disproportionate to his current offense and personal history and, as such, constitutes cruel and/or unusual punishment under the federal and state Constitutions. (U.S. Const., 8th Amend.; Cal. Const., art. I, § 17.) We disagree.
“‘“The cruel and unusual punishments clause of the Eighth Amendment to the United States Constitution prohibits the imposition of a penalty that is disproportionate to the defendant’s ‘personal responsibility and moral guilt.’ [Citations.] Article I, section 17 of the California Constitution separately and independently lays down the same prohibition.”’ [Citations.]” (People v. Lucero (2000) 23 Cal.4th 692, 739 (Lucero).) “If the penalty imposed is ‘grossly disproportionate to the defendant’s individual culpability’ [citation], so that the punishment ‘“‘shocks the conscience and offends fundamental notions of human dignity’”’ [citation], [we] must invalidate the sentence as unconstitutional.” (Id. at pp. 739-740.) “A defendant has a considerable burden to overcome when he challenges a penalty as cruel or unusual.” (People v. Bestelmeyer (1985) 166 Cal.App.3d 520, 529.)
When reviewing a claim of disproportionality or cruel or unusual punishment under the state Constitution, we examine the nature of the offense and offender, compare the punishment with the penalty for more serious crimes in the same jurisdiction, and measure the punishment to the penalty for the same offense in different jurisdictions. (In re Lynch (1972) 8 Cal.3d 410, 425-427 (Lynch); see People v. Dennis (1998) 17 Cal.4th 468, 511.) Regarding the nature of the offense and the offender, we evaluate the totality of the circumstances surrounding the commission of the current offenses, including the defendant’s motive, the manner of commission of the crimes, the extent of the defendant’s involvement, the consequences of his acts, and his individual culpability, including factors such as the defendant’s age, prior criminality, personal characteristics, and state of mind. (Lucero, supra, 23 Cal.4th at p. 739; People v. Martinez (1999) 71 Cal.App.4th 1502, 1510.)
Here, both offenses for which defendant was convicted were violent. Both caused injuries to the victims. It is significant that defendant’s 25-years-to-life sentence was largely based on his recidivism. Defendant received the 25-years-to-life term for convictions under the Three Strikes law based on his prior strike convictions. (Pen. Code, § 667, subds. (b)-(i).) “[A] defendant’s history of recidivism, which is part of the nature of the offense and the offender, justifies harsh punishment.” (People v. Meeks (2004) 123 Cal.App.4th 695, 709.) “Recidivism in the commission of multiple felonies poses a manifest danger to society justifying the imposition of longer sentences for subsequent offenses.” (People v. Kinsey (1995) 40 Cal.App.4th 1621, 1630.)
Here, defendant’s prior offenses were similarly violent. Defendant had garnered a conviction in 1985 for assault with a firearm and convictions in 1995 for assault with a firearm, kidnapping, false imprisonment, and domestic violence. Thus, his 25-years-to-life sentence is not disproportionate to his personal responsibility. Nor does the sentence shock the conscience or offend fundamental notions of human dignity. (Lucero, supra, 23 Cal.4th at p. 740.)
The second prong of the Lynch analysis “involves a comparison of the ‘challenged punishment with the punishment prescribed for more serious crimes in the same jurisdiction.’ [Citation.]” (People v. Romero (2002) 99 Cal.App.4th 1418, 1433.) Defendant’s comparison of the terms of imprisonment for first and second degree murder convictions and manslaughter with his own period of incarceration is inapt as the former periods of incarceration do not reflect hypothetical recidivist defendants. Again, as discussed above, defendant had a criminal history which legitimized the degree of imprisonment imposed in the instant case. Defendant has not met his burden of proof on the second prong. (Ibid [second prong inapposite to Three Strikes sentencing].)
The third prong of Lynch calls for comparison of the California punishment with punishment for the same crimes in other states. (People v. Romero, supra, 99 Cal.App.4th at p. 1433.) Defendant has not met his burden of proof on this prong either. (Ibid [third prong not satisfied merely because California’s sentencing scheme is harsher than others].) Defendant has failed to provide this court with comparative, recidivist sentences from other states. Regardless, defendant’s sentence is not disproportionate to his culpability. (See Lockyer v. Andrade (2003) 538 U.S. 63, 73-74 [two consecutive terms of 25 years to life for third strike conviction involving two thefts of videotapes not cruel and unusual punishment]; Ewing v. California (2003) 538 U.S. 11, 21 [25-years-to-life sentence for theft of three golf clubs for habitual criminal not violative of the Eighth Amendment].) Contrary to defendant’s contention, his case is far less sympathetic than the latter two cited cases.
DISPOSITION
The judgment is affirmed.
We concur: RICHLI, Acting P. J., KING, J.
Robertson later testified on behalf of the defense. During cross-examination, Robertson acknowledged that defendant had been found guilty of assaulting her with a firearm in December 1994, though she denied that he actually committed the offense.