Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Fresno County No. F06909334, Gary D. Hoff, Judge.
Patricia Ihara, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Brian Alvarez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Ardaiz, P.J.
INTRODUCTION
Dayson Wright appeals from a judgment of 25 years to life for conspiracy to commit identity theft under the three strikes law. For the following reasons, we affirm.
Appellant has been referred to in the record as “Dayson Dalmarco Wright” and “Dayson Dalmarco Wright.”
STATEMENT OF THE CASE
On April 23, 2007, the Fresno County District Attorney filed a five-count felony information charging appellant and Nicole Owens with conspiracy to commit identity theft in count one, (Pen. Code, § 182, subd. (a)(1)); identity theft in counts two and five (§ 530.5, subd. (a)); fraudulent acquisition of access card information in count three (§ 484e, subd. (d)); and forgery in count four (§ 475, subd. (a)). The information further alleged that appellant was previously convicted of two strike convictions under the three strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and that he served a prison term within five years prior (§ 667.5, subd. (b)).
All further section citations are to the Penal Code unless otherwise indicated.
On April 25, 2007, appellant pled not guilty to all allegations.
On July 30, 2007, appellant’s bifurcated joint trial with Nicole Owens commenced and culminated on August 10, 2007, when the jury found him guilty on count one, but found him not guilty on the remaining counts. The jury was unable to return verdicts on the lesser included offenses in counts two, three, and five, and the court declared a mistrial as to these lesser offenses.
On September 10, 2007, the trial court sentenced appellant to a prison term of 25 years to life for count one, plus one year for the prior prison term allegation.
On September 26, 2007, appellant filed a timely notice of appeal.
FACTS
The prosecution contended that appellant and Nicole Owens were part of an identity theft operation based upon evidence that was seized in an apartment occupied by both defendants. Appellant contended that he was temporarily in the apartment and had slept on a couch in the apartment after having a fight with his wife, that he had nothing to do with Owens’s illicit activities, and that he was wrongly accused of the crimes. Owens likewise contended that appellant was not part of her operation.
Prosecution case
On December 5, 2006, the six officers and a sergeant assigned to the Fresno Police Department’s Parole Apprehension Team went to an apartment to locate and arrest appellant. Fresno Detective Andre Benson knocked on the door, and Nicole Owens answered. When the officers asked for appellant, she lied and told them he was not present. After questioning, Owens admitted that appellant was in the bathroom. Detective Benson commanded appellant to come out of the bathroom, and he complied. The officers saw certain incriminating evidence in plain view and proceeded to conduct a search of the apartment. On a computer desk in the single bedroom, officers found several types of identification cards for people other than appellant and Owens. Appellant’s identification card was found among these items. Suspecting fraud or identity theft, Detective Benson contacted detectives with the financial crimes unit.
Detective Gregory Imirian, a member of the financial crimes unit, arrived at the apartment and met with Detective Benson. Detective Imirian identified the following items in the apartment that he believed was consistent with identify theft: counterfeit driver’s licenses, a computer scanner, a color printer, a laminator, and “butterfly” laminating envelopes, a digital camera, a stolen credit card, small passport-type photographs of Owens and other unknown individuals, and several small scalpel-type knives and blades.
The police found counterfeit identification cards bearing the photographs of appellant and Nicole Owens, but in the names of others. For example, they found a counterfeit driver’s license bearing Owens’s photograph, but in the name of Michelle Wheelock. The officers also located several false identification cards bearing Owens’s photograph, but with Michelle Wheelock’s personal identifying information. These cards were found in the bedroom. In the kitchen, the officers found a counterfeit driver’s license bearing appellant’s photograph, but in the name of Joseph Beck. There was also a valid credit card in Beck’s name located with the counterfeit driver’s license.
Officers also found several valid California driver’s licenses in the bedroom, including licenses belonging to Bobdrickus Clark, Jessica Johnson, and Jennifer Damont. A valid California identification card issued to Seloa Barajas Montez and an expired driver’s license belonging to Genice Harris were also located in the bedroom. An Aetna medical insurance card and a California medical benefits card for Jesus Villareal were found in the kitchen.
The officers also located paperwork in the bedroom, bearing the names, dates of birth, social security numbers, driver’s license numbers, and other personal information for Michelle Entrocaso, Mark Antony Martino, Michael Jackson, and Roy Edward Bryan. Printed copies of California Department of Motor Vehicles (DMV) seals were found in the bedroom.
Enlarged photocopied checks for Michelle Wheelock and Morgan Duffner also were found on the computer desk in the bedroom. The computer was loaded with a “CheckSoft” program. Detective Imirian testified that this legal program can be used by forgers to create fraudulent checks. Check stock or stationary for printing checks was found next to the computer.
Detective Imirian later questioned Owens. Owens told the detective that she created the counterfeit driver’s licenses for others to assist them in passing forged or fraudulent checks. In return, Owens received a portion of the proceeds. She explained that she was given the personal data information for Michelle Wheelock and Morgan Duffner from a computer “hacker friend.” She received the valid driver’s licenses from another friend who wanted “fake ID’s made.”
Bobdrickus Clark testified that his wallet containing his California identification card was stolen from his wife’s car around November 23, 2006. Clark did not know appellant and Owens, and he did not give them permission to possess his identification card. Clark kept his recently-deceased mother’s identification cards in his wallet for “sentimental reasons” because his mother did not like to take pictures of herself. Clark’s mother was Genice Harris.
A forensic examination of the hard drive from the computer in the bedroom revealed a Check Designer program and a file containing data on Michelle Wheelock and a Wells Fargo Bank checking account. There were also scanned images of checks bearing Michelle Wheelock’s name and signature. Several images of DMV seals of the type found on driver’s licenses also were found in the hard drive. The images were initially scanned onto the computer in October 2006 and last accessed on December 3, 2006. The police also found a file on the computer named “Dayson’s folder” which contained a holographic image of the back of a driver’s license, DMV seals, and a blank driver’s license template. Counterfeit driver’s license images also were found in other files on the hard drive.
A DMV manager confirmed the seized driver’s license bearing Michelle Wheelock’s name was fraudulent because the license number was registered to another driver. Likewise, the driver’s license bearing Joseph Beck’s name was fraudulent because the number was registered to someone else.
Defense
Appellant did not testify in his own defense. Instead, he relied on Owens’s testimony that he was not involved in any identity theft activities, that he did not have a key to the bedroom, and that he was not romantically involved with Owens.
Owens also testified that she told Detective Imirian that “it was my stuff and that [appellant] didn’t even know that it [w]as in the house.” Owens claimed that “Jaime,” a friend, brought the “stuff” to Owens’s apartment as a way for Owens to make money if Owens was interested because Owens had been out of work for a couple of months and was about to be evicted. Owens testified that she never used, or planned to use any of the false identification cards, checks, or credit card. She planned to return the items to Jaime, or to throw them away if Jaime did not come back.
According to Owens, Detective Imirian was “more or less accusing [her] of stuff and trying to get [her] to say certain things” about an identity theft operation. Owens claimed “[t]he majority of the stuff that he said in the report and stuff was blown out of proportion or twisted around and taken out of context.” She denied telling the detective that she agreed to take a portion of the proceeds from fraud. She also denied selling or making any fake identification cards. Instead, her friend Jaime showed her “how to do that stuff.” During some of the time that Jaime was using the computer and showing Owens, Owens was over helping neighbors with some stuff.
When asked about the paperwork with other people’s personal identification information, Owens testified “I did have an ex-boyfriend who used to be involved in that type of stuff. I would assume he left it there. But I don’t know whether it was him or another friend that may have left it behind at my house.” Owens claimed that she was not romantically involved with appellant. She knew him “for about a month or two before he stayed at [her] house.” She claimed appellant “wasn’t aware of anything.”
Owens claimed her friend Jaime made the false identification cards, including the one bearing appellant’s photo and Joseph Beck’s name. According to Owens, Jaime may have used Dayson’s photograph because Owens could not pass as Joseph Beck. When Owens saw that Jaime used appellant’s photograph, she told Jaime that she did not want appellant involved. With respect to the valid Target credit card in Beck’s name, Jaime “had brought that over.” Owens maintained appellant did not have access to her bedroom; he slept on the couch. She had carried appellant’s identification card when she took him to the hospital several days earlier and had left it with her purse in her bedroom when she returned home.
Rebuttal
Detective Imirian testified that Owens “openly admitted to making the counterfeit drivers [sic] licenses.…” Owens did say that friends had brought licenses to the house, but Owens refused to identify her friends that were involved in the activity. Owens never mentioned “Jaime” or that “Jaime” brought over the fraudulent identification cards during her interview.
According to a forensic computer examiner, an image of a California driver’s license, California seal, and DMV hologram was found in a folder named “Dayson’s folder,” created on August 25, 2006.
Sub-rebuttal
Owens testified that she let Jaime use her computer “sometime in August.”
DISCUSSION
1.
Ineffective Assistance of Counsel
On appeal, Wright contends that he was denied his Sixth Amendment right to counsel because his trial counsel failed to object to inadmissible hearsay testimony that fraudulent checks were actually used on the same date of the police investigation because “[t]hat testimony filled a critical gap in the prosecution’s case.” According to Wright, the inadmissible hearsay discredited Owens’s testimony that she decided not to participate in an identity theft operation, which in turn discredited her testimony that appellant was not involved. Wright also contends that his trial counsel’s belated attempt to exclude the inadmissible hearsay testimony was ineffective because the trial court’s admonishment to the jury about the inadmissible hearsay was ambiguous. In his supplemental opening brief, Wright further contends that there was ineffective assistance of counsel when trial counsel failed to object to testimony by Detective Imirian that it was a crime to possess another person’s valid credit card without that person’s permission under section 484e, subdivision (d), to counterfeit a state seal under section 472, and to possess a counterfeit driver’s license under section 470b because this testimony was irrelevant and inadmissible lay opinion.
In order to prevail on a claim for ineffective assistance of counsel, Wright must make two showings. First, he must show that counsel’s representation fell below an objective standard for reasonableness under prevailing professional norms. (Strickland v. Washington (1984) 466 U.S. 668, 687-88; People v. Gray (2006) 37 Cal.4th 168, 206-207.) Second, Wright must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result would have been more favorable to the defendant. (Strickland v. Washington, supra, 466 U.S. at p. 687; People v. Kelly (1992) 1 Cal.4th 495, 519-520.) Here, Wright cannot prevail on his ineffective assistance of counsel because there was no prejudice.
With respect to the inadmissible hearsay testimony that a counterfeit check was passed on the same date as the police investigation, there was no prejudice resulting from the failure to object to that testimony because appellant could be convicted of conspiracy to commit identity theft pursuant to section 530.5, subdivision (a) even without the use of the counterfeited checks. To be convicted of conspiracy, the prosecution must prove that appellant and Owens had the specific intent to agree to commit identity theft, as well as the specific intent to commit the elements of section 530.5, subdivision (a), and one or both of them committed an overt act in furtherance of the conspiracy. (People v. Morante (1999) 20 Cal.4th 403, 416.) Section 530.5, subdivision (a) prohibits the willful obtainment and use for unlawful purposes of personal identifying information. This Court has held that one can violate section 530.5, subdivision (a), without having an intent to defraud. (People v. Hagedorn (2005) 127 Cal.App.4th 734, 741.) Here, there was substantial evidence to support the jury’s finding that appellant and Owens agreed to commit identity theft and intended to willfully obtain personal identifying information and use that information for an unlawful purpose. Appellant’s picture was on a counterfeit driver’s license that bore the name of another person. Appellant’s identification card was found in Owens’s bedroom. The bedroom contained a computer that was used to create fraudulent checks, and that computer had a file called “Dayson’s folder.” Personal identifying information belonging to other people was also located in the bedroom and kitchen. From this evidence, the jury could reasonably infer that appellant and Owens agreed to commit identity theft, that they intended to willfully obtain personal identifying information, and that one of them committed an overt act in furtherance of the conspiracy – here, the actual manufacturing of the counterfeit driver’s licenses with their pictures but bearing the names of others. Whether a counterfeited check was actually used is not a necessary requirement to prove the conspiracy charge. Moreover, the inadmissible hearsay testimony did not directly implicate appellant or Owens as someone else passed the counterfeited checks since appellant and Owens had been arrested by the date of the police investigation. Thus, any error in failing to object to inadmissible hearsay testimony that a counterfeited check was actually passed was not prejudicial.
With respect to the inadmissible lay opinion on what constitutes a crime, while that testimony is potentially irrelevant, there was no prejudice because the jury was properly instructed on the elements of the crimes charged. Specifically, with respect to the conspiracy count, the jury was instructed that it could find appellant guilty if it found that “[o]ne of the defendants, or an uncharged co-participant committed the alleged overt act of obtaining personal information of other persons and used the information to create false identification documents or to create counterfeit checks.” Thus, the jury was not instructed that it could find appellant guilty of conspiracy based upon an alleged overt act of mere possession of counterfeited materials.
2.
Sufficiency of Evidence of Prior Strikes
Wright next contends that the trial court’s findings on the prior strike convictions must be reversed because it was based on “inadmissible hearsay evidence from a probation report.”
The strike convictions were decided by a court trial. To prove the prior strikes, the prosecutor presented the court with a 1991 probation report and a section 969, subdivision (b) package containing certified copies of a chronological history, an abstract of judgment, two fingerprint cards, and photographs. The abstract of judgment indicates appellant was convicted of two counts of “PC 245(a)(1)” “ADW.” At sentencing, the trial court stated: “Although the court did receive during the bifurcated court trial on the priors prior probation officers’ reports, the 969B [sic] package in and of itself, which the court also received in evidence at that court trial sufficiently established that the defendant’s prior assaults were assaults with deadly weapons and not merely assaults by means of force likely to produce great bodily injury, and therefore, each of his felony assaults … are strike priors.”
While Wright admits that an abstract of judgment is admissible to prove the nature of the offenses, see People v. Banuelos (2005) 130 Cal.App.4th 601, 606, he contends that the notation “ADW” is not sufficient to prove that appellant committed assault with a deadly weapon as opposed to assault by another means likely to produce great bodily injury. This is crucial because the three strikes law counts a prior conviction as a strike only if it is a violent felony or a serious felony. (See § 667.) For section 245, subdivision (a) violations, only an assault with a deadly weapon is considered a serious felony, and thus a strike offense. (People v. Delgado (2008) 43 Cal.4th 1059, 1065 (Delgado).) The People respond that the abstract of judgment is sufficient to establish that the section 245, subdivision (a)(1) violations were with deadly weapons, and that those portions of the probation report that did not consist of defendant’s statements were admissible to supplement the abstract of judgment. We agree that the abstract of judgment was sufficient in and of itself to support the trial court’s findings that appellant suffered two prior strike convictions.
In Delgado, the California Supreme Court held that an abstract of judgment with the notation “Asslt w DWpn” was sufficient for a trial court to find that the defendant committed a serious felony, and thus a strike violation. (Delgado, supra, 43 Cal.4th at p. 1065.) Here, the abstract of judgment containing the notation “ADW” was sufficient for a trial court to find that defendant committed the serious felony of assault with a deadly weapon. Wright contends that People v. Williams (1996) 50 Cal.App.4th 1405, supports his argument that the notation “ADW” was too vague, but People v. Williams is distinguishable from the present case. In People v. Williams, this Court held that a fingerprint card that designated a prior conviction as “ADW on P/O” was not sufficient to support a finding of a strike conviction because there was no reasonable basis to conclude that the Department of Corrections employee who made the designation knew more about the underlying conviction than the abstract of judgment that only stated “245(b) .. Ass Pea.Ofc” without reference to whether a deadly weapon was used. (People v. Williams, supra, 50 Cal.App.4th at p. 1415.) However, this Court specifically noted that “the trial court’s inference that the fingerprint card notation ‘ADW’ was a shorthand reference to ‘assault with a deadly weapon’ appears reasonable.” (Ibid.) Here, the abstract of judgment stated “ADW,” and the trial court properly conclude that it meant “assault with a deadly weapon.”
Wright also contends that Delgado is distinguishable because the standard of review in Delgado was sufficiency of the evidence whereas the standard of review in this case is whether there is a reasonable probability that appellant would have had a more favorable verdict had the trial court not considered the inadmissible evidence. However, the trial court stated that the section 969, subdivision (b) package was sufficient in and of itself for the trial court to determine that the prior section 245, subdivision (a)(1) violations were strike violations. Thus, even under the standard of review advocated by Wright, it was not reasonably probable that he would have had a more favorable sentence. Therefore, we reject appellant’s claim that the trial court erred in finding that his two prior section 245, subdivision (a)(1) convictions were strikes.
3.
Sentencing
Next, Wright contends that the trial court abused its discretion in declining to strike his serious felony conviction allegations because “the decision was not in conformity with the ‘spirit’ of the law.”
Section 1385 permits a trial court to exercise its discretion and dismiss a prior strike conviction if the dismissal is in the furtherance of justice. (§ 1385(c); People v. Williams (1998) 17 Cal.4th 148, 158 (Williams).) “[A] court’s failure to dismiss or strike a prior conviction allegation is subject to review under the deferential abuse of discretion standard.” (People v. Carmony (2004) 33 Cal.4th 367, 374 (Carmony); People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 531 (Romero).) A court abuses its discretion if the ruling in question “‘falls outside the bounds of reason’” under applicable law and the relevant facts. (Williams, supra, 17 Cal.4th at p. 162.)
Here, the trial court declined to strike appellant’s prior serious felony conviction allegations. During the sentencing hearing, the trial court stated the following:
“I have considered the Romero motion. I would note that there has been a substantial period of time from [the dates of the prior serious felony convictions to] today’s date. Going back to both of those convictions, I would note that other than those crimes of violence, the defendant’s criminal history does not establish any significant crimes of violence except for 243(d) offense in 2005. His other criminal history involves driving on a suspended license and drug and forgery matters, some minor assaultive conduct as a juvenile, but mostly theft-related offenses. I would note that while the defendant did apparently for a substantial period of time from the early nineties to 1999 avoid major convictions or arrests, he has not been crime free since his last strike. He has had the misdemeanor offenses. But what’s more troubling to the court is the fact that he had a forgery conviction in 2004. In that particular case he had the strikes alleged and pursuant to the court’s discretion in that case[,] the court struck the strike priors, sentenced him as if he had no prior significant criminal history and committed him to the department of corrections for, I believe, the aggravated term of three years when the court had as an option the ability to sentence him to 25-to-life. Notwithstanding that discretion by the court, when the defendant paroled from that matter within three to four months, he’s involved in the current felony offense for which the jury convicted him of. While he demonstrated his ability to do well for an extended time at one point, he does, in his distant past, have the serious assaultive conduct, and he has in the recent past a forgery offense where he was given an opportunity to avoid a significant and substantial amount of time in custody and committed the new offense while on parole, and therefore, the court does not find that he comes within the meaning and spirit of the court’s discretion under Romero as a person who is deserving of having either the strike priors stricken at this point in time, and in exercising [its] discretion, the court opts not to strike either of those strikes.”
The record thus shows that the trial court considered the relevant facts and decided not to strike the prior strike convictions because appellant was recently given a lenient sentence but did not take advantage of that leniency. This decision was not outside the bounds of reason. Thus, we reject appellant’s claim that the trial court’s decision to not dismiss the prior strike convictions was not in conformity with the spirit of the law.
4.
Wright further contends that the three strikes law, as applied to his case, violates the state and federal proscription against cruel and/or unusual punishment. We disagree.
“Cruel and unusual punishment is prohibited by the Eighth Amendment to the United States Constitution and article I, section 17 of the California Constitution. Punishment is cruel and unusual if it is so disproportionate to the crime committed that it shocks the conscience and offends fundamental notions of human dignity.” (People v. Mantanez (2002) 98 Cal.App.4th 354, 358, fns. omitted.) There is “a three-point analysis for the determination [of] whether a sentence is cruel and unusual: (1) the nature of the offense and the offender, with particular regard to the degree of danger which both present to society; (2) a comparison of the challenged penalty with the punishment prescribed in the same jurisdiction for other more serious offenses [also called the intrajurisdictional analysis]; and (3) a comparison of the challenged penalty with the punishment prescribed for the same offense in other jurisdictions [also called the interjurisdictional analysis]. [Citation.] It is not cruel and unusual punishment to enhance the penalty for a crime because the defendant is a recidivist [citation] as long as the ultimate punishment, all facts considered, is not disproportionate to the crime. [Citations.]” (Id. at p. 359.) When examining whether a punishment is cruel and unusual under the Eighth Amendment, if the “defendant’s sentence does not give rise to an inference of gross disproportionality, we need not conduct an intrajurisdictional and interjurisdictional analysis.” (People v. Romero (2002) 99 Cal.App.4th 1418, 1428.) Similarly, when evaluated under the California Constitution, the intrajurisdictional analysis “is inapposite to three strikes sentencing because it is a defendant’s ‘recidivism in combination with his current crimes that places him under the three strikes law. Because the Legislature may constitutionally enact statutes imposing more severe punishment for habitual criminals, it is illogical to compare [defendant’s] punishment for his “offense,” which includes his recidivist behavior, to the punishment of others who have committed more serious crimes, but have not qualified as repeat felons.’ [Citation.]” (People v. Cline (1998) 60 Cal.App.4th 1327, 1338.) With respect to the interjurisdictional analysis, the fact that California’s three strikes law “is among the most extreme does not compel the conclusion that it is unconstitutionally cruel or unusual. This state constitutional consideration does not require California to march in lockstep with other states in fashioning a penal code. It does not require ‘conforming our Penal Code to the “majority rule” or the least common denominator of penalties nationwide.’ [Citation.] Otherwise, California could never take the toughest stance against repeat offenders or any other type of criminal conduct.” (People v. Martinez (1999) 71 Cal.App.4th 1502, 1516.)
In examining the first prong of the In re Lynch(1972) 8 Cal.3d 410 analysis, this Court “‘consider[s] not only the offense in the abstract--i.e., as defined by the Legislature--but also “the facts of the crime in question.” [Citation.] This entails an examination of the totality of the circumstances surrounding the commission of the offense in the case at bar, including such factors as its motive, the way it was committed, the extent of the defendant’s involvement, and the consequences of his acts.’ [Citations.] To assess the nature of the offender, we look at defendant’s ‘individual culpability in light of his age, prior criminality, personal characteristics, and state of mind.’ [Citation.]” (People v. Rhodes (2005) 126 Cal.App.4th 1374, 1390.)
In People v. Cooper (1996) 43 Cal.App.4th 815, 825-826, this Court held that a 25-year-to-life sentence for a third strike criminal defendant found guilty of being an ex-felon in possession of a firearm does not constitute cruel and unusual punishment under the California Constitution. In People v. Romero, supra, 99 Cal.App.4th at page 1422, the Court of Appeal for the Fourth District concluded that a 25-year-to-life sentence for felony petty theft under the three strikes law is not cruel and unusual. In Ewing v. California (2003) 538 U.S. 11, 30-31, the United States Supreme Court held a sentence of 25 years to life in prison imposed for the offense of felony grand theft under the three strikes law is not grossly disproportionate and therefore does not violate the Eighth Amendment prohibition on cruel and unusual punishment. However, a recidivist sentence under the three strikes law for a nonviolent technical violation of a regulatory law is cruel and unusual punishment. (People v. Carmony (2005) 127 Cal.App.4th 1066.)
Here, the record shows that appellant was convicted of felony conspiracy to commit identity theft. Although a nonviolent offense, it is not a harmless technical violation of a regulatory law. Rather, felony conspiracy to commit identity theft is comparable to a conviction for being an ex-felon in possession of a firearm or for felony theft. Appellant’s age does not assist him as he was 37 years old at the time of sentencing. The record also shows that appellant is a recidivist with a lengthy criminal history, beginning in 1984 when a wardship petition for felony theft was sustained. He committed a burglary and driving without a license in 1985. In 1989, he was convicted of aggravated assault and possession of a controlled substance in separate incidents. He was granted felony probation by the Madera County Superior Court, but he reoffended in 1990 by committing another aggravated assault in Fresno. Discharged from parole in 1996, he reoffended in 1999 and 2002 with misdemeanor offenses. In 2004, he was convicted of forgery as a third strike offender, but the trial court struck the allegations and sentenced him to three years in prison. In 2005, he was convicted of battery with serious bodily injury. In 2006, he was convicted of driving on a suspended license. He was released on parole in July 2006, and within several months he was arrested for the instant offense. His criminal history shows that he was violent in the past and had recently committed a crime of violence, battery with serious bodily injury, in 2005. It also shows that appellant was becoming involved in fraud crimes. Finally, his criminal history showed that he has not taken advantage of the leniency that was afforded to him a few years prior to committing the instant offense. Thus, we conclude that his sentence of 25-years-to-life for conspiracy to commit identity theft is not so grossly disproportionate that it constitutes cruel and unusual punishment.
5.
Finally, Wright contends in his supplemental opening brief that the trial court violated his constitutional right not to be held twice in jeopardy for the same offense when the trial court found his prior conviction allegations true. However, the state and federal double jeopardy provisions are not violated by retrial of a prior conviction allegation. (People v. Monge (1997) 16 Cal.4th 826, 837; Monge v. California (1998) 524 U.S. 721; Almendariz-Torres v. United States (1998) 523 U.S. 224.) As these cases have not been overruled, they are binding precedents and thus, we reject appellant’s claim. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 452.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: Wiseman, J. Gomes, J.