Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. SS061474
McAdams, J.
Defendant was charged with two counts of infliction of corporal punishment on a cohabitant and one count of aggravated assault. (Pen. Code §§ 273.5, subd. (a); 245, subd. (a)(1).) A jury convicted him of assault and one of the two counts of infliction of corporal punishment (count 2) and acquitted him of the other (count 1). Defendant admitted allegations that he had suffered a prior strike conviction and had served a prior prison term therefor. (§§ 1170.12, subd. (c)(1), 667.5, subd. (b).) Defendant was sentenced to prison for nine years, composed of the upper term of four years for the violation of section 273.5, doubled pursuant to the Three Strikes law, plus one year for the prior prison term. Sentence was stayed on the assault conviction. On appeal, defendant contends: (1) the trial court abused its discretion by denying defendant’s mistrial motion; (2) the prosecutor committed prejudicial misconduct; (3) the errors cumulatively prejudiced him; (4) the trial court abused its discretion by denying his Romero motion to strike his prior conviction (People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero)); (5) the imposition of the upper term violated his Sixth Amendment right to a jury trial; and (6) the court incorrectly calculated defendant’s conduct credits. The People concede error in the calculation of the defendant’s credits. We will modify the judgment accordingly and, as modified,
All further statutory references are to the Penal Code unless otherwise indicated.
STATEMENT OF THE FACTS
On April 22, 2006, defendant, his former live-in girlfriend, Michele Woodruff, Woodruff’s friend, Kelly Musgrove, and two other people were spending time at Sherwood Park in Salinas. Defendant asked Woodruff if she wanted a beer. Woodruff and Musgrove went to the store with defendant to buy beer. Defendant then called Woodruff a “whore.” She responded by elbowing defendant in the stomach; defendant retaliated by hitting her on the nose with his open hand. Woodruff testified that her nose bled. Musgrove testified that it did not.
Woodruff and Musgrove left defendant and went to Musgrove’s motel room. Defendant called the motel several times, and then showed up at their door, asking to see Woodruff. Musgrove lied and said Woodruff was not there. According to Musgrove, defendant was leaving when Woodruff ran out the door after him and hit him in the face with her fist. Defendant then swung a bag with a beer bottle in it and hit Woodruff in the head with it.
According to Woodruff, defendant was standing on the sidewalk in front of the entrance to the hotel. She walked out of the motel room to talk to him. Defendant asked her to come home, and she said no. They argued. Before turning to leave, Woodruff punched him in the nose “for back handing me earlier at the park.” She ran back towards the motel room, with defendant in pursuit on his bicycle. He caught up with her in front of the door and hit her with the bottle in the sack.
Woodruff was “bleeding a lot.” Musgrove called 911. She told the 911 operator that “Keith” had hit Woodruff in the face “earlier today, but not like this. I mean, he just … hauled off and … I mean, her eyes a[re] closed … shut and her head’s cut open real bad.”
The 911 tape was played for the jury.
Woodruff suffered a two and one-half inch long laceration that required eight to 12 sutures and left a scar. She told the physician’s assistant who treated her that her boyfriend had hit her in the head. According to him, Woodruff did not appear to be under the influence; however, the responding police officer testified that Woodruff’s breath smelled of alcohol and noted in his report that her speech was slurred.
Defendant testified in his own behalf. He admitted that in 1998 he had been convicted of a felony involving moral turpitude. He described himself as “a little hefty,” weighing “between 120 and 130 lbs.” and standing five feet seven inches tall to Woodruff’s 110 lbs. He agreed that, on his way to the store with Woodruff and Musgrove, he called Woodruff “a slut.” She punched him in the jaw but did not hurt him because she was “a light weight.” He put his arm up to block her in an “instant, like an innocent reaction.” At first, he did not think he had touched her, but then she ran away, holding her eye, leading him to think he “had poked her in the eye by accident.”
A police officer opined that at the time of trial, defendant appeared to be five feet nine inches tall and weigh 200 to 220 lbs. Woodruff testified at trial that defendant looked “pretty much” as he did on April 22, 2006.
Later, defendant went to the motel property and sat at a picnic table waiting for Woodruff to come out. He waited for her for about 20 minutes and then started to leave. Woodruff came out and called to him to stop. He stopped and waited for her. She punched him, drawing blood. She then turned around and went back to the room. Defendant was on a bicycle and pedaled 12 feet to catch up with her at the door. They argued and she “charged” him. He did not want to get hit again; he was already bleeding from her first blow. Also, he “didn’t know if she had something in her hand. It looked like she had something in her hand. She carries a knife mostly at all times.” However, defendant “really wasn’t in fear for [him]self.” He turned away, with his hands above his face; he could not see anything. He “got knocked back and it was the sound like a popping light bulb.” When he regained his balance, he saw that there was “blood gushing down her face” but he could not see the extent of her wound. She was screaming at him, “Get out of here. I want you to get out of here now.” Although Woodruff was bleeding, he did not call 911 because he forgot he had his cell phone.
DISCUSSION
I. Denial of Motion for Mistrial
At trial, Kelly Musgrove testified that just before defendant hit Woodruff in the park, she was preparing “to try to pull” her friend away if defendant “was going to do anything” because “he’s got prior hitting people and — ” Defense counsel immediately objected and moved to strike, and the trial court quickly responded: “Objection sustained. Hitting people in the past will be stricken.” The prosecutor then asked for a side bar discussion, and outside the jury’s presence explained that she was preparing to ask Ms. Musgrove if she had ever seen defendant hit Woodruff, pursuant to Evidence Code section 1109. Defense counsel objected that the prosecutor had not properly noticed the use of defendant’s prior conviction for section 1109 purposes and the court ruled that the objection was sustained. Defense counsel told the court that he was “inclined to ask the Court for a mistrial at this point. You know, I don’t know how we can unring the bell so if that was an issue before trial, I would have approached the trial differently.” The court decided: “I’m going to tell them to treat it like they never heard that. I’m denying the mistrial.” Before the jury the court instructed: “We are back on the record. The ruling instruction about past hitting, that it was stricken. The Court’s ruling [is] that you’re not to consider that for any purpose. Treat it as though you never heard of it.” The matter was not mentioned again.
Evidence Code section 1109 provides, in relevant part: “(a)(1) Except as provided in subdivision (e) or (f), in a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant’s commission of other domestic violence is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352. [¶] … [¶] (b) In an action in which evidence is to be offered under this section, the people shall disclose the evidence to the defendant, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, in compliance with the provisions of Section 1054.7 of the Penal Code.”
Defendant contends that the trial court violated state law and the federal constitution’s due process clause by denying his motion for mistrial. We disagree. We review the denial of a motion for mistrial for abuse of discretion. (People v. Cox (2003) 30 Cal.4th 916, 953; People v. Ayala (2000) 23 Cal.4th 225, 282.) “A mistrial should be granted if the court is apprised of prejudice that it judges incurable by admonition or instruction. [Citation.] Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions.” (People v. Haskett (1982) 30 Cal.3d 841, 854; People v. Hines (1997) 15 Cal.4th 997, 1038.) Only when a party’s chances of receiving a fair trial have been irreparably damaged is a mistrial appropriate. (People v. Bolden (2002) 29 Cal.4th 515, 555.) A “blurted out” statement by a witness can “provide the basis for a finding of incurable prejudice.” (People v. Wharton (1991) 53 Cal.3d 522, 565.)
Defendant argues that “exposing a jury to a defendant’s prior criminality presents the possibility of prejudicing a defendant’s case and rendering suspect the outcome of the trial.” (People v. Harris (1994) 22 Cal.App.4th 1575, 1580.) He analogizes his case to one where evidence of the defendant’s prior criminality was admitted at trial through the testimony of a police officer to prove his bad character. (People v. Cabrellis (1967) 251 Cal.App.2d 681.) The analogy is inapt, because the evidence of defendant’s prior hitting was not admitted at all; the trial court struck the testimony and instructed the jury to disregard it.
In our view, the trial court did not abuse its discretion in concluding that Ms. Musgrove’s comment was not incurably prejudicial. First, the comment was brief and was swiftly cut off by an objection that was immediately sustained. This action was followed by a “direct and pointed admonition regarding the volunteered testimony.” (People v. Wharton, supra, 53 Cal.3d at p. 566.) Second, we reject as unfounded defendant’s speculative contention that Ms. Musgrove’s ambiguous comment that “he’s got prior hitting people” must have been understood by the jury as referring to a conviction for assaulting people. As with prosecutorial misconduct, we will not “ ‘lightly infer’ that the jury drew the most damaging rather than the least damaging meaning from the [witness’] statements.” (People v. Frye (1998) 18 Cal.4th 894, 970.) Here, the trial court judged that the possibility of prejudice from Ms. Musgrove’s fleeting comment could be adequately dispelled by a strong admonition. We cannot say that judgment was arbitrary or unreasonable under these circumstances. We find no error.
II. Prosecutorial Misconduct
Defendant assigns three instances of prosecutorial misconduct in the prosecutor’s final summation. He complains that the prosecutor (1) told the jury that the defense had asked for lesser included offense instructions; (2) accused him of planning his testimony and colluding with defense counsel to present false testimony; and (3) asked the jury to consider whether defendant had a bias because of his interest in the outcome of the trial. Defense counsel did not make any contemporaneous objections to these comments. However, after the prosecutor’s summation was finished, outside the presence of the jury, he stated his objections and requested admonitions. We italicize the comments on which defendant bases his argument.
A. Factual Background
1. Lesser Included Offense
With respect to the violation of section 273.5 charged in count 1 (the “Sherwood Park, the back handing and the nose bleed”), the prosecutor acknowledged that there was a conflict in the evidence on the question whether Woodruff suffered a traumatic injury: Musgrove said Woodruff’s nose did not bleed but Woodruff said it did. The prosecutor argued: “[W]hat’s interesting, you have these two women who’s [sic] only thing in common is their apparent fear of this man and their friendship and you might think, ‘Well, gee, you know, Kelly Musgrove, she’s just trying to support her friend.’ Well, not really. [¶] She’s telling you what she saw…. She doesn’t know whether it helps or benefits her, she directly undercuts Count 1. Frankly, I mean, there’s no traumatic injury then it is a lesser included offense, and I want to make it very, very clear. The People are not asking for the lesser included offenses at all. It’s the defense.” (Italics added.)
Defense counsel had argued during his summation: “[I]f there was no traumatic injury, that … element of that offense does [not] exist and you can’t find that if there’s a lesser included offense of spousal battery or assault. If you think that Mr. Rudolph is out of line, those would be more appropriate charges.”
Defense counsel objected that the prosecutor “clearly indicated … to the jury that the lesser included … offense instructions were requested by the defense.” He asked the court to instruct the jury that all of the instructions come from the court. The court instructed the jury: “All the instructions are approved by the Court and it’s the Court’s final decision on which instructions [are] to be given and not the attorneys, and also remind you that argument is not evidence.” Defendant was acquitted of count 1.
2. Collusion with Defense Counsel to Present False Testimony
The prosecutor argued as follows regarding the inconsistencies between the prosecution witnesses. “Kelly Musgrove, Officer Plunkett, Michelle Woodruff, they’re just coming in and telling you to the best of their recollection what happened. That’s all. And how do we know that? Because they make mistakes. [¶] They’re not planning their testimony ahead of time. If you remember, Officer Plunkett couldn’t recall, didn’t recall that he perceived slurred speech. [¶] … [¶] Kelly Musgrove … [s]he doesn’t even remember what she told Officer Plunkett that day when he came minutes after this event happened….” (Italics added.)
Defense counsel objected that the prosecutor “indicated that we are planning our testimony saying that her witnesses didn’t plan their testimony suggesting we plan our testimony. There’s no evidence of that.” The court observed: “It’s argument. I mean, that’s why it’s not evidence.” The court gave no instruction on this point.
3. Bias Based on Interest in Outcome of Trial
The prosecutor argued as follows that defendant had a motive to lie.“What Mr. Rudolph is telling you is diametrically opposed to what both witnesses observed and Michelle Woodruff, she’s a reliable witness. There’s no indication that her drinking the beer in the motel room in any way interfered with her ability to tell what you [sic] happened to her, and we know that because she’s [sic] essentially for the most part testifies to the same thing that Kelly Musgrove says in terms of what she perceived. Not everything – she didn’t see the swing. She didn’t see which hand, but she tells what you [sic] she remembers and there’s – you can use your common sense. I mean, we’re not talking about somebody here who is falling down drunk at all. [¶] … How do you determine what’s true? [¶] By reviewing the evidence, by talking about how it was presented and what was said. You take into consideration your perceptions of the witnesses and what you know about it. Do they have a bias or an interest to lie? Mr. Rudolph does. Do they have prior felony convictions? [¶] Yes. Mr. Rudoph does.” (Italics added.)
Defense counsel objected that it was improper for the prosecutor to argue that a defendant has a bias to lie because he is the defendant. Again, the trial court observed that it was argument, and declined to instruct on the point.
B. General Principles
A defendant may not complain on appeal that the prosecutor has committed misconduct during argument unless the defendant made a timely and specific objection and request for admonition or curative instruction or both. A defendant will be excused from the necessity of objection and/or request for admonition if either would be futile or would not have cured the harm caused by the misconduct. (People v. Hill (1998) 17 Cal.4th 800, 820-821 (Hill).)
“The applicable federal and state standards regarding prosecutorial misconduct are well established. A prosecutor’s ... intemperate behavior violates the federal Constitution when it comprises a pattern of conduct so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.” (People v. Smithey (1999) 20 Cal.4th 936, 960 (Smithey), internal quotation marks omitted.) “ ‘[I]t is improper for the prosecutor to misstate the law generally [citation], and particularly to attempt to absolve the prosecution from its prima facie obligation to overcome reasonable doubt on all elements.’ ” (Hill, supra, 17 Cal.4th at pp. 829-830.) “ ‘[W]hen the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.’ ” (Smithey, atp. 960.) “In conducting this inquiry, we ‘do not lightly infer’ that the jury drew the most damaging rather than the least damaging meaning from the prosecutor’s statements.” (People v. Frye, supra, 18 Cal.4th at p. 970.) With these principles in mind, we now turn to the parties’ arguments.
C. Analysis
As a preliminary matter, the Attorney General argues that defendant’s failure to make contemporaneous objections waives his claims on appeal, citing People v. Carter (2005) 36 Cal.4th 1114, 1204, where our Supreme Court deemed seven of eight claims forfeited on appeal because “defense counsel did not object when the comments were made.” However, that case does not indicate when, in relation to the comments, the objections were lodged. The general rule is that the objection must be “timely” and in our view the objections and requests for admonitions here were sufficiently close in time to the challenged comments that, if the court had given the requested admonitions, they would have been effective. We therefore deem the objections timely in this case and review defendant’s claims of misconduct on their merits.
Here, we need not decide whether the prosecutor’s argument with respect to the lesser included offense instructions constituted misconduct, because the record demonstrates that the trial court’s admonition was effective in dispelling any possible prejudice from the prosecutor’s argument: defendant was acquitted of the charge to which the lesser included offense instructions pertained. Therefore, he has no cause for complaint on appeal.
With respect to the prosecutor’s argument that the witnesses did not plan their testimony ahead of time, “we ‘do not lightly infer’ that the jury drew the most damaging rather than the least damaging meaning from the prosecutor’s statements.” (People v. Frye, supra, 18 Cal.4th at p. 970.) We see no reasonable likelihood that the jury would have understood the prosecutor’s comments as asking the jury to infer that, unlike the prosecution witnesses, defendant not only did plan his testimony, but also colluded to present false testimony with defense counsel. In context, the comments did no more than attempt to explain how Woodruff, Musgrove and Officer Plunkett could be telling the truth and yet not agree with each other in every particular. We reject defendant’s argument that the prosecutor’s innocuous comments accused defendant of fabricating evidence and disparaged defense counsel’s integrity.
Finally, we find no misconduct in the prosecutor’s comment asking the jury to consider defendant’s interest in the outcome of the trial on the question of his credibility. Defendant himself acknowledges that “it is proper to point to the defendant’s interest in the outcome as affecting his credibility.” (Reagan v. United States (1895) 157 U.S. 301, 305-306 (Reagan).) In Reagan, the high court observed: “The jury properly consider [the defendant’s] manner of testifying, the inherent probabilities of his story, the amount and character of the contradictory testimony, the nature and extent of his interest in the result of the trial, and the impeaching evidence, in determining how much of credence he is entitled to. [¶] … The fact that he is a defendant does not condemn him as unworthy of belief, but at the same time it creates an interest greater than that of any other witness, and to that extent affects the question of credibility.” (Id. at p. 305, italics added.) No error occurred.
III. Cumulative Prejudice
Defendant next argues that the denial of his mistrial motion together with the separate instances of misconduct by the prosecutor cumulatively prejudiced him. Inasmuch as we find no misconduct, and no abuse of discretion in the denial of the mistrial motion, there was also no prejudice.
IV. Denial of Romero Motion
Defendant contends that the trial court’s denial of his Romero motion to strike his prior conviction was an abuse of discretion. He argues that the court improperly (1) relied on its view that defendant had perjured himself at trial and (2) made defendant’s recidivism an overriding factor in its analysis. In addition, defendant asserts the court erred by not considering the factors in aggravation and mitigation set forth in California Rules of Court 4.421 and 4.423, save for the injury in this case, upon which the court incorrectly speculated. We disagree.
A. Factual Background
Prior to sentencing, the defense filed a written motion asking the trial court to exercise its discretion pursuant to section 1385 to strike all of his prior felony convictions. These consisted of a conviction for violation of section 288, subdivision (a) in 1997 and a conviction for violation of Health and Safety Code section 11351 in 1986. In the motion, defendant argued that the court should strike the prior convictions because (1) the lewd act conviction had occurred nine years before the current conviction and was therefore “stale” and (2) defendant had been free of criminal conduct since his release from custody three years earlier. He argued that defendant’s criminal record could not be singularly dispositive on the question whether to set aside the prior “strike” conviction, and that defendant’s record was not as bad as the records of the defendants who had received relief in People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968 (Alvarez) and People v. Bishop (1997) 56 Cal.App.4th 1245.
The prosecutor filed a written response. In it, she argued that the interests of justice would not be served by striking defendant’s prior convictions because of the seriousness of his prior offense, the aggravated nature of his present offense, and defendant’s future dangerousness. Specifically, she noted that defendant was sentenced to prison for three years for orally copulating a seven-year-old boy who he enticed to his apartment with video games. The prosecutor’s motion stated that defendant had used force to gain the child’s compliance by threatening to “cut his dick off” if he ever told; that according to the victim’s mother, many neighborhood boys went to defendant’s apartment to play video games; that the victim reported defendant had orally copulated him, and he had orally copulated defendant, numerous times, and that the defendant had shown him pictures of adults orally copulating each other. After defendant moved away, the child told his mother that he was worried he would not go to heaven and God would not forgive him because the upstairs neighbor, Keith, used to “suck his dick.” When he moved, defendant had stored his belongings with the victim’s mother, and among them were numerous drawings of oral copulation, one of which had been signed by defendant. The prosecutor noted that defendant had never admitted culpability or expressed remorse; he told the probation officer that the boy was lying.
The prosecutor referred the court to the probation report for a list of defendant’s drug, theft and violence convictions of which the 1997 strike conviction was the culmination.
The prosecutor also described the circumstances of the current offense, arguing that “after attempting to woo the victim back with the purchase of alcohol, he used considerable force to injure her causing a large laceration on her forehead and a remaining scar. Although defendant claims that the victim herself ran into his bag … the degree of injury indicates otherwise. The independent witness also indicated otherwise.” She also noted that the victim had “related a pattern of abuse centering around the defendant’s desire that she move back in with him.” Although she wanted the beer, she did not want to “return to the home they once shared. … She struck him on the face to emphasize her point … out of fear” of him. She also noted that defendant testified that “her strike to his person was of no consequence or injury to him” yet he “used considerable force to strike out at her in the face” and “left her bleeding.”
Finally, the prosecutor referenced defendant’s prior misdemeanor convictions for assault by means of force likely to produce great bodily injury and resisting arrest, a felony drug conviction for which defendant was originally placed on probation but eventually was sentenced to prison as a result of a probation violation, and four separate parole violations on the lewd act conviction. Thus, the prosecutor argued, defendant’s prior strike conviction and current offense were part of a “pattern of using violence…. [Defendant] is not an individual of the character or background that is contemplated for the application of the discretionary leniency available to the court through this motion.”
The probation report indicated that defendant is 49 years old, his parents are deceased and he has four siblings. He did not finish high school but earned a G.E.D. in 1989 and appeared to be of average intelligence. He is currently single, but had been briefly married in the 1970’s and has a 30-year-old daughter. He had never served in the military. For the past five years he had been working as a self-employed bicycle repairman, and before that he had 20 years of experience working in construction. Defendant reported that he was in good health, drank three or four beers a month and did not have an alcohol problem. He said he smoked marijuana a few times per month and had used cocaine in the 1980’s. He had been using methamphetamine since he was 13 years old and injected approximately $10 worth of that drug three or four times per week. He considered himself a “functioning addict.” The drug use did not affect his life, however, and he did not consider it a problem. He had never been in a drug treatment program, but would consider entering one. The report also noted that prior to the offense, defendant and the victim had been living in his van.
The probation report listed five aggravating factors: (1) the crime involved great violence, great bodily harm, threat of bodily harm or other acts disclosing a high degree of cruelty, viciousness or callousness (Cal. Rules of Court, rule 4.421(a)(1)); (2) the victim was particularly vulnerable because she was hit by a beer bottle during an argument with defendant (id., rule 4.421(a)(3)); (3) defendant’s adult convictions are numerous or of increasing seriousness (id., rule 4.421(b)(2)); (4) he served two prior prison terms (id., rule 4.421(b)(3)); and (5) his prior performance on probation and parole was unsatisfactory (id., rule 4.421(b)(5)).
At the September 12, 2006 hearing on the motion, the court heard further argument. Defense counsel indicated he was “prepared to submit it on the motion at this time.” The prosecutor reiterated the points made in her response. The trial court denied the motion, stating: “[The] Court did hear the trial in this matter. Mr. Rudolph does have the offense for which he’s here with the strike. For that offense there were four parole violations. He was discharged at the maximum time that he could have done. Another further act of violence, could have been very serious injury involved here. And the jury didn’t believe you, Mr. Rudolph, your story, and so [the] Court can consider that, and I didn’t believe your story either. And I find that there is a danger of reoffending, and Mr. Rudolph does not fall outside the scope of the strike law.”
The court then turned to sentencing, indicating that it had read and considered the probation report, and solicited recommendations from the attorneys. Defense counsel argued that the probation report had omitted two relevant factors in mitigation, that defendant was provoked by the victim, in that she did hit him first, and that defendant’s daily drug use should be considered a mental condition that influenced his behavior, not amounting to a defense. The court added those two factors in mitigation. The court listened to further argument on the weight to be given the various factors in mitigation and aggravation and ruled as follows: “It’s a close call as to whether it’s a midterm case or an upper term case. … [¶] For violation Section 273.5(a) …, the defendant is committed to Department of Corrections for the upper term of four years. Justifying the upper term, the Court finds that there were factors in aggravation, that the crime involved great violence, great bodily harm, threat of great bodily harm, or other acts resulting in a high degree of cruelty and callousness. It appears that the victim was particularly vulnerable, and that she was struck with a beer bottle during an argument with the defendant. The defendant’s prior convictions as an adult are numerous, or of increasing seriousness. The defendant has served two prior prison terms. The defendant’s prior performance on probation and parole was unsatisfactory. And finds factors in mitigation[,] that there was some provocation by the victim[,] were minimal, a slap; and the defendant, Mr. Rudolph, does have a problem with drugs that might be close to a conditional [sic], though he, himself denies that. That justifies in the mind of the Court the upper term of four years pursuant to section 1170.12(c)…. This will be doubled because of strike allegations.” No objection to the court’s statement of reasons was made by the defense. The court imposed an additional consecutive year for the prior prison term, stayed sentence on the assault conviction, awarded credits and imposed fees and fines.
B. General Principles
In People v. Carmony (2004) 33 Cal.4th 367 (Carmony I), our Supreme Court recently summarized the law applicable to review of a ruling on a Romero motion. “ ‘A court’s discretionary decision to dismiss or to strike a sentencing allegation under section 1385’ is review able for abuse of discretion.” (Carmony I, at p. 373.) “In reviewing for abuse of discretion, we are guided by two fundamental precepts. First, ‘ “[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.” ’ [Citations.] Second, a ‘ “decision will not be reversed merely because reasonable people might disagree. ‘An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.’ ” ’ [Citations.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.” (Carmony I, at pp. 376-377.) As the court further explained: “ ‘[T]he Three Strikes law does not offer a discretionary sentencing choice, as do other sentencing laws, but establishes a sentencing requirement to be applied in every case where the defendant has at least one qualifying strike, unless the sentencing court ‘conclud[es] that an exception to the scheme should be made because, for articulable reasons which can withstand scrutiny for abuse, this defendant should be treated as though he actually fell outside the Three Strikes scheme.’ ” (Id. at p. 377.) With these principles in mind, we address defendant’s arguments.
C. Analysis
1. Perjury
Relying on People v. Howard (1993) 17 Cal.App.4th 999 (Howard), defendant argues that the trial court erroneously relied on perjury as a factor in denying his Romero motion because it did not find that every element of the crime of perjury had been proven. We disagree.
“A trial court’s conclusion that a defendant has committed perjury may be considered as one fact to be considered in fixing punishment as it bears on defendant’s character and prospects for rehabilitation.” (People v. Redmond (1981) 29 Cal.3d 904, 913.) “The commission of perjury is of obvious relevance in this regard, because it reflects on a defendant’s criminal history, on her willingness to accept the commands of the law and the authority of the court, and on her character in general.” (United States v. Dunnigan (1993) 507 U.S. 87, 94 (Dunnigan).) In Howard, the Court of Appeal held that “when imposing an aggravated sentence on the ground the defendant committed perjury at trial, the sentencing court is constitutionally required to make on-the-record findings as to all the elements of a perjury violation.” (Howard, supra, 17 Cal.App.4th at p. 1001.) Howard found that the trial court had failed to make the requisite express findings, but deemed the error harmless beyond a reasonable doubt because, given the conflicting testimony at trial, “the court’s own conclusion that there was perjury … could only have been based on a finding that Howard had been untruthful. There was no other basis for rejecting his testimony.” (Id. at p. 1005.)
The Howard court interpreted Dunnigan as requiring this result as a matter of constitutional imperative in order to protect the defendant’s right to testify. (Howard, supra, 17 Cal.App.4th at p. 1004.) Dunnigan, however, makes clear that the defendant never argued that the requirement of stating perjury findings was constitutionally based. The Dunnigan court summarily rejected the hypothetical constitutional arguments that increasing a sentence because of perjury (1) interferes with the right to testify, (“for we have held on a number of occasions that a defendant’s right to testify does not include a right to commit perjury”) and (2) distorts the decision whether to testify or remain silent. (Dunnigan, supra, 507 U.S. at pp. 95-96.)
In People v. Middleton (1997) 52 Cal.App.4th 19, 35-36 (disapproved on other grounds in People v. Gonzalez (2003) 31 Cal.4th 745, 752), the defendant complained that the trial court’s decision to impose consecutive rather than concurrent sentences was flawed because it had relied on the defendant’s perceived perjury at trial without making the express findings required by Howard. Citing People v. Scott (1994) 9 Cal.4th 331, the Middleton court found that defendant had waived the claim because he had not objected on that basis when the court stated that it was imposing consecutive sentences because the defendant had “ ‘lied to the court and the jury.’ ” (People v. Middleton, at p. 35.)
All of these cases involved discretionary sentencing choices that otherwise required a statement of reasons and resulted in the imposition of an aggravated or enhanced sentence. (People v. Redmond, supra, 29 Cal.3d 904 [upper term]; People v. Howard, supra, 17 Cal.App.4th 999 [same]; Dunnigan, supra, 507 U.S. 87 [upward adjustment of sentence by two levels]; People v. Middleton, supra, 52 Cal.App.4th 19 [consecutive sentences].) However, as we have previously noted, “ ‘the Three Strikes law does not offer a discretionary sentencing choice, as do other sentencing laws, but establishes a sentencing requirement to be applied in every case where the defendant has at least one qualifying strike, unless the sentencing court “conclud[es] that an exception to the scheme should be made because, for articulable reasons which can withstand scrutiny for abuse, this defendant should be treated as though he actually fell outside the Three Strikes scheme.” ’ ” (Carmony I, supra, 33 Cal.4th at p. 377.) Moreover, “section 1385, subdivision (a), requires trial courts to state reasons for granting a motion to strike [citations], but not for declining to strike a strike.” (People v. Zichwic (2001) 94 Cal.App.4th 944, 960.) Here, the court did not aggravate or enhance defendant’s sentence when it decided that defendant did not fall outside the Three Strikes law. The court was not required to state its reasons for maintaining the status quo although, having chosen to do so, it was required to rely on legitimate reasons. Case law establishes that a trial court may legitimately rely on the defendant’s perceived untruthfulness at trial as a basis for drawing negative inferences about his “character and prospects for rehabilitation.” (People v. Redmond, supra, 29 Cal.3d at p. 913.) In light of these considerations, it is our view that Howard does not require the court to make express findings on the elements of perjury when it declines to strike a prior conviction on a Romero motion on the stated ground that neither the jury nor the court believed defendant’s testimony.
Even if there were such a requirement, we are convinced that defendant has waived it here. Dunnigan itself did not impose the requirement of express findings in every case where the court cites the defendant’s untruthfulness as reason for making a discretionary sentencing choice. Instead, it stated that such findings should be made “if a defendant objects to a sentence enhancement resulting from [defendant’s] trial testimony.” (Dunnigan, supra, 507 U.S. at p. 95.) Likewise, our Supreme Court has held that the failure to adequately state the reasons for a sentencing choice is the type of error that is waived on appeal if not brought to the trial court’s attention in the first instance. (People v. Scott, supra, 9 Cal.4th 331; People v. Gonzalez, supra, 31 Cal.4th 745 .) Here, defendant did not object below and the claim is waived.
Finally, any assumed error was harmless beyond a reasonable doubt. Defendant argues that the jury might have rejected his testimony for reasons other than his lack of veracity; for example, the jury might have believed in defendant’s need to defend himself, but found he used excessive force. Both self-defense instructions and accident or misfortune instructions were given, but defendant denied that he was afraid of Woodruff or that her earlier blows had hurt or bothered him. Instead, the trial testimony presented two mutually exclusive scenarios: either defendant intentionally hit his former girlfriend on the head with a beer bottle wrapped in a paper bag during an argument, with enough force to cause a two and one-half inch laceration, or she charged him, and the bagged bottle hit her accidentally, when he raised his arms to ward off a blow. There is no question that the trial court’s finding was based on defendant’s untruthfulness. If Woodruff and Musgrove were telling the truth, the defendant was not; excessive force was not the issue. Here, as in Howard, “[t]here was no other basis for rejecting his testimony.” (Howard, supra, 17 Cal.App.4th at p. 1005.)
2. Recidivism
Next, defendant argues that the trial court improperly made recidivism the overriding consideration in denying his motion. He cites People v. Carmony (2005) 127 Cal.App.4th 1066 (Carmony II) for the proposition that “[r]elying on past offenses to justify imposition of an enhanced sentence for the current offense, violates the federal double jeopardy clause which prohibits successive punishment for the same offense.” Carmony II did not so hold. Carmony II held only that the imposition of a 25-year-to-life sentence for a technical violation of the sex offender registration law – a sentence that was over eight times as long as the term that would otherwise have been imposed for a violation of that law – constituted cruel and unusual punishment in that case. In fact, the Carmony II court acknowledged that, as a general matter, double jeopardy was not violated by the imposition of a more severe sentence for a recidivist than for a first time offender. “Since the current offense is a repetitive one, the Legislature may impose stiffer penalties by treating the prior convictions as factors in aggravation.” (Carmony II, at p. 1079.) Here, defendant did not receive a 25-years-to-life sentence and his crime was not a minor technical violation of the law. Double jeopardy was not violated by the court’s refusal to strike his prior conviction.
Defendant also cites Alvarez, supra, 14 Cal.4th 968, for the proposition that, in ruling on a Romero motion, the court may not make the defendant’s recidivist status “singularly dispositive” because to do so “removes from the court’s consideration the nature of the instant offense, whether the appellant will receive an unjust sentence of that offense in light of his recidivism, and the balance between the accused’s constitutional rights and the interests of society.” Alvarez did not involve a Romero motion to strike a prior conviction pursuant to section 1385. It involved only the question of whether a trial court’s discretion to reduce a felony to a misdemeanor, pursuant to section 17, subdivision (b), survives the Three Strikes law. The Court held that it did survive and, with respect to a trial court’s exercise of the discretion to reduce a felony to a misdemeanor the court stated: “While a defendant’s recidivist status is undeniably relevant, it is not singularly dispositive.” (Alvarez, at p. 973.)
On the other hand, where a trial court’s exercise of its limited discretion to strike a prior conviction is concerned, the court looks “ ‘within the scheme in question, as informed by generally applicable sentencing principles....’ [Citation.] … ‘[N]o weight whatsoever may be given to factors extrinsic to the [Three Strikes] scheme’ and … ‘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.’ ” (People v. Wallace (2004) 33 Cal.4th 738, 747-748.) In this case, the trial court had before it the attorneys’ written memoranda of law, the probation report, oral arguments of counsel and its recollection of the trial testimony. We presume the court considered all that it had before it in reaching its decision that defendant’s background, character, prospects, and present and past serious felony convictions did not bring him outside the Three Strikes law. Defendant has not demonstrated otherwise, and we reject defendant’s argument that Alvarez or Carmony II control here.
3. Aggravating and Mitigating Factors
Relying on the appellate court’s advice to the trial court, in People v. Cluff (2001) 87 Cal.App.4th 991, 1004, that on remand for a new Romero motion, it “should consider” the aggravating and mitigating factors listed in the rules of court “in exercising its discretion to strike one or more of the prior convictions,” defendant argues that the trial court here abused its discretion in denying his Romero motion by failing to “consider the factors in aggravation and mitigation set forth in California Rules of Court rules 4.421 and 4.423, with the exception that the court incorrectly speculated upon the injury involved in this case.” We disagree.
Defendant acknowledges that the court did consider the rules of court in sentencing defendant to the upper term, but claims it did not do so in ruling on the Romero motion. We reject that factual premise. On September 12, 2006, the court held one hearing comprised of two parts. The court first heard and ruled on the Romero motion and then proceeded to sentencing. There is no basis in the record for concluding that the court did not read the probation report or the parties’ memoranda prior to the hearing on the Romero motion. The prosecutor’s memorandum specifically referenced the probation report. The probation report was the only document before the court that addressed the particulars of his background and prospects, such as his past employment, education, family and drug use. The court stated that it had read and considered the probation report. We presume the court read it, and considered it, prior to the commencement of the hearing, on both questions before it.
It is true that the probation report did not reference mitigating factors. After the Romero motion was denied, defense counsel asked the court to consider two mitigating factors on the length of the sentence and the court did so. Defense counsel did not, however, ask the court to consider these or any other mitigating factors in connection with the Romero motion. In our view, he may not now complain that the court should have considered matters that were not properly brought to its attention. (People v. Scott, supra, 9 Cal.4th 331.) Similarly, defendant did not object below to the reasons articulated by the trial court for finding that the current offense was an aggravated one. He may not attack those reasons in this appeal. (Ibid.) Finally, on these facts, the court could reasonably infer that the injury to the victim’s head could have been worse than it turned out to be.
In sum, defendant’s prior conviction placed him squarely within the parameters of the Three Strikes law. The burden was on him to demonstrate that he fell outside those parameters. The trial court considered all the matters that were brought to its attention. Having done so, the court concluded that that defendant did not fall outside the ambit of the Three Strikes law. That conclusion was not irrational or arbitrary on these facts, nor was it premised on improper considerations. Our review is deferential. The trial court’s denial of defendant’s Romero motion was not an abuse of discretion.
V. Imposition of Upper Term
As noted above, the court gave the following reasons for its selection of the aggravated term: “[T]he Court finds that ... the crime involved great violence, great bodily harm, threat of great bodily harm, or other acts resulting in a high degree of cruelty and callousness. It appears that the victim was particularly vulnerable, and that she was struck with a beer bottle during an argument with the defendant. The defendant’s prior convictions as an adult are numerous, or of increasing seriousness. The defendant has served two prior prison terms. The defendant’s prior performance on probation and parole was unsatisfactory.”
Defendant argued in his opening and reply briefs that his upper term sentence violated his Sixth Amendment right to a jury trial because it was based on judge-found facts. (Apprendi v. New Jersey (2000) 530 U.S. 466; Blakely v. Washington (2004) 542 U.S. 296; United States v. Booker (2005) 543 U.S. 220; Cunningham v. California (2007) __ U.S. __ [127 S.Ct. 856].) The Attorney General responded that the sentence survived Cunningham because the court also relied on facts that were encompassed by the “recidivism exception” to the Apprendi line of cases, first recognized in Almendarez-Torres v. United States (1998) 523 U.S. 224. In response, defendant argued that defendant could not be sentenced to the upper term and to a section 667.5 enhancement based on the same prior conviction for committing a lewd act, because to do so would violated section 1170, subdivision (b)’s proscription against double punishment.
After briefing in this case was completed, our Supreme Court decided People v. Black (2007) 41 Cal.4th 799 (Black II) and People v. Sandoval (2007) 41 Cal.4th 825. We therefore asked the parties to submit letter briefs on the application of those two new cases to the question whether the sentence in this case is unconstitutional. Relying on Black II, the Attorney General argues that no error occurred because the trial court relied on the fact of a prior conviction and related concepts, such as a finding that the convictions are numerous and of increasing seriousness. Defendant maintains that his sentence violates the Sixth Amendment, marshalling a number of arguments that have been either implicitly or explicitly rejected by our Supreme Court. (I.e., Almendarez-Torres does not establish a recidivism exception; Black II is contrary to and an unreasonable application of Cunningham; application of a “reformed DSL” to him violates due process, ex post facto principles and equal protection.) However, we are bound by Black II and Sandoval. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455)
In Black II, our Supreme Court held that “imposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (Black II, supra, 41 Cal.4th at p. 816.) Black II defined “record of prior convictions” to include the fact that the defendant’s prior convictions are numerous or of increasing seriousness, and specifically rejected the argument that a jury must decide those facts. Citing People v. Thomas (2001) 91 Cal.App.4th 212, 221-222 and People v. McGee (2006) 38 Cal.4th 682, 700-703, our Supreme Court stated that defendant read the prior conviction exception “too narrowly.” (Black II, at p. 819.) “The determinations whether a defendant has suffered prior convictions, and whether those convictions are ‘numerous or of increasing seriousness’ (Cal. Rules of Court, rule 4.421(b)(2)), require consideration of only the number, dates, and offenses of the prior convictions alleged. The relative seriousness of these alleged convictions may be determined simply by reference to the range of punishment provided by statute for each offense. This type of determination is ‘quite different from the resolution of issues submitted to a jury, and is one more typically and appropriately undertaken by a court.’ ” (Ibid.)
Black II is dispositive of defendant’s claim. Here, the trial court relied on the fact that defendant’s prior convictions were numerous, or of increasing seriousness. It also relied on the fact that defendant had served two prior prison terms and that his prior performance on probation and parole was unsatisfactory. Because these factors are related to recidivism, defendant’s sentence is constitutional. We therefore do not reach defendant’s claims that the jury did not find the conduct-related factors which the court also cited. We also reject defendant’s claim that the rule against dual use of facts was violated here. In addition to the conviction for lewd conduct which supported the enhancement under section 667.5, defendant had a prior conviction for violation of Health and Safety Code section 11351. This latter conviction separately supports the aggravated term.
VI. Limitation on Credits
Defendant argues that the court miscalculated his conduct credits, and that he should have received 70 days of conduct credits instead of 28. Defendant argues that the court erroneously limited his conduct credits to 15 percent in accordance with sections 2933.1, subdivision (a) and 667.5, subdivision (c)(8). The Attorney General agrees that defendant is entitled to 70 days of conduct credits, but posits that the court erroneously applied the 20 percent limitation found in 1170.12, subdivision (a)(5), apparently in reliance on the probation report’s recommendation. We agree with the Attorney General that it appears the court erroneously concluded that section 1170.12, subdivision (a)(5) applied to defendant’s presentence credits. People v. Thomas (1999) 21 Cal.4th 1122 holds otherwise. Applying the standard formula for arriving at credit determinations (People v. Caceres (1997) 52 Cal.App.4th 106, 110), we also agree with the parties that defendant was entitled to 70 days of conduct credits on his 141 days of actual time served. We accept the Attorney General’s concession that the abstract of judgment should be so modified.
CONCLUSION
The trial court did not abuse its discretion in denying defendant’s mistrial motion. The prosecutor did not commit misconduct. No cumulative prejudice appears. The court did not abuse its discretion in denying defendant’s Romero motion. Defendant’s upper term sentence is constitutional. The court incorrectly calculated defendant’s conduct credits.
DISPOSITION
The judgment is modified to reflect that defendant is entitled to 70 days of conduct credit. As modified, the judgment is affirmed. The trial court is directed to correct the abstract of judgment accordingly.
WE CONCUR: Bamattre-Manoukian, Acting P.J., Mihara, J.