Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County, No. RIF136920, Jeffrey Prevost, Judge
Kathleen Woods Novoa, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton and Michael T. Murphy, Deputy Attorneys General, for Plaintiff and Respondent.
RICHLI, Acting P.J.
A jury found defendant and appellant Danny Ray Shaffer guilty of battery causing serious bodily injury (Pen. Code, § 243, subd. (d)) (count 1); assault with force likely to produce great bodily injury (§ 245, subd. (a)(1)) (count 2); and simple assault (§ 240) as a lesser included offense of assault with a deadly weapon (§ 245, subd. (a)(1)) (count 3). The jury further found true that in the commission of counts 1 and 2, defendant personally inflicted great bodily injury (§§ 667, 1192.7, subd. (c)(8), & 12022.7, subd. (a)) and that in the commission of count 3, defendant personally used a deadly weapon, to wit, a car (§§ 667, 1192.7, subd. (c)). In a bifurcated proceeding, the trial court found true that defendant had suffered three prior prison terms (§ 667.5, subd. (b)), one prior serious felony conviction (§ 667, subd. (a)), and one prior serious and violent felony conviction (§§ 667, subds. (c) & (e), 1170.12, subd. (c)). Defendant was sentenced to a total term of 14 years in state prison.
All future statutory references are to the Penal Code unless otherwise stated.
The trial court later struck one of the prior prison term allegations.
On appeal, defendant contends (1) there was insufficient evidence to support the jury’s finding that he had inflicted great bodily injury on the victim; (2) the trial court erred in refusing to instruct the jury on the defense of mistake of fact; and (3) the trial court abused its discretion in denying his motion to dismiss his prior strike conviction. We reject these contentions and affirm the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
In an apparent “road rage” incident between defendant and the victim, defendant punched the victim in the jaw, causing the victim to suffer a broken jaw. This incident occurred on May 21, 2007, in the City of Corona when the victim, Steven Spangler, driving a motorcycle, stopped close behind a car driven by defendant at a red light. Defendant appeared to be upset and gestured with his arms. When the light turned green, he went forward through the intersection, and Spangler followed. As Spangler passed defendant’s car on the left, he saw defendant yelling at him. Spangler “flipped [defendant] off” and drove on.
While stopped at another red light, defendant exited his vehicle and began walking towards Spangler. Spangler got off his motorcycle. Defendant told Spangler, “I’m a fucking skinhead. I’m going to kick your ass.” Spangler responded, “So what? What’s that supposed to mean to me?” Defendant then punched Spangler in the jaw with a closed fist. Spangler “stumbled back a little bit” and tried to hit defendant back in self-defense but failed. Defendant tried to punch Spangler a second time but missed. Spangler swung back at defendant but missed again.
Once the light turned green, defendant returned to his car and yelled at Spangler that he was going to kill him and run over his motorcycle. Defendant got in his car and then accelerated his car toward Spangler, who was standing at the back of his motorcycle. Defendant’s car grazed Spangler’s leg and the back of his motorcycle. Defendant proceeded to hit a car that was in front of the motorcycle; he then drove away.
Spangler did not make any gestures to provoke defendant or challenge defendant to a fight. He did not have a gun on him or display a gun during the altercation. In fact, Spangler did not own a gun and explained that he was prohibited from owning a gun because he was a felon. No gun was found on Spangler’s person or motorcycle or near the scene.
Police and paramedics were called to the scene. Spangler’s jaw “swelled up, ” and it continued to swell. Although his jaw hurt and he was feeling “[a] lot of pain, ” Spangler refused medical treatment at the scene. Spangler recounted the incident to the police. The interviewing officer believed that Spangler’s speech was “[a] little slurred” and that Spangler was having trouble speaking. Spangler told the officer that his jaw and cheek were sore. The officer did not see any visible injuries.
After speaking with the police, Spangler went to a medical center for treatment where X-rays were taken of his jaw. The X-rays apparently revealed that Spangler had a broken jaw. On June 1, 2007, doctors performed a surgery on Spangler to repair it by inserting “a plate” in his jaw. Spangler spent two days in the hospital and had a scar on the left side of his cheek underneath the jaw line as a result of the surgery.
Susana Prado witnessed the altercation between defendant and Spangler. While she was stopped at the red light, she saw defendant get out of his vehicle and approach Spangler. Defendant appeared to be “upset and aggravated” as he approached Spangler. Prado heard defendant and Spangler arguing and then saw defendant punch Spangler. Spangler responded by trying to hit defendant, but defendant kept pushing Spangler. It appeared to Prado that Spangler was “scared” and “wanted to walk away” from defendant. She did not see Spangler holding a gun or displaying a gun.
Prado also saw defendant accelerate his car toward Spangler and hit Spangler’s motorcycle. She was unsure whether Spangler had been hit by defendant’s vehicle or if he had jumped out of the way. Defendant fled from the scene and, in the process, side-swiped Prado’s vehicle.
Prado followed defendant in her car. After a few blocks, defendant ran from his car and jumped over some fences. Prado drove around the block and found defendant on the other side of some homes. When she caught up to defendant, she approached him and asked him for his information. Defendant initially refused to provide any information but eventually gave her a false name. He asked Prado to not call the police and told her he would take care of “it”; he offered her $500 to get him out of the area.
Defendant testified on his own behalf. He claimed that he hit Spangler in the jaw in self-defense after Spangler first attempted to hit him twice. Defendant further asserted that Spangler displayed a handgun, but defendant was unsure where the gun came from. Defendant then ran back to his car to get away from Spangler. As he drove away, he was watching Spangler and therefore was not paying attention and hit Prado’s car in the process. Defendant acknowledged that Prado had followed him and asserted that he had offered her $500 because he did not have any insurance. He did not realize that he had hit Spangler’s motorcycle and stated that he had fled the scene because Spangler had “pulled a gun” on him.
Kody McIntoch testified on behalf of defendant. McIntoch was the passenger in defendant’s car during the incident. McIntoch stated that he saw Spangler attempt to hit defendant first, and defendant hit back in self-defense. He then saw Spangler reach inside his shirt, and he believed Spangler might be grabbing a gun.
II
DISCUSSION
A. Sufficiency of the Evidence
Defendant was convicted of battery causing serious bodily injury and assault by means of force likely to produce great bodily injury. The jury found true the allegation that he inflicted great bodily injury in the commission of both counts. Defendant contends there was insufficient evidence to support counts 1 and 2 and the great bodily injury enhancement attached to those counts because “the prosecution presented no medical evidence, expert testimony, or other competent evidence to establish an injury... was actually caused by [defendant].” We reject defendant’s argument.
When determining whether the evidence was sufficient to sustain a conviction, “our role on appeal is a limited one.” (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) “[T]he test of whether evidence is sufficient to support a conviction is ‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ [Citations.]” (People v. Holt (1997) 15 Cal.4th 619, 667.) “We draw all reasonable inferences in support of the judgment.” (People v. Wader (1993) 5 Cal.4th 610, 640.) Reversal is not warranted unless it appears “‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’ [Citation.]” (People v. Bolin (1998) 18 Cal.4th 297, 331.)
“‘“Whether the harm resulting to the victim... constitutes great bodily injury is a question of fact for the jury. [Citation.] If there is sufficient evidence to sustain the jury’s finding of great bodily injury, we are bound to accept it, even though the circumstances might reasonably be reconciled with a contrary finding.”’ [Citation.]” (People v. Escobar (1992) 3 Cal.4th 740, 750, fn. omitted (Escobar).)
In Escobar the California Supreme Court disapproved its previous decision in People v. Caudillo (1978) 21 Cal.3d 562. In Caudillo, the court had held that to qualify as great bodily injury, an injury had to be “severe or protracted in nature.” (Caudillo, at p. 588.) The Escobar court, however, concluded “the more general ‘significant or substantial physical injury’ test” was the correct standard: “Clearly, the latter standard contains no specific requirement that the victim suffer ‘permanent, ’ ‘prolonged’ or ‘protracted’ disfigurement, impairment, or loss of bodily function.” (Escobar, supra, 3 Cal.4th at p. 750.)
There are two pre-Escobar decisions involving broken noses. Both affirm that a broken nose can constitute great bodily injury in an appropriate case.
In People v. Villarreal (1985) 173 Cal.App.3d 1136, the victim suffered multiple fractures of the nasal bones and broken teeth, stayed in the hospital five days, and underwent an operation. The court held that, under the circumstances, it was not error to instruct the jury that the injury constituted “‘a substantial and significant physical injury within the meaning of Penal Code section 12022.7.’” (Id. at p. 1139.)
In contrast, People v. Nava (1989) 207 Cal.App.3d 1490 (Nava) held it was error “to instruct the jury that a bone fracture was a significant and substantial injury within the meaning of section 12022.7.” (Id. at p. 1498.) The court distinguished Villarreal on the ground that Villarreal held only that such an instruction was proper under the circumstances of that case. It did not disagree, however, with the “conclusion that a broken bone may be great bodily injury....” (Nava, at p. 1498, italics added.)
In Nava, the victim did not seek medical attention until the day after the evening on which the defendant broke her nose. Her nose was broken in three places, but she had no other facial fractures or related sinus problems and no difficulty breathing. The doctor reset the nose, but surgery was not necessary. The court held: “While a jury could very easily find the harm here to be great bodily injury, a reasonable jury could also find to the contrary.” (Nava, supra, 207 Cal.App.3d at p. 1499, italics added.)
In two post-Escobar decisions, facial injuries involving bone fractures were held to constitute great bodily injury. (People v. Hale (1999) 75 Cal.App.4th 94, 101-102, 108 [split lip, cut under eye, and numerous broken and chipped teeth, requiring stitches, root canal, tooth extraction and bridge work]; In re Cruse (2003) 110 Cal.App.4th 1495, 1497-1498 [broken jaw].) The Cruse court, in fact, did not elaborate on the details of the injury or its treatment; evidently, it considered the fact the jaw was broken to be evidence enough.
The injury in this case was comparable to that in Cruse, and at least comparable in severity to that in Nava. Here, unlike in Nava, defendant’s blow to the victim’s jaw was severe enough that the victim required surgery to insert a plate to remedy the broken jaw. The victim testified that his jaw swelled up. He further stated that he was feeling “[a] lot of pain.” The officer who interviewed the victim believed that Spangler was having trouble speaking. The victim told the officer that his jaw and cheek were sore. Although the victim refused medical treatment at the scene, he went to a medical center that day for treatment, where X-rays were taken. The X-rays revealed that he had a broken jaw, and about 10 days later, doctors performed a surgery on the victim to repair it. The victim spent two days in the hospital and had a scar on his cheek underneath the jaw line.
Further, as noted, Nava was decided before Escobar. If the injury in Nava “could very easily” justify a jury finding of great bodily injury under the more stringent Caudillo standard (Nava, supra, 207 Cal.App.3d at p. 1499), a fortiori a reasonable jury could find the injury in this case satisfied the less stringent Escobar criteria.
Defendant argues there was insufficient evidence to show that defendant had proximately caused the injury to the victim’s jaw. A defendant “personally” inflicts great bodily injury within the meaning of section 12022.7 if he or she “directly perform[s] the act that causes the physical injury to the victim.” (People v. Cole (1982) 31 Cal.3d 568, 579.) Here, there is no question that defendant directly performed the act that caused the injury to the victim by punching the victim in the jaw with a closed fist. The act that caused the injury here, punching the victim in the jaw, was done by defendant in person without the intervention of another. Hence, defendant’s act was a volitional act, and the injuries to the victim occurred as a direct consequence of defendant’s decision to punch the victim in the jaw. Thus, defendant personally inflicted the great bodily injury.
Defendant also asserts that “both the fact of the injury and the causal connection sought to be established by the prosecution was [sic] beyond the grasp of an ordinary layperson, ” and therefore evidence in the form of expert medical testimony was required to prove defendant had “in fact proximately caused a great bodily injury” to the victim. Defendant is mistaken.
To be admissible, expert opinion testimony must be “[r]elated to a subject that is sufficiently beyond common experience” so that the opinion “would assist the trier of fact....” (Evid. Code, § 801, subd. (a).) The jury need not be wholly ignorant of the subject matter of the opinion to justify its admission; even if the jury has some knowledge of the matter, expert opinion may be admitted whenever it would assist the jury. (People v. McDonald (1984) 37 Cal.3d 351, 367, overruled on other grounds in People v. Mendoza (2000) 23 Cal.4th 896, 914.) However, expert opinion testimony is not admissible if it “consists of inferences and conclusions which can be drawn as easily and intelligently by the trier of fact as by the [expert].” (People v. Torres (1995) 33 Cal.App.4th 37, 45.) Here, nothing beyond common experience is needed to understand that a punch to the jaw can cause an injury to the jaw. The victim testified that he sought medical attention on the day of the incident, and an X-ray was performed on his jaw. The X-ray apparently revealed that the victim had suffered a broken jaw, which required surgery to repair. No expert testimony was required to show that defendant’s punch caused the victim to suffer a broken jaw.
Defendant’s arguments to the contrary were credibility questions to be resolved by the trier of fact. In determining whether substantial evidence exists, “we do not reweigh the evidence, resolve conflicts in the evidence, or reevaluate the credibility of witnesses.” (People v. Cortes (1999) 71 Cal.App.4th 62, 71.) In addition, the testimony of a single witness is sufficient to uphold a judgment, even if it is inconsistent or contradicted by other evidence. (People v. Scott (1978) 21 Cal.3d 284, 296.) Only if a witness’s testimony is physically impossible or inherently improbable may it be discounted by the reviewing court. (Ibid.) Defendant does not contend that the victim’s testimony relating to his injury was either physically impossible or inherently improbable. As previously noted, “[i]t is well settled that the determination of great bodily injury is essentially a question of fact, not of law. “‘Whether the harm resulting to the victim... constitutes great bodily injury is a question of fact for the jury. [Citation.] If there is sufficient evidence to sustain the jury’s finding of great bodily injury, we are bound to accept it, even though the circumstances might reasonably be reconciled with a contrary finding.”’ [Citation.]” (Escobar, supra, 3 Cal.4th at p. 750, fn. omitted.)
Viewing the evidence in a light favorable to the judgment, as we must, we conclude there was sufficient evidence to support the jury’s finding that the victim sustained great bodily injury.
B. Failure to Instruct on Mistake of Fact Defense
Defendant next argues that the trial court violated his constitutional rights to due process of law and a fair trial when it refused his request to instruct the jury on the mistake-of-fact defense. This argument fails as well.
The standard jury instruction on the mistake-of-fact defense, Judicial Council of California Criminal Jury Instructions (2006) CALCRIM No. 3406, provides: “The defendant is not guilty of _____ <insert crime[s]> if (he/she) did not have the intent or mental state required to commit the crime because (he/she) [reasonably] did not know a fact or [reasonably and] mistakenly believed a fact. [¶] If the defendant’s conduct would have been lawful under the facts as (he/she) [reasonably] believed them to be, (he/she) did not commit _____ <insert crime[s]>. [¶] If you find that the defendant believed that _____ < insert alleged mistaken fact[s]> [and if you find that belief was reasonable], (he/she) did not have the specific intent or mental state required for _____ <insert crime[s]>. [¶] If you have a reasonable doubt about whether the defendant had the specific intent or mental state required for _____ <insert crime[s]>, you must find (him/her) not guilty of (that crime/those crimes).” The bench notes instruct: “If the defendant is charged with a general intent crime, the trial court must instruct with the bracketed language requiring that defendant’s belief be both actual and reasonable. [¶] If the intent at issue is specific criminal intent, do not use the bracketed language requiring the belief to be reasonable.” (Bench notes to CALCRIM No. 3406 (2008 ed.) p. 991.)
CALCRIM No. 3406 advises the jury that a defendant is not guilty of a crime if he did not have the intent or mental state required to commit the crime because he made a mistake of fact. (See also § 26, subd. (3).) However, a trial court is not required to give CALCRIM No. 3406 if it is not supported by substantial evidence. (People v. Pollock (2004) 32 Cal.4th 1153, 1176; People v. Bolden (2002) 29 Cal.4th 515, 558.) There is no duty to instruct on a defense if the evidence of that defense is minimal or insubstantial. (People v. Barnett (1998) 17 Cal.4th 1044, 1145.)
It appears that defendant incorrectly asserts that an instruction on a defense must be given upon request without regard to whether it is supported by substantial evidence.
Here, no substantial evidence supported a finding that defendant punched Spangler in the jaw because he made a mistake of fact. Defendant argues that he punched Spangler because he believed Spangler had a gun. However, Spangler denied having a gun; Prado, an independent witness, denied seeing Spangler with a gun; and police found no gun after searching Spangler and the surrounding area. Moreover, defendant’s conduct following his assault upon Spangler was arguably inconsistent with his claim that Spangler had a gun. After defendant returned to his car, he accelerated toward Spangler and his motorcycle, rather than drive away from Spangler. There essentially was no independent evidence, despite defendant’s self-serving statement, that Spangler had or displayed a gun. From our review of the record, we conclude there was not substantial evidence to trigger the trial court’s obligation to give a mistake-of-fact instruction.
In any event, any error in failing to give CALCRIM No. 3406 was plainly harmless, because there is no reasonable probability that the jury would have reached a more favorable verdict if the instruction had been given. (People v. Watson (1956) 46 Cal.2d 818, 836; People v. Russell (2006) 144 Cal.App.4th 1415, 1431 [erroneous failure to instruct on mistake of fact defense is subject to harmless error test set forth in Watson].) The jury necessarily resolved the factual question of whether Spangler had a gun during the altercation adversely to defendant under other, properly given instructions.
In People v. Sedeno (1974) 10 Cal.3d 703 (overruled on another ground in People v. Flannel (1979) 25 Cal.3d 668, 684-685, fn. 12 & in People v. Breverman (1998) 19 Cal.4th 142, 165), the Supreme Court stated: “[I]n some circumstances it is possible to determine that although an instruction [a trial court is required to give] was erroneously omitted, the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions. In such cases the issue should not be deemed to have been removed from the jury’s consideration since it has been resolved in another context, and there can be no prejudice to the defendant since the evidence that would support [such] a finding... has been rejected by the jury.” (Sedeno, at p. 721.) The jury here was instructed with the self-defense instruction pursuant to CALCRIM No. 3470. That instruction sufficiently addressed the issue of whether defendant had a mistaken belief Spangler had a gun. Moreover, defense counsel’s argument to the jury sufficiently covered the topic. (People v. Gutierrez (2002) 28 Cal.4th 1083, 1144.) The jury, however, necessarily rejected defendant’s theory (of mistake of fact or self-defense) that Spangler had a gun. Had the jury found defendant’s self-defense theory to be persuasive, it would not have found that defendant acted with the requisite intent for the battery and assault counts. Because “the factual question posed by the omitted instruction [i.e., CALCRIM No. 3406] was necessarily resolved adversely to [defendant] under other, properly given instructions, ” we conclude the assumed instructional error was not prejudicial. (Sedeno, at p. 721.)
C. Denial of Motion to Strike Prior Conviction
Defendant’s final contention is that the trial court abused its discretion by refusing to strike his prior serious and violent felony conviction pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). We disagree.
In Romero, the Supreme Court held that a trial court has discretion to dismiss three-strikes prior felony conviction allegations under Penal Code section 1385. (Romero, supra, 13 Cal.4th at pp. 529-530.) The touchstone of the analysis is “‘whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.’ [Citation.]” (People v. Carmony (2004) 33 Cal.4th 367, 377.)
“[A] trial court’s refusal or failure to dismiss or strike a prior conviction allegation under section 1385 is subject to review for abuse of discretion.” (People v. Carmony, supra, 33 Cal.4th at p. 375.) “[A] trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.” (Id. at p. 377.)
“Because the circumstances must be ‘extraordinary... by which a career criminal can be deemed to fall outside the spirit of the very scheme within which he squarely falls once he commits a strike as part of a long and continuous criminal record, the continuation of which the law was meant to attack’ [citation], the circumstances where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme must be even more extraordinary.” (People v. Carmony, supra, 33 Cal.4th at p. 378.)
Defendant complains the trial court abused its discretion by failing to consider all relevant circumstances in denying his Romero motion. We reject this contention. There is nothing in the record to indicate the trial court failed to consider and balance the factors outlined above. Moreover, there is a “‘strong presumption’ [citation] that the trial judge properly exercised his discretion in refusing to strike a prior conviction allegation.” (In re Large (2007) 41 Cal.4th 538, 551.) “On appeal the basic rule is that it will be assumed that the trial court impliedly found every fact, necessary to support its ruling, to be true. [Citations.]” (People v. Castaneda (1969) 1 Cal.App.3d 477, 484.) “Absent a showing to the contrary, we presume the trial court fulfilled its duty to make the requisite determination. [Citations.]” (People v. Hennessey (1995) 37 Cal.App.4th 1830, 1836.)
The record here shows that the trial court was aware of its discretion and made an informed decision to not strike defendant’s prior strike conviction. Prior to the sentencing hearing, the People filed a sentencing brief. In that brief, the People pointed out the court’s discretion, the relevant law regarding the factors the court must consider in dismissing a strike, the circumstances of the present and prior convictions, the circumstances relevant to defendant, and why defendant should not be deemed outside the spirit of the three strikes law. At the time of the sentencing hearing, at which defendant represented himself, the court sua sponte entertained a Romero motion and pointed out the factors the court must consider in determining whether to strike a prior strike conviction. The court also noted that the People had addressed those factors in its sentencing brief. After defendant argued his position that the court should exercise its discretion to strike his prior strike conviction, the court declined to strike defendant’s prior strike conviction. The court explained, “While I agree that I think at the time of the incident with Mr. Spangler you were trying to avoid, for the most part, getting into trouble, you just didn’t do the right thing as to that. Given the intervening criminal history since your conviction and release on parole in 1985 to this incident in 2007, you’ve suffered at least two separate convictions resulting in... separate prison commitments. And this incident... was senseless. I think there was some bad blood between you and Mr. Spangler, but I’m going to address it in a different manner once we proceed to sentencing.”
The court noted that this incident was “just above the level of a mutual combat” and utilized that as a circumstance in mitigation in giving defendant the low term.
We cannot conclude the trial court abused its discretion in declining to strike defendant’s prior strike conviction. The relevant considerations supported the trial court’s ruling, and there is nothing in the record to show that the court declined to exercise its discretion on improper reasons or that it failed to consider and balance the relevant factors, including the nature and circumstances of the current offenses and defendant’s personal and criminal background. In fact, the record clearly shows the court was aware of its discretion, aware of the applicable factors a court must consider in dismissing a prior strike, and appropriately applied the factors as outlined above.
Defendant has manifested a persistent inability to conform his conduct to the requirements of the law. His past criminal history is extensive and serious, spanning 15 years, from the time defendant was 20 years of age, and includes such offenses as assault with a deadly weapon, battery, child endangerment, vehicle theft, accessory after the fact, unlawful possession of a firearm, being under the influence of drugs, and false impersonation. Defendant’s criminal history also includes several prison terms and poor performances on probation and parole. In fact, defendant violated the terms of his parole and was returned to state prison on six different occasions.
The court here could not overlook the fact defendant continued to commit serious criminal offenses and violate the terms and conditions of his probation and parole even after repeatedly serving time in prison. His conduct as a whole was a strong indication of his unwillingness or inability to comply with the law. He has shown his continual disregard for the law as evidenced by his continual parole and probation violations and criminal convictions. It is clear from the record that prior rehabilitative efforts have been unsuccessful, and that defendant has not led a crime-free life. All of these factors were relevant to the trial court’s decision under Romero; there is no indication from the record here that the court failed to consider the relevant factors or that it failed to properly balance the relevant factors or that it abused its discretion in determining that, as a flagrant recidivist, defendant was not outside the spirit of the three strikes law. (People v. Carmony, supra, 33 Cal.4th at p. 375, 377-378.)
Thus, given defendant’s continuous criminal history, his numerous parole and probation violations, the seriousness of the past and present offenses, and his lack of meaningful crime-free periods, we cannot say that the trial court abused its discretion when it declined to dismiss defendant’s prior strike conviction.
III
DISPOSITION
The judgment is affirmed.
We concur: KING J.MILLER J.