Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CM024393
ROBIE, J.
A jury found defendant Donald Wayne Riley guilty of petty theft with a theft-related prior conviction and assault with a deadly weapon by means of force likely to produce great bodily injury. It was found that defendant had two strikes and had served two prior prison terms. The court sentenced him to two consecutive 25-year-to-life terms.
On appeal, defendant raises the following nine contentions: (1) trial counsel was ineffective for failing to request a bifurcated trial on the strikes; (2) the trial court misinstructed on the burden of proof required for conviction; (3) his conviction for petty theft with a prior must be reversed; (4) his strike for child endangerment with personal use of a dangerous or deadly weapon could not to be used to enhance his sentence; (5) trial counsel was ineffective for “fail[ing] to assert a legal objection to the incompleteness of proof and the resultant defective jury verdicts”; (6) trial counsel was ineffective for failing to object to the imposition of consecutive sentences; (7) the trial court abused its discretion in imposing consecutive sentences; (8) the trial court abused its discretion in refusing to dismiss one or both of his strikes pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497; and (9) his sentence “violate[s] the Eight[h] amendment and [federal] due process prohibition against punishing a person’s status.” Rejecting these contentions, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
At 4:30 p.m. on January 21, 2006, defendant walked into a Safeway store in Chico. He went to the back of the store’s meat aisle and picked up a package of steaks and put it underneath his jacket. He then went to the liquor aisle and picked up a bottle of peppermint Schnapps. He walked out of the store without paying for these items.
Observing defendant’s behavior was Dane Baxter, a loss prevention employee who worked for Monument Security, a company that contracted with Safeway. Baxter followed defendant out the door and signaled to his partner, Kincade Dunbar, to help him. Running, Baxter caught up to defendant, identified himself as security for the store, and said he needed to talk with defendant about some merchandise. Dunbar asked defendant to give him the steaks and alcohol, and defendant complied.
Baxter told defendant that he had to go back to the store. For their protection, Dunbar held defendant’s left arm, and Baxter held defendant’s right arm. Defendant started walking back with them, but before they made it back to the store, defendant threw his hand up in the air. Dunbar and Baxter grabbed defendant again and told him that he had to go inside. Defendant “threw his elbow out and began to reach into his pocket.” Worried that defendant’s hand was in his pocket, Baxter and Dunbar wrestled defendant to the ground. Defendant’s hand came out of his pocket holding a knife. Baxter yelled that defendant had a knife.
Defendant “ma[d]e a motion to stab” Baxter and Dunbar, and Dunbar jumped on defendant. Defendant “started to spin the knife around trying to cut [Baxter’s] hand as [Baxter] h[e]ld on to [defendant’s] wrist.” Baxter grabbed defendant’s hand to keep defendant from stabbing Baxter or Dunbar. Baxter “grabbed a bit high,” and the blade nicked the bottom of his hand. The struggle lasted for “several minutes.”
The struggle ended when a bystander, seeing that Baxter and Dunbar “didn't have [defendant] under control at all,” “shove[d]” a shopping cart on defendant’s hand, stepped on the blade of the knife, and wrestled the knife from defendant’s grip.
DISCUSSION
I
Trial Counsel Was Not Ineffective For Failing To Request Bifurcation Of The Strike Priors
Defendant contends his trial counsel was ineffective for failing to request a bifurcated trial on the strike priors of first degree burglary and child endangerment involving personal use of a dangerous or deadly weapon. We disagree because trial counsel could have had at least two tactical reasons for failing to request a bifurcated trial.
To establish ineffective assistance of trial counsel on direct appeal, a defendant must show: (1) counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms; and (2) the defendant was prejudiced as a result. (People v. Lucas (1995) 12 Cal.4th 415, 436.) Prejudice is shown when there is a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different. (Ibid.) “Reviewing courts defer to counsel’s reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a ‘strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.’” (Id. at pp. 436-437.) We reverse a conviction on direct appeal due to ineffectiveness of counsel only where the record of the trial itself, without regard to any other evidence such as declarations or affidavits from trial counsel, “‘“affirmatively discloses that counsel had no rational tactical purpose for [his or her] act or omission.”’” (Id. at p. 437.)
Here the record shows that counsel could have had at least two reasonable tactical reasons for failing to request bifurcation.
One reasonable tactical reason could have been that defendant’s prior strike convictions would have come in anyway for impeachment purposes should defendant testify. During in limine motions when counsel stated that he was not going to make a motion to bifurcate the priors, he also noted that defendant had not made a decision about whether he would testify. Trial counsel could have concluded that bifurcating the trial on the strikes would serve no useful purpose, and that defendant’s candid admission of the prior convictions would be beneficial. By having defendant acknowledge his prior felony convictions, trial counsel could have reasonably thought that jurors would believe that defendant was being forthright in this and other parts of his testimony, should he take the stand.
A second reasonable tactical reason could have been that trial counsel believed that by jurors hearing of the prior felonies and learning that they were required to rule on their validity, the jurors might have been clued in this was a three strikes case, even though the court prohibited the parties from labeling the case as such. Trial counsel may have believed that defendant could benefit from a juror’s hostility to that law or a desire to nullify that law.
Indeed, trial counsel opposed the prosecutor’s motion that the parties not refer to the prior conviction allegations as strikes.
There is nothing in the record to suggest that trial counsel did not have these tactical reasons in mind, despite defendant’s argument on appeal that trial counsel simply believed that the strike allegations had to be pled and proved to the jury. This still would not go to the issue of why trial counsel did not want to bifurcate those allegations.
Because trial counsel could have had these tactical reasons for failing to request bifurcation of the strike priors, defendant’s argument fails.
II
The Trial Court Did Not Misinstruct On The Burden Of Proof Required For Conviction
Defendant contends the trial court misinstructed on the burden of proof required for conviction pursuant to CALCRIM Nos. 103 and 220, because the abiding conviction language in these instructions fails to convey to the jury “the gravity or weight of the proof required,” making the instructions akin to the “civil preponderance standard.”
The version of CALCRIM Nos. 103 and 220 given in this case was as follows:
As to the language about which defendant complains, this court recently held that it is not constitutionally defective. “CALCRIM No. 220 does not suggest an impermissible definition of reasonable doubt to the jury. The instruction defines reasonable doubt as the absence of an abiding conviction in the truth of the charges. ‘An instruction cast in terms of an abiding conviction as to guilt, . . . correctly states the government’s burden of proof.’ [Citation.] The instruction neither lowers the prosecution’s standard of proof nor raises the amount of doubt the jury must have in order to acquit a defendant.” (People v. Guerrero (2007) 155 Cal.App.4th 1264, 1268.)
Moreover, the two Supreme Court cases on which defendant relies do not compel a contrary conclusion. In Hopt v. People of Utah (1887) 120 U.S. 430 [30 L.Ed. 708], the Supreme Court did not hold that a certain definition of reasonable doubt was necessary. Rather, it held that an instruction “like the one given in this case, by reference to the conviction upon which the jurors would act in the weighty and important concerns of life, would be likely to aid them to a right conclusion.” (Id. at p. 441 [30 L.Ed. at p. 712].) Similarly in Coffin v. United States (1895) 156 U.S. 432 [39 L.Ed. 481], the Supreme Court again did not hold that a certain definition of reasonable doubt was necessary. Rather, it held that it was error for the trial court to refuse to give an instruction regarding the presumption of innocence, even though it had given the reasonable doubt instruction. (Id. at pp. 453, 460-461 [39 L.Ed. at pp. 491, 493-494].)
III
Reversal Of Defendant’s Conviction For Petty Theft With A Theft-Related Prior Is Not Required
Defendant contends that his conviction for petty theft with a theft-related prior must be reversed because the court did not find that he was the person who sustained the theft-related prior and the jury did not make specific findings on either of the theft-related priors that were charged as the enhancing priors. We disagree that reversal is required.
The information charged defendant with petty theft with a theft-related prior and alleged that he had two priors that qualified -- a 1984 burglary and a 1989 petty theft with a prior. During in limine motions, defendant unsuccessfully moved to have the prosecutor elect one of the two alleged priors on which to proceed.
To prove the 1984 burglary conviction, the prosecutor admitted exhibit 3-A, which was a “969b package” consisting of a certified chronological history of the case, an abstract of judgment, a fingerprint card, and a booking photograph of defendant.
To prove the 1989 petty theft with a prior conviction, the prosecutor admitted exhibit 3-C, a certified abstract of judgment.
The prosecutor also called Matthew Fuchs as a witness, who was a parole agent with the California Department of Corrections and Rehabilitation (CDCR). Fuchs testified, in part, that he had reviewed these exhibits, they reflected defendant’s chronological history with the CDCR, they contained defendant’s “CDC” numbers, and they showed that defendant was convicted of burglary in 1984 and petty theft with a prior in 1989.
Thereafter, the prosecutor asked the court to make a finding on the identity of the person who “suffered the prior convictions at issue” and added “[e]ssentially the law is that the Court determines identity and whether the conviction qualifies as a strike or not.” The court and the prosecutor then had the following exchange:
“THE COURT: The Court is going to find that the prior convictions set forth in Exhibit 3A --
“[THE PROSECUTOR]: I would be asking for it on A and B. C is not a --
Exhibits 3-A (used to prove defendant’s first degree burglary conviction) and 3-B (used to prove defendant’s child endangerment conviction) involved strike offenses. Exhibit 3-C (used to prove defendant’s previous petty theft with a prior conviction) did not.
“THE COURT: -- and the conviction in 3-B are identified as the defendant’s, Donald Riley. The identification of Mr. Donald Wayne Riley is the same. Secondly, the Court is finding that the prior conviction in 3-A for Penal Code Section 459, burglary, in the first degree, is a strike by law. And 3-B, which is the 273a(a)(1) [child endangerment] with the 12022(b) enhancement [personal use of a deadly or dangerous weapon], is a strike . . . .”
Thereafter, court instructed the jury as follows:
“If you find the defendant guilty of petty theft, you must then decide whether the People have proved the additional allegation that the defendant has been convicted of a theft offense before and served a term in a penal institution as a result of that conviction.
“It has already been determined that the defendant is the person named in Exhibits 3-A and C.”
The court also instructed the jury:
“You must consider each alleged [prior theft-related] conviction separately. The People have presented evidence of more than one prior conviction to prove that defendant was previously convicted of a theft offense.
“You must not find the defendant guilty unless:
“One, you all agree that the People have proved that the defendant was previously convicted of at least one of these alleged prior convictions and you all agree on which prior conviction he committed; or
“You all agree the People have proved that the defendant was previously convicted of all, both alleged prior convictions.”
The jury returned the following verdict with respect to the petty theft with a prior conviction:
“We the Jury in the above entitled case, do hereby find the defendant, Donald Wayne Riley, charged in Count One with a violation of Penal Code section 666, Petty Theft with Priors, a felony: . . . [¶] Guilty”
As to the “priors” finding, the jury returned the following verdict:
“We the jury in the above entitled case, having found the defendant, Donald Wayne Riley, guilty of Petty Theft, do further make the following findings:
“1. That Defendant was previously convicted of one or both of the alleged prior theft convictions: . . . [¶] True.”
“2. That defendant served a term in a penal institution for that conviction . . . [¶] True.”
Based on this record, we reject defendant’s argument that his conviction for petty theft with a prior must be reversed because “there was no finding at all that [defendant] was . . . the person who . . . sustained a previous conviction for petty theft,” because the court made an implied finding that it was defendant who sustained the 1984 petty theft with a prior conviction. The prosecutor made the court aware that it was the court’s responsibility to determine the issue of identity. The prosecutor presented uncontested evidence documenting the existence of the prior convictions and the fact that defendant was the person who had sustained all the prior convictions. While the prosecutor led the court astray on making a finding on the record as to whether defendant was the person identified in exhibit 3-C, the court instructed the jury that it already had been determined that defendant was the person named in the exhibit pertaining to the 1984 petty theft with a prior conviction. Based on these facts, the court impliedly made the finding that defendant was the person who sustained the 1984 petty theft with a prior conviction. (See People v. Clair (1992) 2 Cal.4th 629, 691, fn. 17 [trial court impliedly found a prior serious felony enhancement true “when it imposed an enhancement expressly for the underlying prior conviction”]; People v. Chambers (2002) 104 Cal.App.4th 1047, 1050-1051 [same].)
We also reject defendant’s argument that his conviction for petty theft with a prior must be reversed because the jury did not make specific findings on either of the theft-related priors that were charged as the enhancing priors. Penal Code section 1158, which deals with jury findings on “previous convictions,” requires that “[i]f more than one previous conviction is charged a separate finding must be made as to each.” Here, while the verdict form did not require the jury to make separate findings as to each prior, the jury did find that one or both priors were true, and any “irregularity” in the jury’s verdict for failure to make separate findings as to the two theft-related priors was harmless under any prejudice-based standard of review. (See People v. Pierson (1969) 273 Cal.App.2d 130, 134.) The prosecutor admitted into evidence certified documents showing that defendant was convicted of a 1984 burglary and a 1989 petty theft with a prior, had a parole agent from the CDCR testify regarding the meaning of these documents, and defendant presented no evidence to the contrary. On this record, any error in failing to have the jury make separate true findings as to each theft-related prior was harmless.
All further statutory references are to the Penal Code unless otherwise indicated.
Contrary to defendant’s position, we find nothing to support his argument that this type of error is not subject to harmless error analysis.
IV
The Jury Was Not Required To Find That Defendant’s Strike Prior Relating To Child Endangerment Involved The Personal Use Of A Dangerous Or Deadly Weapon
Defendant contends his strike prior of child endangerment with personal use of a dangerous or deadly weapon could not be used to enhance his sentence because the jury did not find the personal use allegation to be true. Defendant’s contention fails because the court was allowed to, and in fact did, make the determination that defendant personally used a dangerous or deadly weapon qualifying the offense as a strike.
The California Supreme Court has held “the statutory right to have a jury decide whether the defendant ‘has suffered’ (§§ 1025, 1158) the prior conviction does not include the inquiry whether the conviction qualifies as a strike.” (People v. Kelii (1999) 21 Cal.4th 452, 457.) In Kelii, a jury “found defendant had previously suffered three burglary and one attempted burglary convictions. The trial court later found that the prior convictions were of first degree or attempted first degree burglary and hence were residential and qualified as serious felonies.” (Kelii, at p. 454.) In ruling the trial court’s determination permissible, the Supreme Court noted that “[s]ometimes the determination [made by the trial court] does have a factual content” “[b]ut these factual questions are of limited scope” and require the consideration “only [of] court documents.” (Id. at pp. 456-457.)
Such was the case here. To prove the strike, the prosecutor presented a certified abstract of judgment showing that in 1994 defendant was convicted of child endangerment with an enhancement for “12022(b)PC,” which is “personal[] use[] [of] a deadly or dangerous weapon in the commission of a felony.” (§ 12022, subd. (b)(1).) Thereafter, the court “f[ound] that the prior conviction in . . . 3-B, which is the 273a(a)(1) [child endangerment] with the 12022(b) [personal use of a dangerous or deadly weapon] enhancement, is a strike as defined in . . . [¶] 667. . . [¶] (b) through (i).)” The prosecutor asked, “Would the Court also note that falls within the definition of Penal Code [section] 1192.7(c)(23) as personal use of a deadly weapon?” The court stated, “I will so find” and then clarified, “I’m finding that it is personal use of a deadly weapon as well.”
Given these explicit findings made after the prosecutor presented its evidence, we reject defendant’s argument that “[t]he judge’s determination was simply a preliminary ruling on a question of law, assuming and pending actual proof.”
Contrary to defendant’s arguments, these determinations were sufficient for the court to enhance defendant’s sentence under the three strikes law.
V
Trial Counsel Was Not Ineffective For Failing To Object Because Proof Of The Strike Priors Was Not Incomplete And Any Defect In The Jury Verdict Was Harmless
Because there was no error in the court’s finding that the child endangerment offense was a strike and no prejudicial error in the findings and verdict forms with respect to the priors that elevated the current theft to a felony, we reject defendant’s argument that trial counsel was ineffective for “fail[ing] to assert a legal objection to the incompleteness of proof and the resultant defective jury verdicts.”
VI
Trial Counsel Was Not Ineffective For Failing To Object To The Imposition Of Consecutive Sentences
Defendant contends trial counsel was ineffective for failing to object to the imposition of consecutive sentences, because “it is indisputable that [defendant’s] current felony convictions were committed on the same occasion.” We disagree.
Under the three strikes law, consecutive sentencing is mandatory “[i]f there is a current conviction for more than one felony count not committed on the same occasion, and not arising from the same set of operative facts . . . .” (§§ 667, subd. (c)(6), see subd. (c)(7), 667.61, 1170.12, subd. (a)(6) & (a)(7); People v. Casper (2004) 33 Cal.4th 38, 42.)
The California Supreme Court in People v. Lawrence (2000) 24 Cal.4th 219 set forth the following test for determining whether the mandatory consecutive sentencing provision of the three strikes law applies: “If there are two or more current felony convictions ‘not committed on the same occasion,’ i.e., not committed within close temporal and spacial proximity of one another, and ‘not arising from the same set of operative facts,’ i.e., not sharing common acts or criminal conduct that serves to establish the elements of the current felony offenses of which defendant stands convicted, then ‘the court shall sentence the defendant consecutively on each count’ pursuant to subdivision (c)(6). Conversely, where a sentencing court determines that two or more current felony convictions were either ‘committed on the same occasion’ or ‘aris[e] from the same set of operative facts’ as we have construed those terms in [People v.] Deloza [(1998) 18 Cal.4th 585] and the instant case, consecutive sentencing is not required under the three strikes law, but is permissible in the trial court’s sound discretion.” (Lawrence, at p. 233.)
The Supreme Court’s analysis in Lawrence is instructive. There, the defendant’s initial crime was theft of a bottle of brandy from a market. (People v. Lawrence, supra, 24 Cal.4th at pp. 223-224.) While fleeing from the crime scene, the defendant trespassed in the backyard of two new victims, Rojas and LaVastida, and assaulted them with the bottle of brandy. (Id. at p. 224.) The court explained, “The first crime involved an act of theft directed at one group of victims, the second involved assaultive conduct directed at an unrelated pair of victims. The two criminal episodes were separated spacially by at least one to three city blocks, and temporally by two to three or more minutes (from the time defendant stole the brandy from the market until the point he committed the aggravated assault upon LaVastida after having fled from the first crime scene, trespassed into the Rojas/LaVastida backyard, and fled again, chased by Rojas . . . down a long driveway to the street, where he hit LaVastida with the bottle before being subdued).” (Id. at p. 234.) The court concluded that the felony assault upon LaVastida did not arise out of the “‘same set of operative facts’” as the theft from the market and held that because the defendant’s “multiple current felony convictions neither were committed on the same occasion . . . nor arose from the same set of operative facts, the trial court correctly concluded” that consecutive sentencing “was mandated by subdivision (c)(6).” (Lawrence, at p. 234.)
In contrast, “In Deloza, supra, 18 Cal.4th 585, the defendant entered a furniture store with an armed companion, who pointed a gun at a salesperson while the defendant took $1,200 from the cash register, $200 from the wallet of another salesperson, and the purse of a female customer who approached him, before the two fled. (Id. at p. 589.) The defendant was convicted of four counts of second degree robbery. On those facts [the California Supreme Court] held the offenses were committed on the same occasion within the meaning of section 1170.12, subdivision (a)(6) and (7). [Citations.]” (People v. Lawrence, supra, 24 Cal.4th at pp. 225-226.)
Although admittedly a closer call than either Lawrence or Deloza, we believe that defendant’s theft and aggravated assault were neither committed on the same occasion nor arose from the same set of operative facts as those terms are properly understood.
Defendant’s aggravated assault did not take place at the same time or in the same location where he stole the meat and liquor but rather occurred later outside the store. It took place after defendant was stopped by the two security guards, after he had given the meat and liquor to one of the guards, and after he had agreed to walk back to the store with them. In other words, the assault took place outside the store after defendant had an opportunity to reflect on the theft he had committed inside the store. (See People v. Lawrence, supra, 24 Cal.4th at pp. 238-239, conc. opn. of Mosk, J. [linking greater culpability to the opportunity to reflect]; People v. Jenkins (2001) 86 Cal.App.4th 699, 706 [in interpreting the term “committed on the same occasion” factors to consider include “whether the criminal activity was interrupted, whether there was any event that could be considered to separate one event from another event, and whether the elements of one offense have been satisfied in a manner to render that offense completed before the commission of further criminal acts constituting additional and separately chargeable crimes”].)
Moreover, defendant’s theft offense was complete once he left Safeway without paying for the meat and liquor. (People v. Lawrence, supra, 24 Cal.4th at p. 233 [in determining whether the offenses arose out of the same set of operative facts, it is relevant whether all the elements of the first crime were completed before the elements of the second or subsequent crimes were begun].) The theft neither shared any elements with the aggravated assault nor, being complete, involved facts that unfolded together with the later assault. (Lawrence, at pp. 232-233 [the term “same set of operative facts” refers to the situation where the facts that support the elements that underlie the first crime the defendant is convicted of overlap or necessarily unfold into the facts supporting the elements underlying the second or subsequent crimes].)
Defendant places weight on the fact that he “was in flight from the theft and had not reached a place of safety.” But this argument was rejected by the majority in Lawrence, that stated, “We find no basis for concluding the voters who enacted the initiative version of the three strikes law (or the drafters of the virtually identical legislative version) nonetheless intended that all offenses a defendant chooses to commit while still in flight from the first crime scene should be excluded from the scope of the mandatory consecutive-sentencing provision.” (People v. Lawrence, supra, 24 Cal.4th at p. 229.)
Accordingly, then, consecutive sentences were mandatory, and trial counsel was not ineffective for failing to object.
VII
The Trial Court Did Not Abuse Its “Discretion” In Imposing Consecutive Sentences
Defendant contends the trial court abused its “discretion” in imposing consecutive sentences. Because we have found that the court was required to impose consecutive sentences, the trial court had no discretion to abuse.
VIII
The Trial Court Did Not Abuse Its Discretion In Denying Defendant’s Romero Motion
Defendant contends the trial court abused its discretion in denying his Romero motion because of the “de minimus and mitigated” nature of his current offenses, his “stale and non violent prior convictions,” and “criminal history of minor drug addicted criminality.” We disagree.
While the trial court has the power to dismiss a strike conviction (People v. Superior Court (Romero), supra, 13 Cal.4th at pp. 529-530), we will not disturb the trial court’s ruling absent an abuse of discretion (People v. Gillispie (1997) 60 Cal.App.4th 429, 434). Under this standard, the inquiry is whether the ruling in question “‘falls outside the bounds of reason’ under the applicable law and the relevant facts.” (People v. Williams (1998) 17 Cal.4th 148, 162.)
Here, the trial court did not abuse its discretion in denying defendant’s request to strike his prior convictions because its ruling did not fall outside the bounds of reason. Despite defendant’s attempt to recharacterize the nature of his current and past offenses, the record reflects an unrelenting pattern of criminality that spanned approximately 23 years. In 1984, defendant was convicted of felony burglary with a firearm and sentenced to six years in prison. In 1987, he was convicted of misdemeanor possession of a hypodermic needle and sentenced to jail. In 1989, he was convicted of felony petty theft with a prior theft-related conviction and sentenced to 180 days in jail and placed on six months’ probation. In 1990, he was convicted of misdemeanor use of a controlled substance and sentenced to 90 days in jail and placed on 36 months’ probation. In 1991, he was again convicted of misdemeanor possession of a hypodermic needle and placed on 24 months’ probation and “work program.” In 1994, he was convicted of felony child endangerment with personal use of a dangerous or deadly weapon and sentenced to five years in prison. From August 1999 to June 2002, he violated parole four times. In August 2002, he was again convicted of misdemeanor possession of a hypodermic needle and sentenced to 30 days in jail and placed on 36 months’ probation. In 2003, he violated probation. In 2004, he was again convicted of misdemeanor use of a controlled substance and sentenced to 90 days in jail. Later that same year, he was convicted of loitering on private property and sentenced to 10 days in jail and placed on 36 months’ probation. In 2006, defendant committed his current crimes that not only involved the arguably “de minimus” theft of steak and alcohol but also the pulling of a knife on two security guards in a struggle that lasted several minutes.
This offense involved an initial consensual encounter with the police that turned violent. According to police, they received a call to check on the welfare of a man (defendant) with a baby (his infant son) who reportedly had been “swinging” or “dropping” the baby. When the officer approached defendant in the K Street Mall area of Sacramento, defendant said that he and the baby (who was in a carrier) were fine but, as the officer inquired further, defendant became hostile, pulled a knife out of the baby carrier, and held it to the baby’s stomach area. The officer took out his gun, heard defendant say that he was going to kill the baby, and saw defendant thrust the knife at least four or five times into what appeared to be the baby’s stomach area. The officer fired at defendant’s arm and leg. The baby was eventually taken to the hospital but had no physical injures.
In light of defendant’s extensive history of criminal behavior and the nature of his current crimes, the court did not abuse its discretion in refusing to dismiss one or both of his strikes.
IX
Defendant’s Three Strikes Sentence Does Not Violate Federal Due Process
Defendant contends that his three strikes sentence “violates the federal due process proscription against punishing a person’s status,” citing Robinson v. California (1962) 370 U.S. 660 [8 L.Ed.2d 758]. Defendant’s reliance on Robinson is misplaced.
In Robinson, the United States Supreme Court invalidated a law that made being addicted to drugs a crime, holding that a “state law which imprisons a person thus afflicted as a criminal, even though he has never touched any narcotic drug within the State or been guilty of any irregular behavior there, inflicts a cruel and unusual punishment in violation of the Fourteenth Amendment.” (Robinson v. California, supra, 370 U.S. at p. 667 [8 L.Ed.2d at p. 763].) According to the court, the law was flawed because it “ma[de] the ‘status’ of narcotic addiction a criminal offense, for which the offender may be prosecuted ‘at any time before he reforms’ . . . whether or not he has ever used or possessed any narcotics within the State, and whether or not he has been guilty of any antisocial behavior there.” (Id. at p. 666 [8 L.Ed.2d at pp. 762-763.)
Unlike Robinson, who had not committed a current crime, defendant committed two current crimes and received a lengthy sentence based, in part, on his recidivism. Since Robinson, the United States Supreme Court has repeatedly and recently upheld recidivist sentences and the policies behind recidivist statutes. (See, e.g., Ewing v. California (2003) 538 U.S. 11 [155 L.Ed.2d 108] [25-year-to-life sentence under three strikes law for felony grand theft]; Lockyer v. Andrade (2003) 538 U.S. 63 [155 L.Ed.2d 144] [two consecutive terms of 25 years to life for two separate thefts of less than $100 worth of videotapes].) For these reasons, defendant’s challenge to his sentence under Robinson fails.
DISPOSITION
The judgment is affirmed.
We concur: BLEASE, Acting P.J., SIMS, J.
“The fact that a criminal charge has been filed against the defendant is not evidence that the charge is true. You must not be biased against the defendant just because he has been arrested, charged with a crime, or brought to trial.
“A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove each element of the crime and special allegation beyond a reasonable doubt.
“Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt.
“‘Proof beyond a reasonable doubt’ is proof that leaves you with an abiding conviction that the crime is true. The evidence need not eliminate all possible doubt, because everything in life is open to some possible or imaginary doubt.
“In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal, and you must find him not guilty.”