Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Kelvin D. Filer, Judge. Los Angeles County Super. Ct. No. TA085673.
Richard L. Rubin for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, James William Bilderback II and J. Michael Lehmann, Deputy Attorneys General, for Plaintiff and Respondent.
MANELLA, J.
We affirm Tobias Eugene White’s (appellant’s) conviction for the murder of Nehemiah Moore and the attempted murder of Keenan Riggs. In doing so, we reject his challenges to (1) the admission of evidence from a dog scent discrimination lineup, (2) the denial of his motion for new trial, and (3) his sentence.
PROCEDURAL BACKGROUND
1. Information
White was charged with first degree murder (Pen. Code, § 187) and attempted first degree murder (§§ 187/664). It further was alleged that he personally used a firearm (§ 12022.53, subd. (b)), personally and intentionally discharged a firearm (§ 12022.53, subd. (c)), and personally and intentionally used a firearm causing great bodily injury (§ 12022.53, subd. (d)). It also was alleged that the crime was committed for the benefit of a criminal street gang within the meaning of section 186.22, subdivision (b)(1).
Undesignated statutory citations are to the Penal Code.
2. Pretrial Hearing Pursuant to People v. Kelly.
People v. Kelly (1976) 17 Cal.3d 24 (Kelly).
Prior to trial, the court held a hearing to determine whether evidence from a dog scent discrimination lineup would be admissible. The disputed evidence was scent taken from shell casings found where Moore and Riggs were shot. In a dog scent discrimination lineup, a Labrador retriever named Cooper matched the scent on the casings to White’s scent.
When officers collected evidence at the scene of the shootings, six casings were placed in separate small manila envelopes. Scent pads were made from three casings by wrapping gauze around the casing and holding the gauze there for approximately10 minutes. The gauze was then placed in a Ziploc bag. Detective Jimmie Gates placed the Ziploc bags in an evidence locker for two days and then delivered them to the police crime lab.
To conduct the dog scent identification, Gates and Deputy Sheriff David Castillo placed boxes containing scents of four individuals, including scent collected from White’s arms, in a diamond format. After the scent lineup was set up, Cooper and his handler, Joseph D’Allura, went to the middle of the diamond formation, and D’Allura exposed Cooper to scent from a shell casing. Cooper laid down next to the box that contained White’s scent, indicating that White’s scent matched the scent on the casing. While Cooper was working, Gates and Castillo waited at a picnic table approximately 40 to 50 feet away from the diamond formation. Castillo confirmed that Cooper identified White’s scent.
D’Allura, a civilian canine handler for the Los Angeles Police Department, testified that he had trained Cooper since 2001, and that Cooper had successfully passed a sheriff department certification program in scent discrimination. Cooper’s training included detecting scents from objects that had been burned and exploded. Cooper’s training required him to correctly indicate no match if no matching scent was present. D’Allura was not aware that Cooper had made any mistakes in 171 criminal lineups.
Lawrence Myers, an associate professor at the college of Veterinary Medicine at Auburn University in Alabama who held a Ph.D. in neurophysiology, testified for the defense. Myers testified that “dogs can be used as... forensic[] instrument[s] once we’ve truly established the reliability of particular procedures and particular dog handler teams....” He further agreed that “dogs when properly trained can distinguish between human scents.” Myers acknowledged that another researcher, Adee Schoon, had shown that dogs can match scents in a lineup and had shown 85 percent correct performance in those matchings. He testified that Schoon found “scent-identification lineups involving dogs fall in the category of reliable forensic methods.” Myers stated that he would be willing to testify for the prosecution if he believed correct procedures for a dog scent lineup had been followed. Myers also agreed that a properly trained dog could detect scent despite contaminants. Myers acknowledged that studies showed that human scent was able to withstand extreme heat and pressure.
Myers testified that experts had opined that human scent was unique and, “[f]or practical purposes,” Myers did not dispute that principle because all the scientific studies “done so far indicate that human scent is unique.” Myers himself worked with organizations to establish protocols for dog scent discrimination lineups. He indicated that a gauze pad was a sufficient method to collect scent.
With respect to the specific test that led to White’s scent identification, Myers believed Gates and Castillo were too close and, as a result, Cooper potentially could have received cues from them. Myers found problematic the fact that Gates and Castillo chose where to place the scent instead of throwing a four-sided die to determine the location of the suspect’s scent. In many cases dogs could match scent regardless of how the scent was stored, but Myers worried whether dogs could still reliably match scent as scents age. He also testified that degradation, which always occurred, slowed when scent was refrigerated and he believed the scent should have been frozen.
Myers did not consider a manila envelope to be a sufficient storage container because it was porous. Myers indicated that degradation affected a dog’s ability to discern a scent but did not know if it could lead to a false positive. Myers also was concerned that he could not interpret D’Allura’s training logs and therefore could not assess Cooper’s reliability.
3. Judgment and Sentence
White’s first trial resulted in a deadlocked jury. Following a second trial, a jury convicted White of murder and attempted murder and found true all of the enhancements. The trial court denied White’s motion for a new trial. The trial court sentenced White to a term of 50 years to life in state prison consisting of 25 years-to-life for murder, plus an additional 25 years pursuant to the section 12022.53, subdivision (d) enhancement. The court imposed a concurrent sentence of 40 years-to-life for the attempted murder. White timely appealed.
FACTUAL BACKGROUND
On June 7, 2006 at approximately 6:00 p.m. Gerald Frison, Jr., who was wearing a red T-shirt, along with Moore, Riggs, and three others, were skateboarding near Palmer Street in Compton. An assailant shot Riggs and Moore, and Moore died of the gunshot wound. The only disputed issue in White’s trial was the identity of the assailant.
None of the skateboarders were members of a gang.
1. Prosecution Evidence
Two eyewitnesses identified White. Frison identified White, whom he knew from school where White was in the same class as Frison’s younger brother. Frison identified White from a six-pack, in a live lineup, and in court. The other eyewitness, Jennifer Hernandez, saw the shooting as she was taking a walk. With 60 percent certainty, she identified White’s picture from a six-pack. She did not identify White in court, and she described the shooter as someone shorter than White.
Frison initially told police that he had not seen the shooter before, but later explained that while the shooter looked familiar, Frison was unsure of his identity. When Frison heard White’s name, he realized that he knew him from school. School records confirmed that Frison, Frison’s brother, and appellant attended Augusto Mayo Elementary School at the same time.
When interviewed by appellant’s investigator, Hernandez stated she did not want to get involved and feared retaliation.
Dog scent evidence linked White to a casing found at the scene of the shootings. In addition to the witnesses who testified at the pretrial hearing, Dennis Slavin, a canine handler for the South Pasadena Police Department testified. Slavin explained that canines could detect scent after explosions and that scent survives a wide range of environmental conditions. He opined that scent would survive being fired from a gun. Slavin also testified that the method of storage did not affect a dog’s ability to detect scent and that regardless of whether scent pads were frozen, refrigerated, or stored at room temperature, dogs were able to detect scent. He acknowledged that plastic bags were not the best method of storage because they are porous. According to Slavin, a dog could discriminate scent even if multiple people’s scent were layered on an object. Slavin also testified that human scent survives for a long time both in storage and in the environment.
Detective Richard Sanchez opined that White was an active member of the Santana Bloc Crips gang. Sanchez testified that the Crips were rivals with the Bloods gang, who claimed the color red. Sanchez opined that the shootings of Riggs and Moore were gang related. Anyone wearing the “wrong colors” could be “assaulted” by a gang member.
2. Defense Evidence
White testified in his defense. He did not remember where he was on June 7, 2006, but testified he had no reason to shoot the victims. He testified that although he was once a member of the Santana Bloc Crips, he was no longer a gang member at the time of the shootings. However, White acknowledged that members of the gang shoot people whom they perceive to be members of a rival gang. He also testified that members of the Crips gang often wore blue, and members of the Bloods gang often wore red. White had prior convictions for receiving stolen property, taking a vehicle without the owner’s consent, burglary, and obstructing justice.
Professor Mitchell Eisen testified regarding eyewitness identifications and factors that can affect the reliability of an eyewitness identification, including (1) stress which can lead to difficulty focusing, (2) presence of a weapon which can dominate a person’s attention, (3) length of time of exposure, and (4) unconscious transference of a familiar face with that of the perpetrator.
3. Rebuttal
Evidence countering White’s claim that he was no longer a gang member was introduced during rebuttal. Although White’s girlfriend, Tiffany Woods, testified he was with her at the time of the shooting, her testimony was impeached by prior statements that she did not see White until 8:00 p.m. the night of the shooting. In closing argument, defense counsel acknowledged Wood’s testimony was not credible.
DISCUSSION
White argues (1) the trial court erred in ruling the dog scent evidence was admissible under Kelly, supra, 17 Cal.3d 24; (2) the trial court erred in denying his motion for a new trial, which was based on the prosecutor’s failure to disclose that Frison had a misdemeanor grand theft conviction; (3) the cumulative error was prejudicial; and (4) the 25-years-to life enhancement term pursuant to section 12022.53, subdivision (d) constitutes cruel and/or unusual punishment.
Although we conclude the prosecution should have disclosed Frison’s misdemeanor conviction, we find no other error. Therefore, we need not consider White’s claim of cumulative prejudice. We discuss his remaining contentions seriatim.
1. Appellant Demonstrates No Error in the Admission of Dog Scent Evidence
a. California Law Regarding Dog Scent Discrimination Lineups
“‘In [Kelly, supra,]17 Cal.3d 24..., [the Supreme Court] held that evidence obtained through a new scientific technique may be admitted only after its reliability has been established under a three-pronged test. The first prong requires proof that the technique is generally accepted as reliable in the relevant scientific community. [Citation.] The second prong requires proof that the witness testifying about the technique and its application is a properly qualified expert on the subject. [Citation.] The third prong requires proof that the person performing the test in the particular case used correct scientific procedures. [Citation.]’” (People v. Mitchell (2003) 110 Cal.App.4th 772, 782 (Mitchell).) Kelly serves a “‘“salutary purpose of preventing the jury from being misled by unproven and ultimately unsound scientific methods.” [Citation.]’” (People v. Therrian (2003) 113 Cal.App.4th 609, 615.)
Mitchell, supra, 110 Cal.App.4th at page 775 and People v. Willis (2004) 115 Cal.App.4th 379, 386 (Willis), held that a Kelly hearing was required to determine the admissibility of evidence obtained in a “canine scent identification lineup.” (Mitchell, supra, 110 Cal.App.4th at p. 775.) The Mitchell court found that a “scent transfer unit” was a “novel device used in furtherance of a new technique.” (Id. at p. 789.) The court further expressed concern over the absence of scientific data to explain a dog’s ability to isolate scent from one object and match it with another regardless of the conditions to which the first object had been subjected, the absence of scientific data showing that every person has a unique scent, and the absence of evidence that “a Labrador retriever, or any other dog, [could] be trained to conduct a lineup in which such scents are involved.” (Id. at p. 793.) The Willis court, citing similar concerns, came to the same conclusion, finding that dog scent identification evidence should have been subject to a Kelly hearing.
Mitchell described a scent transfer unit as a device that “extracts scents from an object and transfers the scents to a sterile gauze pad, thus avoiding possible damage to the object from which the scent has been taken.” (Mitchell, supra, 110 Cal.App.4th at p. 779.)
b. The Trial Court, Following a Kelly Hearing, Concluded Evidence from the Dog Scent Discrimination Lineup was Admissible
Following Mitchell, the court below concluded a Kelly hearing was necessary to determine whether the dog scent evidence was admissible. As agreed to by the parties, the trial court reviewed the evidence presented at the Kelly hearing in the first trial. After reviewing the evidence from that hearing and hearing argument from counsel, the trial court found that Myers “doesn’t have a great quarrel with the procedure that was used in terms of whether or not it could be or was reliable. He just thinks it can be improved upon.” The court recognized that Myers testified it would have been better if Gates and Castillo were further away from the lineup when Cooper was released, but emphasized D’Allura did not know the identification of the suspect’s box and there was no communication between D’Allura and the detectives. The court found the “precautions and the care” were sufficient. Although Dr. Myers had suggestions for improving the procedures to avoid contamination, he did not show the procedures used were unreliable. No evidence indicated that Cooper was unreliable. The court also found nothing inherently problematic in the way D’Allura maintained his training logs. It concluded the evidence was admissible, and the defense would have an opportunity to challenge the procedures with “no restrictions.”
c. White Conceded the First Prong of Kelly
In contrast to Mitchell and Willis, here the trial court held a Kelly hearing to determine the admissibility of the dog scent evidence. Also in contrast to Mitchell, there was no question that a Labrador retriever could discriminate scent or that scent is unique.
At the Kelly hearing, defense counsel conceded the first prong of Kelly and expressly acknowledged that “studies have shown that scent is unique, or that no two people have the same scent, and that dogs, when properly trained, can do this work.” Defense counsel informed the trial court that the defense expert would “focus his testimony on prong number three of the Kelly test.” Counsel expected the defense expert to testify that “under specific protocols or conditions it’s possible for dogs to discriminate against the smell of one human versus the smell of another....” After the hearing, defense counsel stated, “[w]e are conceding the first prong of Kelly, but the third prong of Kelly [asks] [‘]were the procedures done correctly here[’]....” Prior to the second trial, counsel reiterated “we are conceding the first prong of Kelly.”
Having conceded the adequacy of the evidence under the first prong of Kelly, appellant may not now raise the issue on appeal. (People v. Alvarez (1996) 14 Cal.4th 155, 186 [“‘It is, of course, “the general rule”’ -- to which we find no exception here -- ‘“that questions relating to the admissibility of evidence will not be reviewed on appeal in the absence of a specific and timely objection in the trial court on the ground sought to be urged on appeal.”’”].) Even if counsel had not expressly conceded this point, Myers testified that dogs when properly trained can distinguish between human scents, and that research showed dog scent lineups were a reliable forensic tool.
d. Kelly’s Second Prong Was Moot After the First Was Conceded
“The second prong [of Kelly] requires that any witness testifying on general acceptance be properly qualified as an expert on the subject.” (People v. Venegas (1998) 18 Cal.4th 47, 78.) The second prong became moot once the first prong was conceded. Stated otherwise, there was no need to call a witness to testify regarding the general acceptance once the technique was already established as reliable. As respondent argues, White’s challenge to D’Allura’s qualification lacks merit because D’Allura’s testimony was not presented to establish the general acceptance of the science underlying scent discrimination. Instead, the underlying acceptance of the method was undisputed.
e. Kelly’s Third Prong was Satisfied
The third prong of Kelly concerns “whether the procedures actually utilized in the case were in compliance with that methodology and technique, as generally accepted by the scientific community.” (People v. Venegas, supra, 18 Cal.4th at p. 78, italics omitted.) “The Kelly test’s third prong does not, of course, cover all derelictions in following the prescribed scientific procedures. Shortcomings such as mislabeling, mixing the wrong ingredients, or failing to follow routine precautions against contamination may well be amenable to evaluation by jurors without the assistance of expert testimony.” (Id. at p. 81.) “Such readily apparent missteps involve ‘the degree of professionalism’ with which otherwise scientifically accepted methodologies are applied in a given case, and so amount only to ‘[c]areless testing affect[ing] the weight of the evidence and not its admissibility’ [citations].” (Ibid.; see also People v. Smith (2003) 107 Cal.App.4th 646, 672 [challenges regarding errors in mixed sample deoxyribonucleic acid analysis directed to weight of evidence, not admissibility, where expert testimony, literature, and case law demonstrated acceptance by scientific community].)
Appellant argues that the procedures employed in the present case were problematic because (1) the shell casings were placed in paper envelopes allowing degradation and possible contamination; (2) the casings were transported with other items allowing contamination; (3) the casings were not frozen; (4) scent degradation could have occurred in the period between the lineup and the collection of the casings; (5) the casings were exposed to heat and combustion when the gun was fired; (6) the lineup was not conducted in a double-blind manner; and (7) Myers could not adequately review D’Allura’s training logs.
“[R]eview of a third-prong determination on the use of correct scientific procedures in the particular case requires deference to the determinations of the trial court.... In reviewing that ruling, the Court of Appeal [is] required to accept the trial court’s resolutions of credibility, choices of reasonable inferences, and factual determinations from conflicting substantial evidence.” (People v. Venegas, supra, 18 Cal.4th at p. 91.)
White’s first five challenges concerning the degradation and possible contamination of scent all concern the “degree of professionalism,” not the methodology accepted by the scientific community. Substantial evidence supports the trial court finding that although there may have been some degradation or contamination of White’s scent, that fact did not show the evidence was unreliable. Even Myers acknowledged that properly trained dogs could detect scents despite the presence of contaminants. During the Kelly hearing, Myers testified that studies had shown scent could withstand extreme heat and pressure. Significantly, Myers did not testify that degradation or contamination could lead to a false positive identification.
Myers’s trial testimony provided additional support for the trial court’s conclusion. He testified that scent is not destroyed even if touched by someone else, and that even if layered with additional scent, an item could still be tested so long as the test was properly conducted. He also testified that although making the scent pads earlier would have been better, they were not useless.
The trial court’s rejection of White’s argument that the procedures were unreliable because they were not conducted in a double-blind manner also was supported by substantial evidence. According to Myers, double-blind “means that absolutely no one in the area [is] able to communicate in any fashion with the test area has any idea what’s going on.” Myers worried that because Castillo and Gates were in sight, the “dog can cue on the people who set it up.” Myers “suggested... that in the future they [Gates and Castillo] use a screen if they can’t go any further.”
There was no dispute that D’Allura was unaware of which box contained White’s scent and therefore could not cue Cooper. That Myers’s recommended procedures were not applied does not show that the method applied was improper. There was no evidence that Gates or Castillo communicated with D’Allura or cued Cooper. At trial, Myers conceded the “diminished... likelihood of a cue” given Gates and Castillo’s distance from the actual test, and acknowledged that cuing was most likely to occur with an owner. In short, the trial court’s finding was sufficiently supported.
White’s final challenge is to the logs D’Allura kept describing his training of Cooper. Myers testified that he was unable to interpret D’Allura’s logs. But that is irrelevant, because D’Allura testified regarding his training of Cooper and was subject to cross-examination. Even Myers acknowledged that the logs “suffice[d] to jog [D’Allura’s] memory of what he did.”
Finally, defense counsel was free to and did argue that potential contamination and degradation, along with the proximity of Gates and Castillo and deficiencies in the training logs, rendered the evidence unreliable. In addition, the jury was instructed that before it could rely on the dog scent evidence there must be “[e]vidence of the dog’s general reliability as a human scent discrimination dog.” In short, White fails to show the court erred in admitting the dog scent evidence.
Defense counsel argued that both Myers and Slavin agreed studies had shown no two people have the same scent and dogs can do scent discrimination work. She argued that the test was not reliable because it was not double-blind and because Cooper could have picked up on some cue from Gates and Castillo. She argued the collection and storage of the scent pads was problematic, and that it was unclear whether Cooper was reliable, especially since Myers could not interpret D’Allura’s training logs.
2. White Demonstrates No Error in The Denial of His New Trial Motion
White argues that the trial court erred in denying his motion for a new trial. He asserts that the prosecutor’s failure to disclose Frison’s misdemeanor conviction was a statutory violation under section 1054 and violated Brady v. Maryland (1963) 373 U.S. 83 (Brady).
a. Factual Background
Defense counsel filed a motion for a new trial on the ground that the prosecution had failed to disclose that Frison had suffered a misdemeanor grand theft conviction. The court found that defense counsel did not have information regarding the prior misdemeanor conviction, but that the conduct underlying the conviction -- Frison’s serving as a “look-out during a shoplifting case at a store” -- was not egregious and would not “have automatically destroyed Mr. Frison’s credibility as a witness in this case.” The court further stated it was not certain it would have admitted the evidence had an Evidence Code section 352 objection been made, and that there was no indication the defense would have been able to locate the witnesses to establish the conduct. The court concluded it was not reasonable to find that even had the defense been provided the information, the jury would have rendered a different result.
b. Analysis
Evidence of Frison’s misdemeanor conviction should have been disclosed. (People v. Santos (1994) 30 Cal.App.4th 169, 178 [federal constitution mandates disclosure of misdemeanor convictions when such information is requested by the defendant and is in the prosecutor’s possession].) Under Brady, supra, 373 U.S. 83, the prosecution must disclose to the defense any evidence that is favorable to the defendant and material on the issue of guilt or punishment. (City of Los Angeles v. Superior Court (2002) 29 Cal.4th 1, 7; see also United States v. Price (9th Cir. 2009) 566 F.3d 900, 911 [under Brady, prosecutor has duty to learn of results of investigation into criminal background of witness and disclose evidence that could have led defendant to discover favorable admissible evidence].) Favorable evidence may include impeachment evidence. (Strickler v. Greene (1999) 527 U.S. 263, 280.)
To show prejudice, a defendant must show there is a reasonable probability that the suppressed evidence would have produced a different verdict. (Strickler v. Greene, supra, 527 U.S. at p. 289.) Here, the trial court found no reasonable probability the evidence would have produced a different verdict. We agree. Appellant has not shown that the nature of the conviction cast doubt on Frison’s ability to recognize appellant as someone he knew from elementary school. In addition, there was another eyewitness, Jennifer Hernandez, who saw the shooting as she was taking a walk. The dog scent evidence corroborated the eyewitnesses as Cooper linked White to the casing found at the scene of the shootings. Although appellant testified in his defense, he provided no alibi, and his own counsel acknowledged that his girlfriend’s testimony providing an alibi was not truthful. Finally, it is uncertain whether the underlying conduct would have been admissible. (People v. Wheeler (1992) 4 Cal.4th 284, 297, fn. 7 [courts must consider whether conduct underlying misdemeanor conviction is admissible under Evid. Code, § 352].) Overall, the failure to disclose Frison’s misdemeanor conviction does not undermine confidence in the judgment. (See People v. Hayes (1992) 3 Cal.App.4th 1238, 1245 [“Failure to disclose relevant impeachment evidence requires [a] reversal only ‘“if the evidence is material in the sense that its suppression undermines confidence in the outcome of the trial.”’”].)
People v. Wheeler, supra, 4 Cal.4th 284 was superseded on another ground by statute as discussed in People v. Duran (2002) 97 Cal.App.4th 1448, 1460.
The cases appellant relies upon are distinguishable. In People v. Martinez (1984) 36 Cal.3d 816, the newly discovered evidence contradicted the sole testimony linking the defendant to the crime. “The prosecution’s case rested entirely on the palm print” which was questioned by the newly discovered evidence. (Id. at p. 822.) Similarly, in United States v. Hinkson (9th Cir. 2008) 526 F.3d 1262, a new trial was warranted where newly discovered evidence showed the prosecution’s star witness to have lied about critical facts. (See id. at pp. 1265, 1298.) People v. Little (1997) 59 Cal.App.4th 426, 429 involved a critical felony conviction, not as here, a misdemeanor conviction, which “is a less forceful indicator of immoral character or dishonesty than is a felony.” (People v. Wheeler, supra, 4 Cal.4th at p. 296.) Finally, People v. Price, supra, 566 F.3d 900 involved the failure to disclose multiple convictions of a key witness with “a lengthy history of run-ins with the [police] that suggests that she has little regard for truth and honesty.” (Id. at p. 903.)
3. Cruel and Unusual Punishment
Appellant argues the imposition of a consecutive firearm enhancement pursuant to section 12022.53, subdivision (d) constitutes cruel and unusual punishment. According to appellant, section 12022.53 fails to “recognize significant gradations of culpability depending on the severity of the current offense, fails to take mitigating factors into consideration, and arbitrarily imposes severe punishment in cases involving criminal use of a gun as compared to the use of other dangerous or deadly weapons.” Section 12022.53, subdivision (d) provides: “Notwithstanding any other provision of law, any person who, in the commission of a felony specified in subdivision (a) [including murder], Section 246, or subdivision (c) or (d) of Section 12034, personally and intentionally discharges a firearm and proximately causes great bodily injury, as defined in Section 12022.7, or death, to any person other than an accomplice, shall be punished by an additional and consecutive term of imprisonment in the state prison for 25 years to life.”
We previously rejected this argument and explained: “Section 12022.53 as a whole represents a careful gradation by the Legislature of the consequences of gun use in the commission of serious crimes. The section is limited, in the first place, to convictions of certain very serious felonies. The statute then sets forth three gradations of punishment based on increasingly serious types and consequences of firearm use in the commission of the designated felonies: 10 years if the defendant merely used a firearm, 20 years if the defendant personally and intentionally discharged it, and 25 years to life if the defendant’s intentional discharge of the firearm proximately caused great bodily injury. Furthermore, the provision in question is an enhancement to the base term for the underlying conviction; a trial court retains flexibility as to fixing the underlying base term....” (People v. Martinez (1999) 76 Cal.App.4th 489, 495, fn. omitted; see also People v. Gonzales (2001) 87 Cal.App.4th 1, 18-19 [finding imposition of enhancement under section 1202253 subdivision (d) did not constitute cruel and unusual punishment].) Section 12022.53 does not facially violate either the state or federal constitution. (Martinez, supra, 76 Cal.App.4th at p. 498.)
DISPOSITION
The judgment is affirmed.
We concur: EPSTEIN, P. J., WILLHITE, J.