Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. SC066733
Banke, J.
A jury convicted defendant Tyler John Redick of four counts of robbery (Pen. Code, §§ 211, 212.5, subd. (c)), criminal possession of a firearm while wearing a mask (§ 12040, subd. (a)), attempted carjacking (§§ 664, 215, subd. (a)), grand theft (§ 487, subd. (d)(2)), misdemeanor assault (§ 240) and misdemeanor resistance of a peace officer (§ 148, subd. (a)(1)). With respect to each robbery count, the jury also found true enhancement allegations that he personally used a firearm during commission of the offense (§§ 1203.06, subd. (a)(1), 12022.53, subd. (b)). The trial court sentenced defendant to an aggregate term of 18 years two months in prison.
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant contends the court prejudicially erred by: (1) admitting into evidence plans for a bank robbery found in his backpack, and notes suggesting to potential witnesses what to say to help him avoid conviction found in his jail cell; and (2) failing to instruct the jury sua sponte on how to evaluate evidence of consciousness of guilt. He also contends the enhancements for personal use of a firearm pursuant to section 12022.53, subdivision (b), constitute cruel and unusual punishment. We find these contentions to be without merit and affirm the judgment.
Factual and procedural background
On May 16, 2008, four high school students, Derek Honig, Randy Rios, Luis Martinez, and Joseph Murtagh, were seated in a car in a parking lot. Two male adults wearing white T-shirts and black bandanas approached. One of them went to the driver’s side, and the other, to the passenger side. The male who went to the driver’s side, who the students later identified as defendant, displayed a firearm. He warned the students brandishing the gun was not “a joke” and demanded their money.
Honig was sitting in the driver’s seat. When he handed defendant $2, defendant hit him in the eye with the butt of the gun. Defendant then turned his attention to Martinez, who was seated behind Honig. Martinez handed over his wallet, and the gunman punched or pushed him. Murtagh was sitting in the right front passenger seat. He gave approximately $180 to the other masked man standing on his side of the car. Rios also gave $5 to this man.
Suddenly, defendant’s mask fell off. He seemed shocked, and asked his partner: “ ‘What should we do with them? My mask fell. They could see our face. What should we do?’ ” He paused for about five seconds and then said: “ ‘Let’s just go.’ ” Rios was frightened when defendant said, “ ‘They seen my face.’ ” Then defendant and the other man ran away. They jumped into a white Buick and drove off. Honig followed the Buick, and Rios called 911.
The four students gave up following the Buick, met some police officers in a parking lot, and then went to the police station. There, they informed Officer McLaughlin the white Buick was an older model with distinctive rectangular rear lights. Another officer stated he had recently stopped a vehicle matching that description, and recalled the driver was named Jake Guinn.
Officer McLaughlin went back to the area where the robberies occurred and located a man who had a video surveillance system. The video did not show the robbery, but did show two individuals getting into a white Buick. Officer McLaughlin was able to identify Jake Guinn on the video. He could not determine whether the other person was defendant, but he saw some similarity and he knew Guinn and defendant were friends.
On May 16, 2008, Officer McLaughlin, showed each of the students a photo lineup that included a picture of defendant. All but Murtagh identified defendant as one of the robbers.
On July 22, 2008, in a live lineup, Honig again identified defendant.
On May 17, 2008, between 2:00 and 3:00 a.m., Officers McLaughlin, Morrison and others went to defendant’s father’s house. Defendant’s father, Fred Redick, told them defendant was living with his girlfriend Jessica. While the officers were still there, Fred Redick discovered his.357-Magnum was missing from his nightstand. He estimated the weapon was worth between $400 and $500. He agreed to take the officers to Jessica’s residence in Foster City.
Defendant was on probation at the time, and subject to a search condition.
When the officers arrived at Jessica’s house, Jessica’s mother and other family members told them defendant shared a room with Jessica, and they gave permission to search Jessica’s room. As the search began, Thomas Bauer drove a white minivan up to the front yard of Jessica’s house. Defendant, Jake Guinn, and Jessica were passengers. Bauer testified defendant became agitated when he saw police officers in front, and someone told Bauer to keep driving, so he did. Officer Greene, who was standing on the front lawn saw the van drive up and speed away. Some of the officers left Jessica’s house to pursue the van. They were unsuccessful, and returned to resume the search of the bedroom.
The officers found a backpack on the bed. It contained a black and white bandana, a.357-Magnum, and documents bearing defendant’s name and photograph. The backpack also contained three notebooks, with notes in defendant’s handwriting setting forth several variations of a plan to rob a bank. Fred Redick testified the gun found in defendant’s backpack was “apparently” the one missing from his nightstand. Honig and Rios also testified the gun looked exactly like the one defendant used in the robberies.
The court admitted a redacted version of these plans, which were in list form, as follows: “Mask, gloves, & gat [¶] Get in car empty purse remove or break battery [¶] Drive to bank on the way tell her to withdraw $50,000 in 100’s tell her she’s being watched on the inside.” Another list stated: “Job-Pays phone, food, fun.” “Park car 2: [¶] Steal car [¶] Rob Bank [¶] Escape Plan A [¶] Escape Plan B.” “Gun & Backpack License Plate [¶] Steel [sic] car [¶] Get bank manager in parking lot. Walk her to door have her open and lock door. Tell her ‘no die no tracer money’ I need $50,000 don’t set off any alarms or I’ll be forced to kill you!” Yet another plan was: “Borrow ‘car 1’ [¶] Switch plates [¶] Park in Bank lot the night b4 keys ready [¶] Take cell phone [¶] Drive to bank park near ‘car 1’ [¶] Details* Hand him note [¶] Call threat on his phone [¶] Bank robbed [¶] Gives me back pack [¶] Get in ‘car 1’ [¶] Drive to safe spot [¶] Switch to original plates [¶] Throw stolen plates with keys in gutter hole [¶] Drive to Jessica’s. [¶] *Walk in, get in line, go to lady teller, hand her note don’t say anything, put money in bag.” The final set of notes read: “Borrow Rickey’s Vest [¶] License plate for Mazda or Kia, (Get it far away) [¶] Report threat same time steal Black/silver car [¶] Drive to Bank leave door open/car running Open door Hit counter, hit someone, take one teller and have her fill the bag [¶] Over the counter [¶] In the car.” We shall hereafter refer to these plans as the “bank robbery plans.”
On May 17, 2008, at around 9:00 or 10:00 a.m., defendant met with Jessica, and told her he was in trouble with the police. Defendant said others were also involved. Her testimony was equivocal as to whether defendant said he had used a gun himself. She testified he “mentioned a gun, ” and also told her he did not “hurt or shoot anyone.” She testified she understood him to mean “he used [a gun] to scare someone, ” but also denied he explicitly said “he had one on him.” When Jessica asked him why the police were at her house the night before, defendant told her the gun might be at her house. He added he might not be seeing her for a while.
In the meantime, the police were still looking for defendant and had information he might be in the area with Jessica. As defendant was talking to Jessica, Officer Sealy approached on foot. When defendant saw him he broke into a run. Defendant ignored Officer Sealey’s orders to stop as the foot chase continued. Officer Sealey temporarily lost sight of defendant and then saw him reaching into the driver’s side of a white Honda Accord. The driver was blowing his horn. When defendant caught sight of Officer Sealy he began running again.
The driver of the Accord, Jeff Frediani, testified he saw defendant jogging toward him and thought something was wrong. In response to defendant’s signal he rolled down his window, and defendant opened the door. Defendant shouted: “ ‘Get the fuck out.’ ” He grabbed Frediani’s hands and tried to pull him out. When Frediani successfully resisted, defendant ran to another car, and tried to enter it but it was locked. He then ran off with a police officer in pursuit on foot. Other officers arrived on the scene and arrested defendant.
While defendant was in jail, a routine search of his cell produced notes in his handwriting in which he spoke of getting the charges dropped by getting his friends to persuade potential witnesses to say “it wasn’t [him] by any means necessary!” The notes also urged members of Jessica’s family to deny he lived in Jessica’s room where the police found the backpack.
These notes stated: “(1) Contact Wang. (Have him meet me at County) [¶] (2) Have him contact Max! [¶] (3) White boy, white car [Friday?], Jacked. [¶] (4) Make sure they drop the charges.” Another note stated: “Call Jessica... [¶] Tell her Tyler is in RWC County Jail. [¶].... In order to save Tyler you have to call ‘Wang Chung’ and ‘Chris’ get them together and go talk with Max. Tell Max to call Jeremy (he drive a white car and bought trees on Friday) Everyone MUST convince him and the others to say it wasn’t me by any means necessary! They’ll have no choice but to drop half the charges.” “Its crucial that Jessica’s family make sure to know that if they say I DON’T LIVE there at ALL! I could beat the case but everyone has to be on board.” “Tell her ‘I love her and miss her deeply. Stay strong, this will all be over soon and he promises once he gets out nothing like this for me Baby J.’ [¶]... Tell her ‘I love you Jessica, I know its hard, I miss you so much and, I cant wait to be back in your arms and make my baby J. happy and smiling again.” We shall hereafter refer to these notes as “the jail cell notes.”
In court, all four students identified defendant as the person whose mask fell off. Rios and Martinez stated they were “100 percent” certain, or had “no doubt” defendant was the one with the gun. The other male who robbed them was shorter, and Latino or Filipino with a darker complexion than defendant.
Defendant has a light complexion and does not appear to be Latino or Filipino.
Analysis
I. Admission of the Bank Robbery Plans and Jail Cell
Over defendant’s objection, the court admitted the plans for a bank robbery and the jail cell notes. Defendant contends the plans and notes were irrelevant, and even if they had some probative value, the court should have excluded them under Evidence Code section 352. He further claims these asserted evidentiary errors violated his federal due process right to a fair trial and were prejudicial.
The Bank Robbery Plans
The bank robbery plans found in defendant’s backpack were, of course, inadmissible to show defendant was a person of bad character who spent his spare time planning bank robberies and that he acted in conformity therewith by committing the charged offenses. (See Evid. Code, § 1101, subd. (a) [evidence of bad character is inadmissible to prove conduct on a specific occasion].) However, subdivision (b) of Evidence Code section 1101 provides that evidence of uncharged misconduct is admissible when relevant to establish some fact other than character or disposition, such as identity, intent or a common plan or scheme. The trial court concluded that despite their focus on a bank as a target, the robbery plans were admissible on the issue of intent and as evidence of “planning.” (See People v. Ewoldt (1994) 7 Cal.4th 380, 402 (Ewoldt).)
We need not belabor defendant’s argument that the bank robbery plans should not have been admitted to show intent, because they were unquestionably admissible to show the existence of a plan. “ ‘The presence of a design or plan to do or not to do a given act has probative value to show that the act was in fact done or not done.’ [Citation.] For example, a letter written by the defendant stating he planned to commit a certain offense would be relevant evidence in a subsequent prosecution of the defendant for committing that offense.” (Ewoldt, supra, 7 Cal.4th at p. 393.) “Unlike evidence of uncharged acts used to prove identity, the plan need not be unusual or distinctive; it need only exist to support the inference that the defendant employed that plan in committing the charged offense.” (Id. at p. 403.) Therefore, “evidence that a search of the residence of a person suspected of rape produced a written plan to invite the victim to his residence and, once alone, to force her to engage in sexual intercourse would be highly relevant even if the plan lacked originality.” (Ibid.)
It is true defendant was charged with the robbery of high school students sitting in their car, whereas the written robbery plans specifically referred to a bank or bank manager as the target. Nonetheless, specific methods and details set forth in these plans were sufficiently similar to facts of the charged offenses to support an inference these “common features” are explained by the existence of a plan, despite the choice of different and more vulnerable targets. (Ewoldt, supra, 7 Cal.4th at pp. 402-403.) As in the charged offenses, the plans referred to using a mask to conceal his identity, and repeatedly referred to using a gun or “gat, ” and backpack, which is where the gun used in the charged offense was ultimately found. Also as in the charged offenses, the plans referred to using verbal threats, or hitting the victim to force compliance with a demand for money, and to escaping by car and driving to Jessica’s house afterwards. No doubt these plans were not particularly original or unusual, but they nonetheless had some probative value to show defendant acted in accordance with his plan. (Ibid.)
The parties stipulated that “gat” refers to a particular kind of gun.
Nor did the court abuse its discretion by refusing to exclude the bank robbery plans in their entirety as more prejudicial than probative under Evidence Code section 352. The probative value of these plans was not particularly strong in light of the focus on a bank as the target. Nor was admission of this evidence essential to the prosecutor’s case in light of other overwhelming evidence of defendant’s guilt. There was also some risk the cold deliberation with which defendant planned threatening to kill people, hit them, and rob them at gunpoint, would provoke emotional bias against defendant. The question, however, is not whether we might have reached a different conclusion regarding the relative weight of the probative value of this evidence against the potential for prejudice, but whether the trial court, in its weighing of these factors, abused its discretion. We may find an abuse of discretion only if the court failed to engage in any weighing of the relevant factors under Evidence Code section 352, or its ruling exceeded the bounds of reason. (People v. Stewart (1985) 171 Cal.App.3d 59, 65.)
Our review of the record satisfies us the trial court considered the relevant factors under Evidence Code section 352, and its conclusion the probative value of this evidence exceeded the potential prejudice was within the bounds of reason. The court carefully weighed the relative probative value of the robbery plans against the potential prejudice of admitting them, and did not admit them in their entirety. The court considered deleting all references to a bank, but defense counsel rejected that option because he was concerned it would deprive him of a factual argument that the jury should not infer defendant acted in accordance with these plans since the targets of the charged offenses were high school boys, not a bank. The court then carefully reviewed the plans and excluded many of the more inflammatory aspects such as to “[s]cope [a] bitch with [a] newborn” or “Grab the man with baby, ” and to threaten “any problems results [sic] in kid’s death.” The court also redacted part of the plans involving a bomb threat. The foregoing record demonstrates a reasoned exercise of discretion.
The Jail Cell
A reasonable interpretation of the jail cell notes is that defendant was attempting to persuade potential witnesses to give false testimony by (a) urging his friends to convince “others to say it wasn’t me by any means necessary” and (b) asking Jessica and her family members to all agree to say he did not live at her house-all so he “could beat the case.” Evidence of an attempt by a defendant to fabricate or suppress evidence constitutes highly relevant and admissible circumstantial evidence of consciousness of guilt. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1140-1141 [defendant’s false explanation of his injury, attempt to persuade his brother to lie, and effort to get rid of a weapon used in commission of the offense is relevant and probative to show consciousness of guilt]; see also Evid. Code, § 413 [in determining what inferences to draw inference against a party, “the trier of fact may consider... his willful suppression of evidence”]; CALCRIM No. 371.)
Defendant argues the jail cell notes were irrelevant because they were also subject to innocent explanation or interpretation not amounting to an attempt to fabricate evidence. His argument confuses the issue of evidentiary relevance and the determination of guilt. The possibility of innocent explanation for the notes does not eliminate their relevance as circumstantial evidence of consciousness of guilt. “The test of relevancy is whether the evidence tends, logically, naturally, or by reasonable inference to establish a material fact, not whether it conclusively proves it.” (People v. Yu (1983) 143 Cal.App.3d 358, 376; see CALCRIM Nos. 223, 224.)
Defendant further contends that even if the jail cell notes had some probative value as circumstantial evidence of consciousness of guilt, the trial court abused its discretion by not excluding them under Evidence Code section 352 as substantially more prejudicial than probative. The only prejudice he identifies is that the jury might draw an inference of consciousness of guilt, “even though the meaning of the notes was innocuous.” But “all evidence which tends to prove guilt is prejudicial or damaging to the defendant’s case. The stronger the evidence, the more it is ‘prejudicial.’ The ‘prejudice’ referred to in Evidence Code 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. Yu, supra, 14 Cal.4th at p. 377.) If the jury concluded the jail cell notes were not an attempt to fabricate evidence, then it would simply not draw an inference of consciousness of guilt. (Ibid.) Moreover, the content of the notes was not unduly inflammatory and not likely to generate emotional bias against defendant. Accordingly, the trial court acted within its discretion in allowing introduction of the jail cell notes.
No Due Process Violation or Prejudicial Error
Even if the trial court abused its discretion in allowing the bank robbery plans and the jail cell notes, the errors did not violate defendant’s due process right to a fair trial, nor were they were prejudicial.
“ ‘As a general matter, the ordinary rules of evidence do not impermissibly infringe on the accused’s [constitutional] right to present a defense.’ ” (People v. Cudjo (1993) 6 Cal.4th 585, 611.) It follows that “mere erroneous exercise of discretion under such ‘normal’ rules does not implicate the federal Constitution.” (Ibid.) Evidentiary error violates due process only if the evidence is so prejudicial it renders the trial fundamentally unfair or there are no permissible inferences the jury may draw. (People v. Falsetta (1999) 21 Cal.4th 903, 913; People v. Albarran (2007) 149 Cal.App.4th 214, 229.) No due process violation occurred with respect to admission of the bank robbery plans for a limited purpose, particularly given the court’s redaction of the more inflammatory portions of the plans. Similarly, no due process violation occurred with respect to the jail cell notes because the jury could reasonably draw a permissive inference of consciousness of guilt, and the content was not otherwise inflammatory or uniquely likely to evoke emotional bias against him.
Nor can defendant demonstrate prejudicial error requiring reversal under Chapman v. California (1967) 386 U.S. 18, 24 (Chapman)or People v. Watson (1956) 46 Cal.2d 818, 836 (Watson). Under either standard, any error with respect to the admission of the bank robbery plans and jail cell notes was harmless in light of other overwhelming evidence of guilt. In a pretrial lineup, all the boys except Murtagh identified defendant as one of the robbers. At trial, all four identified defendant as the one whose mask fell off, and Rios and Martinez were certain he was the gunman. Honig testified the gun found in defendant’s backpack looked “exact[ly]” like or “very identical” to the gun defendant used, and Rios agreed. The link between defendant and the gun found in the backpack was reinforced by evidence the police found the backpack in the room defendant shared with Jessica, and by Fred Redick’s testimony the gun found in the backpack was “apparently” the gun missing from his nightstand, because it was the “same model and has the same grips and color.” Defendant himself told Jessica he was in trouble with the police, mentioned a gun, and told her it “might” be at her house. Then, when defendant saw a police officer approach as he was talking with Jessica, he fled and was so desperate to get away he attempted to eject Mr. Frediani from his car and use it to escape. In light of the overwhelming evidence against defendant we conclude, under either Chapman or Watson, the result would not have been any more favorable to him if the court had excluded the jail cell notes and the bank robbery plans.
Under the Watson standard, reversal is not required unless it is reasonably probable that absent admission of the jail cell notes and bank robbery plans the result would have been more favorable to him. (Watson, supra, 46 Cal.2d at p. 836.) Under Chapman, we must reverse unless the error is harmless beyond a reasonable doubt. (Chapman, supra, 386 U.S. at p. 24.)
II. CALCRIM No. 371
Defendant argues admission of the jail cell notes triggered a sua sponte duty by the court to give a portion of CALCRIM No. 371 informing the jury if it finds defendant “tried to create false evidence or obtain false testimony, that conduct may show [he] was aware of [his] guilt.” CALCRIM No. 371 further states “it is up to [the jurors] to decide the meaning and importance” of such evidence, and that such evidence cannot, “prove guilt by itself.”
The Supreme Court in People v. Najera (2008) 43 Cal.4th 1132, 1139 (Najera), held a trial court has no sua sponte duty to give instructions like CALCRIM No. 371 because they are merely more specific applications of general instructions governing circumstantial evidence. (Najera, at p. 1138.) Although the specific instruction at issue in Najera concerned drawing an inference of guilt of a theft-related offense from possession of recently stolen property, the court’s reasoning applies equally to CALCRIM No. 371, and the Supreme Court in Najera explicitly referred to CALCRIM No. 371 as a similar type of an instruction the trial court had no sua sponte duty to give.
The court explained: “Where... an instruction simply informs the jury that a fact or cluster of facts is not, without more, substantial evidence of guilt under the ordinary legal rules set forth elsewhere in the instructions, we have not imposed a duty on trial courts to provide such an instruction sua sponte. For example, the instructions concerning consciousness of guilt (CALJIC Nos. 2.03, 2.04, 2.05 & 2.06) recite that such evidence is not sufficient by itself to prove guilt, yet we have never held that the trial court has a sua sponte duty to instruct the jury accordingly. (See Judicial Council of Cal., Crim. Jury Instns. (Fall 2007) Bench Notes to CALCRIM No. 371 [‘No authority imposes a duty to give this instruction sua sponte’].)... As the Court of Appeal pointed out below, ‘an instruction that tells the jury what kinds of rational inferences may be drawn from the evidence does not provide any insight jurors are not already expected to possess.’ [Citation.] Such instructions, while helpful in various circumstances, are not vital to the jury’s ability to analyze the evidence and therefore are not instructions that must be given to the jury even in the absence of a request.” (Najera, supra, 43 Cal.4th at p. 1139, fn. omitted.)
Defendant’s reliance upon People v. Atwood(1963) 223 Cal.App.2d 316, 334 (Atwood), for the proposition the court had a sua sponte duty to give CALCRIM No. 371 is misplaced. In Najera our Supreme Court stated it did “not read Atwood as imposing a categorical duty on trial courts to instruct on these issues.” (Najera, supra, 43 Cal.4th at p. 1139, fn. 3.) Instead, the sua sponte duty to instruct on adoptive admissions and false statements indicating a consciousness of guilt in Atwood was based upon “ ‘particular evidentiary circumstances of the case, ’ ” and other instructions the trial court had given that could have affirmatively mislead the jury. (Najera, at p. 1139, fn. 3.) Moreover, the Supreme Court stated it had disapproved Atwood to the extent it held that a trial court must instruct sua sponte on adoptive admissions. (Najera, at p. 1139, fn. 3, citing People v. Carter (2003) 30 Cal.4th 1166, 1197-1198 .)
In any event, even if it were error to fail to instruct sua sponte on consciousness of guilt, the error would be harmless under either standard upon which defendant relies. (See Chapman, supra, 386 U.S. at p. 24; Watson, supra, 46 Cal.2d at p. 836.) The omission of CALCRIM No. 371 could not have prejudiced defendant for two reasons:
First, other instructions informed the jury of the essential principles set forth in CALCRIM No. 371. The essential principles set forth in CALCRIM No. 371 are: (1) the jury may draw an inference of consciousness of guilt from a defendant’s attempt to create false evidence; (2) the jury cannot draw such an inference unless it determines the defendant made such an attempt; (3) if it finds the defendant did attempt to fabricate evidence, it is up to the jury to decide the meaning and importance of this attempt; and (4) evidence of an attempt to create false evidence or testimony cannot, by itself prove guilt. The trial court gave CALCRIM No. 358, which informed the jury that before it drew any inference based upon defendant’s “written statements” (which would logically include the jail cell notes), it must “decide whether defendant made” the statements, and it was up to the jury “to decide how much importance to give” them. The court also gave CALCRIM No. 359, which informed the jury it could not convict defendant “based on his out-of-court statements alone.” The court also gave CALCRIM Nos. 223 and 224 on general principles applicable to circumstantial evidence.
Read together, the foregoing instructions informed the jury of all but the first principle of CALCRIM No. 371, identifying an attempt to fabricate evidence as one circumstance permitting an inference of consciousness of guilt. The court filled this gap by giving CALCRIM No. 372, which conveys the general concept that some circumstances permit an inference of consciousness of guilt, and specifies flight as one circumstance permitting such an inference. Repeating the concept as it relates specifically to an attempt to fabricate evidence was unnecessary because the determination of what inference to draw from a specific type of circumstantial evidence involves an ordinary commonsense analysis any jury would have undertaken even without CALCRIM No. 371. (Najera, supra, 43 Cal.4th at p. 1139.) We find it inconceivable that any jury given the foregoing instructions would not also have related these instructions to the specific evidence of the jail cell notes, and applied the same principles to determine whether to draw an inference of consciousness of guilt from this evidence, and how much weight to give it.
Second, the notes found in defendant’s jail cell were not the primary evidence of defendant’s guilt. Indeed as we have already outlined in our analysis of defendant’s claim of evidentiary error, these notes were but a minor part of otherwise overwhelming evidence of guilt. We therefore are confident that under the Chapman or Watson standard, even if CALCRIM No. 371 had been given, the result would not have been any more favorable to defendant.
For similar reasons, defendant’s alternative argument that defense counsel rendered ineffective assistance by failing to request CALCRIM No. 371 fails. To establish ineffective assistance of counsel defendant must demonstrate counsel’s omission fell below the standard of reasonable competence, and that it is reasonably probable the result would have been different had CALCRIM No. 371 been given. (Strickland v. Washington (1984) 466 U.S. 668, 687-696; People v. Ledesma (1987) 43 Cal.3d 171, 215-218.) Since we have already concluded the failure to give CALCRIM No. 371 was harmless, defendant cannot establish the latter.
We also cannot find counsel’s representation was incompetent if counsel could have had informed tactical reasons for failing to request CALCRIM No. 371. (People v. Stewart (2004) 33 Cal.4th 425, 459 (Stewart); People v. Pope (1979) 23 Cal.3d 412, 425-426.) Although defendant asserts there is no conceivable tactical explanation for failing to request CALCRIM No. 371, we do not agree. Counsel could have reasonably concluded asking for a specific instruction relating to the jail cell notes would not aid his defense because “[g]iving the instruction might cause the jury to place undue significance on bits of testimony that the defendant would prefer it not examine so closely.” (People v. Carter, supra, 30 Cal.4th at p. 1198.) Absent some affirmative evidence in the record to the contrary, we must assume counsel made an informed tactical choice. (Stewart, supra, at p.459.)
III. Cruel and Unusual Punishment
The aggregate term of 18 years two months consisted of: (1) the midterm of three years for the conviction for one count of robbery (count 1) and a consecutive term of 10 years for the enhancement pursuant to section 12022.53, subdivision (b) for personal use of a firearm in the commission of the robbery; (2) a consecutive term of one year (one-third the midterm) for conviction of another robbery count (count 3), and a consecutive term of three years four months for the related section 12022.53, subdivision (b) enhancement; and (3) a consecutive term of 10 months for the attempted carjacking (count 7). With respect to each of the other two robbery counts (counts 4 and 5) the court imposed concurrent terms of three years, and 10 years for the related section 12022.53 enhancements.
The sentences on all remaining counts were also concurrent, and did not include any related enhancements pursuant to section 12022.53, subdivision (b).
Defendant contends the terms for the enhancements prescribed by section 12022.53, subdivision (b), constitute cruel and unusual punishment under the Eighth Amendment to the United States Constitution and article I, section 17 of the California Constitution both on their face and as applied, because they render the aggregate term disproportionate to his crimes and his individual culpability.
Defendant’s federal and state constitutional facial challenge to the enhancements prescribed by section 12022.53 is based on what defendant asserts is a failure of this statutory scheme to recognize significant gradations of culpability depending on the severity of the underlying offense and other mitigating factors. This argument has already been considered and rejected. In People v. Martinez (1999) 76 Cal.App.4th 489 (Martinez), the court rejected the contention that a 25-years-to-life enhancement under section 12022.53, subdivision (d), constituted cruel or unusual punishment. It reasoned: “Appellant, focusing only on subdivision (d), contends ‘[t]he statute is constitutionally defective because it does not recognize significant gradations of culpability depending on the severity of the current offense, and does not take into consideration mitigating factors.’ This is not a fair description of the statute. Section 12022.53 as a whole represents a careful gradation by the Legislature of the consequences of gun use in the commission of serious crimes. The section is limited, in the first place, to convictions of certain very serious felonies. The statute then sets forth three gradations of punishment based on increasingly serious types and consequences of firearm use in the commission of the designated felonies: 10 years if the defendant merely used a firearm, 20 years if the defendant personally and intentionally discharged it, and 25 years to life if the defendant’s intentional discharge of the firearm proximately caused great bodily injury. Furthermore, the provision in question is an enhancement to the base term for the underlying conviction; a trial court retains flexibility as to fixing the underlying base term....” (Martinez, supra, 76 Cal.App.4th at pp. 494-495, fn. omitted; see also; People v. Taylor (2001) 93 Cal.App.4th 318, 323-324; People v. Villegas (2001) 92 Cal.App.4th 1217, 1231; People v. Zepeda (2001) 87 Cal.App.4th 1183, 1214-1215.)
We find the reasoning of Martinez persuasive and conclude it applies equally to defendant’s challenge to the term prescribed by section 12022.53, subdivision (b), based upon use of a firearm. Use of a firearm obviously increases the danger created by commission of the underlying offense, but is less culpable than the facts exposing a defendant to greater enhancements pursuant to other subdivisions of section 12022.53, such as discharging it or causing great bodily injury, and that gradation of culpability is recognized by the shorter 10-year term. The court also retained flexibility in selecting the base term for each robbery count and did so by selecting the midterm.
Defendant’s argument that the enhancements the court imposed pursuant to section 12022.53, subdivision (b), constitute cruel and unusual punishment as applied is also without merit. A punishment may violate article I, section 17 of the California Constitution if “it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.” (In re Lynch (1972) 8 Cal.3d 410, 424.) An examination of the nature of the offense and of the offender, “ ‘with particular regard to the degree of danger both present to society’ ” is particularly relevant in determining this issue. (People v. Dillon (1983) 34 Cal.3d 441, 479 (Dillon).) In assessing the nature of the offense, a court should consider the circumstances of the particular offense such as the defendant’s motive, the way the crime was committed, the extent of his involvement and the consequences of his acts. (Ibid.) In analyzing the nature of the offender, a court should consider the defendant’s “age, prior criminality, personal characteristics, and state of mind.” (Ibid.) “Reducing a sentence under Dillon ‘is a solemn power to be exercised sparingly only when, as a matter of law, the Constitution forbids what the sentencing law compels.’ [Citation.]” (People v. Felix (2003) 108 Cal.App.4th 994, 1000.)
The punishment the trial court imposed is proportionate to defendant’s culpability considering the nature of the offense and the offender. Defendant acknowledges armed robbery in the abstract is a serious offense, but argues the robberies as actually committed were all part of a single episode of aberrant behavior. As for his individual culpability based upon factors such as prior criminality and personal characteristics, he states he had no prior felony convictions, and suffered from bipolar and hyperactivity disorder.
The record paints a different picture. The robberies were not merely an isolated impulsive aberrant incident. Defendant engaged in some planning, including stealing his father’s gun and using a bandana to conceal his identity. He did not merely use a gun to threaten the students he robbed, he used it to strike one of them in the face to force compliance with his demands, and punched or pushed one of the others. The day after the robberies, defendant continued the crime spree by attempting a carjacking to escape the police. Moreover, although defendant had no prior felony convictions he had hardly been living a crime free life: He had four misdemeanor convictions for conduct between April and November 2007 for second degree burglary, vandalism, being drunk in public and appropriation of lost property. He was also on probation when he committed the armed robberies, and other current offenses. As for the diagnoses of bipolar and attention deficit hyperactivity disorder, these diagnoses had been made when defendant was much younger. Moreover, defendant told the probation officer he had no current mental health issues, and suspected any prior issues were caused by medications he stopped taking at age 18. In sum, defendant’s criminal conduct was not an isolated incident. It was planned, unprovoked, violent and involved the use of a gun, and he had no mental health issues or other personal characteristics that lessened his culpability.
Defendant also argues his punishment is disproportionate when compared to punishment he would have received had he committed the four robberies without using a firearm and been sentenced to four full consecutive mid-year terms. The comparison is inapt because the enhanced sentence is based upon the jury’s finding of a significant additional fact, i.e., defendant’s personal use of a firearm. “[T]he Legislature determined in enacting section 12022.53 that the use of firearms in commission of the designated felonies is such a danger that, ‘substantially longer prison sentences must be imposed... in order to protect our citizens and to deter violent crime.’ The ease with which a victim of one of the enumerated felonies could be killed or injured if a firearm is involved clearly supports a legislative distinction treating firearm offenses more harshly than the same crimes committed by other means, in order to deter the use of firearms and save lives. [Citations.] That is this law’s purpose.” (Martinez, supra, 76 Cal.App.4th at pp. 497-498; see also People v. Villegas, supra, 92 Cal.App.4th at p. 1231.) The Legislature wanted to send a “ ‘clear message: If you use a gun to commit a crime, you’re going to jail, and you’re staying there.’ ” (Martinez, at p. 498.) The additional fact of defendant’s use of a firearm distinguishes the ordinary use of force or fear in the commission of a robbery from robberies committed by use of a firearm, and the prescribed 10-year enhancement for each robbery so committed is proportionate to the increased seriousness of these offenses. We conclude the record does not show that the statutory punishment is grossly disproportionate in light of the nature of the offense and the nature of the offender, and therefore is not cruel or unusual as applied to him under the state constitutional standard.
For the same reasons, the sentence is not grossly disproportionate as applied under federal standards. (See Harmelin v. Michigan (1991) 501 U.S. 957, 1001; Lockyer v. Andrade (2003) 538 U.S. 63, 77; Ewing v. California (2003) 538 U.S. 11, 21.) The Supreme Court of the United States has upheld statutory schemes that result in life imprisonment for recidivists upon a third conviction for a nonviolent felony in the face of challenges that such sentences violate the federal constitutional prohibition against cruel and unusual punishment. (See Ewing v. California, supra, 538 U.S. at pp. 19-21, 28-30 [25-years-to-life sentence under three strikes law for theft of three golf clubs worth $399 apiece]; Lockyer v. Andrade, supra, 538U.S. at pp. 66-67, 73-77[two consecutive terms of 25 years to life for two separate thefts of less than $100 worth of videotapes]; Harmelin v. Michigan, supra, 501 U.S. 957, 961, 998 [mandatory life sentence without the possibility of parole for possession of 672 grams of cocaine]; Rummel v. Estelle (1980) 445 U.S. 263, 264-266, 284-286 [life sentence for a nonviolent recidivist whose third conviction was for obtaining $120.75 by false pretenses].) Here, the aggregate sentence imposed is shorter than in all the foregoing cases, yet the underlying offenses are much more serious than theft and drug possession. Moreover, defendant’s personal use of a firearm poses at least an equivalent danger to the public as the recidivism that triggers a 25-years-to-life sentence under the three strikes law.
Disposition
The judgment is affirmed.
We concur: Marchiano, P. J., Dondero, J.