P. v. Cumbess

Filed 6/19/07 P. v. Cumbess CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from a judgment of the Superior Court of Los Angeles County. John S. Fisher, Judge. Affirmed with directions.

William L. Heyman, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, John R. Gorey and Stephanie C. Brenan, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________________

INTRODUCTION

Appellant Mark Frederick Cumbess challenges his burglary and receiving stolen property convictions on the grounds of instructional error, insufficiency of the evidence regarding one burglary count, abuse of discretion in refusing to vacate a prior serious felony conviction finding, and sentence disproportionality. We conclude the trial court did not commit prejudicial instructional error or abuse its discretion by denying appellants motion to vacate a prior serious felony conviction finding. Substantial evidence supports appellants burglary conviction. Appellant forfeited his disproportionality claim, but defense counsel did not render ineffective assistance by failing to raise the claim in the trial court.

BACKGROUND AND PROCEDURAL HISTORY

Neighbors observed appellant committing midmorning burglaries of apartments on January 24 and February 16, 2005. On the second occasion, the neighbor called the police soon after seeing appellant leave the apartment. When appellant was later apprehended, he was found in possession of property stolen during the first burglary.

In bifurcated proceedings, the jury convicted appellant of two counts of first degree burglary and one count of receiving stolen property. The jury also found appellant had suffered two prior serious felony convictions within the scope of the Three Strikes law and Penal Code section 667, subdivision (a)(1). The trial court sentenced appellant to prison for 30 years to life.

DISCUSSION

1. The trial court did not err by failing to instruct, sua sponte, with CALCRIM No. 359, and any error in failing to instruct with CALCRIM No. 358 was harmless.

With respect to count two, witness Michael Wilhelms testified that he was in his second floor apartment on the morning of February 16, 2005, when he heard something climbing on some plastic tarps atop of trash bags located outside the apartment building next door. He looked out his bathroom window and saw appellant tearing the screen away from a window on the ground floor in the building next door. Appellant was below Wilhelms, about 20 feet away. Appellant was wearing a white baseball cap, an earring that appeared to be a diamond, an unbuttoned and untucked white dress shirt worn over a jersey with a gold stripe on one side and purple lettering, baggy pants, and dark shoes. At times, Wilhelms observed appellants profile, and at times, he saw his back. At some point, Wilhelms saw appellant put his head and one arm inside the apartment window. Wilhelms shouted, Did you lock yourself out? Appellant appeared startled. He turned in profile and said, Yeah. He then kind of crunched down and turned towards Wilhelms, but did not look up at him. Appellant held that position for several seconds, and then stood up in front of the open window for several more seconds before walking away and out of Wilhelmss field of vision. Wilhelms moved to the balcony of his apartment, from which he could see appellant pacing in the carport area. Eventually, appellant jumped the fence into Wilhelmss apartment complex and sat on a stoop just north of Wilhelmss balcony for 45 seconds or a minute. Appellant then got up and moved quickly up the alleyway between the buildings, jumped a fence, and disappeared from Wilhelmss view.

Wilhelms walked toward the neighboring apartment complex, and as he did so, he saw an unfamiliar car leaving the parking lot. He could not see the driver. The car was a dusty, black, older model with a red license plate, and resembled the one depicted in Peoples Exhibit 2, which was the car appellant was driving when the police detained him. Wilhelms called the police about half an hour after first seeing appellant. He did not mention the car until after a responding police officer told him the police had a possible suspect in custody. When the police took Wilhelms to identify someone, he identified appellant and the car. Wilhelms had obtained a very good look at the face and profile of the man whom he saw attempting to remove the screen, and was able to recognize him. At the time of the identification, appellant was not wearing the baseball cap or the white shirt, but was wearing the same earring, jersey, trousers and shoes. Wilhelms also identified appellant at the preliminary hearing and trial.

Appellant contends his statement, Yeah, obligated the trial court to instruct, sua sponte, with CALCRIM Nos. 358 and 359.^[1]

Even in the absence of a request, a trial court must instruct on general principles of law commonly, closely and openly connected to the facts before the court and necessary for the jurys understanding of the case. (Peoplev.Montoya (1994) 7 Cal.4th 1027, 1047.)

CALCRIM No. 359 has no application to this case, as appellant made no statement that could form the basis of a conviction of any of the charged crimes. He simply said, Yeah, when asked if he had locked himself out of the apartment. This statement did not establish any element of any of the charged crimes. The instruction is the corpus delicti instruction, intended to require independent evidence that a crime occurred and to ensure that the defendant is not convicted of a crime he admitted but that never in fact occurred. (People v. Carpenter (1997) 15 Cal.4th 312, 394.) Appellants one-word statement cannot be construed to be an admission of any crime.

Although CALCRIM No. 358 arguably was applicable, any failure to give this instruction was necessarily harmless. The only statement by defendant was a simple, one-word response, and it was not especially incriminating. Had Wilhelms testified that appellant said, No, Im breaking in, a genuine need for the instruction would have existed. But the actual testimony incriminated appellant through Wilhelmss observations of appellants conduct, not appellants one-word reply to Wilhelmss question. Wilhelmss testimony was uncontradicted, and his observations of appellant provided sufficient evidence required to convict appellant of first degree burglary on count 2. It is not reasonably probable appellant would have obtained a more favorable result if the court had instructed with CALCRIM No. 358. (People v. Watson (1956) 46 Cal.2d 818, 836.)

Appellant argues he was prejudiced because the prosecutors argument made the statement a prominent part[] of the prosecution case as to count 2 . . . . The prosecutor argued that appellants response to Wilhelmss question was a lie. He then argued as follows: Think about why he lied. Because he knows what he was doing. What do his acts tell you he was doing? He was trying to break into the house and, in fact, under the law he committed the crime of burglary even though not a single item was taken . . . . In his closing argument, the prosecutor returned to this point: Finally [Wilhelms] tells you about a conversation he had with that person. He asked that person - - he asked him a question. He asked him whether he had been locked out of his residence. And the person replied yes. [] The person did so because of consciousness of guilt. He knows he was doing something wrong. He knows he was being seen by somebody. So he gives that answer.

The references to the statement in the prosecutors argument were brief and limited in scope. The inferences that the prosecutor argued could be drawn from the statement were obvious and natural. The argument did not make the statement a prominent part of the prosecutions case. The jury was not instructed on consciousness of guilt, which reduced the significance of the prosecutors reference to the concept. The jury was instructed that the attorneys arguments were not evidence (CALCRIM No. 222), that it was required to assess witnesses credibility and could believe all, part, or none of any witnesss testimony (CALCRIM No. 226), and that it should carefully review all of the evidence before concluding that the testimony of a single witness proved a fact (CALCRIM No. 301). Moreover, the remaining evidence establishing appellants commission of this burglary was extremely strong, and the statement was a minor point. In sum, it is not reasonably probable appellant would have obtained a more favorable result if the court had instructed with CALCRIM No. 358.

2. The trial court did not err by giving CALCRIM No. 376.

When appellant was arrested on February 16, 2005, he was wearing a white Lakers jersey. Police searched appellants car and found two tickets to a Clippers game and AMC movie theater passes. Joshua Davis, the victim in the earlier burglary, identified the Lakers jersey and Clippers tickets as items taken from his home on January 24, 2005. He recognized the jersey because it was the same size, color, and style; was a Shaquille ONeal jersey; and bore a slight stain that had not come out through laundering. He recognized the Clippers tickets because they were for the same seats for which Davis had held season tickets for three years. The AMC movie passes were in the same denomination as ones taken from Daviss home on January 24, 2005.

After completion of counsels arguments, the trial court stated it felt it was required to instruct with CALCRIM No. 376. Neither attorney objected and the court gave the instruction.^[2]

Appellant contends the trial court erred by instructing with CALCRIM No. 376 because neither party requested it and the property in question was stolen 23 days before it was found in appellants possession, which he insists could not be deemed recent.

To the extent appellant argues that a trial court cannot give an instruction unless the parties request it or a sua sponte duty requires it, he is incorrect. [A] trial court in a criminal case is requiredwith or without a requestto give correct jury instructions on the general principles of law relevant to issues raised by the evidence. (People v. Mutuma (2006) 144 Cal.App.4th 635, 640.) Penal Code section 1093, subdivision (f) provides, in pertinent part, that At the beginning of the trial or from time to time during the trial, and without any request from either party, the trial judge may give the jury such instructions on the law applicable to the case as the judge may deem necessary for their guidance on hearing the case. Penal Code section 1127 provides additional authority for the court to instruct upon all relevant general principles of law without request: In charging the jury the court may instruct the jury regarding the law applicable to the facts of the case . . . .

CALCRIM No. 376 is a proper instruction. Where a defendant is found in conscious possession of recently stolen property, an inference of guilt is permissible if at least slight corroborating evidence exists in the form of statements or conduct tending to show the defendants guilt. (Peoplev.McFarland (1962) 58 Cal.2d 748, 754.) The jury must determine whether the inference should be drawn in light of all the evidence. (Id. at p. 755.) This principle applies to the crimes of robbery, theft, burglary, and receiving stolen property. (Ibid.)

The recently stolen element is key to both the instruction and the underlying legal principle. (People v. Anderson (1989) 210 Cal.App.3d 414, 421.) It is, however, a factual determination. (Id. at p. 422.) Courts have been reluctant to attempt demarcation of any bright line between recent and stale time periods in this context. (Ibid.) The longer the time interval, the weaker the inference of any guilt. (Id. at p. 421.) Therefore, whether the Lakers jersey, Clippers tickets, and AMC movie passes constituted recently stolen property, given the time lapse between the burglary of Joshua Davis apartment and the discovery of the items in appellants possession, was a factual question for the jury. While there may be an upper limit to what a jury reasonably may characterize as recent, the 23-day interval here is not so great that reasonable jurors would necessarily conclude that no legitimate inference could be drawn that appellant was the person who stole the property. If the jury concluded 23 days was not recent, it would not apply the instruction, as its application is expressly premised upon a finding that the property had in fact been recently stolen, and the jury was instructed that some instructions might be inapplicable (CALCRIM No. 200).

Moreover, it is not reasonably likely the jury misconstrued CALCRIM No. 376. The instruction expressly informed the jury it could not convict appellant of burglary simply because he possessed some of the property taken during the robbery. As the Supreme Court noted in People v. Holt (1997) 15 Cal.4th 619, 677 (construing CALJIC No. 2.15), the jury would not understand an additional instruction that it could not rely solely on evidence that appellant possessed recently stolen property to suggest it need not find that all of the elements of burglary had been proven beyond a reasonable doubt. The inference addressed by CALCRIM No. 376 is one that many, if not all, jurors would logically and naturally draw: if appellant possessed the property taken in the first burglary, he must have been the burglar. The instruction protected appellant by restricting the jurys unwarranted inference of guilt based solely on possession of property stolen during the burglary. (People v. Holt, supra, 15 Cal.4th at p. 677.) The predecessor of CALCRIM No. 376CALJIC No. 2.15repeatedly withstood challenges on the ground that it reduced the prosecutions burden of proof or otherwise violated due process. (See, e.g., People v. Williams (2000) 79 Cal.App.4th 1157, 1173-1174, and cases cited therein.)

In addition, the correctness of jury instructions is determined from the entire set of instructions, not just an isolated instruction or part of an instruction. (Peoplev. Frye (1998) 18 Cal.4th 894, 957.) The jury was instructed it must not single out individual instructions, but must read the instructions as a whole (CALCRIM No. 200); before the jury could rely upon circumstantial evidence to determine a fact necessary to establish guilt was proved, it must also find each fact essential to that conclusion was proved beyond a reasonable doubt (CALCRIM No. 224); the jury must adopt the interpretation pointing to appellants innocence if circumstantial evidence was equally susceptible of two reasonable interpretations (CALCRIM No. 224); in order to find appellant committed first degree burglary, the jury must find that he entered a house or apartment while harboring the intent to commit theft (CALCRIM No. 1700); and the prosecution bore the burden of proof beyond a reasonable doubt (CALCRIM No. 220). Viewing CALCRIM No. 376 in light of the remaining instructions, we find no reasonable likelihood that the jury misconstrued or misapplied the words of the instruction.

The trial court therefore did not err by giving CALCRIM No. 376.

3. No cumulative instructional error occurred.

Appellant contends that the cumulative prejudicial effect of the purported instructional errors mandates reversal. Because we conclude that the only potential instructional error - failing to give CALCRIM No. 358 - was harmless, appellants cumulative error claim lacks merit.

4. Sufficient evidence supports appellants conviction in count one.

Appellant contends the identification evidence was insufficient to support his conviction of the burglary in count 1, i.e., the burglary of Joshua Davis apartment. He argues the evidence was insufficient to establish that either appellant was the person witness Joshua Baldwin observed or the person whom Baldwin observed commit the burglary at Davis apartment.

To resolve this issue, we review the whole record in the light most favorable to the judgment to decide whether substantial evidence supports the conviction, so that a reasonable jury could find guilt beyond a reasonable doubt. (Peoplev.Ceja (1993) 4 Cal.4th 1134, 1138.)

Baldwin testified that at about 11:15 a.m. on January 24, 2005, he was awakened by a loud noise right outside his door. He looked out the window facing the back parking lot and saw a large, boxy, dark blue, early 1980s Cadillac, Oldsmobile, or similar looking car, in poor condition. Baldwin was upstairs, looking down on the car from about 24 feet away. Within a few seconds, he saw a man walking from the driveway of the apartment building towards the car. At trial and the preliminary hearing, Baldwin identified appellant as the man whom he saw walking to the car. Appellant took what appeared to be a small blanket or a T-shirt from the back of the car and walked back under the parking garage, out of Baldwins view. Appellant reappeared about a minute later, using the shirt he had taken from his car as a sack, with objects inside it. Baldwin could not see what was in the makeshift bag, but because its contents had right angles and points, he thought they might be books, CDs or boxed CD sets. Appellant looked up and made eye contact with Baldwin. Appellant appeared startled and shook his head. He began to move a bit faster. He moved a stepladder that was leaning against his car back to the garage area, and then returned to his car. He looked up at Baldwin again, and then started the car. Appellants car, however, got hung up on the tight corner for about 12 seconds and scraped the apartment building. The car struck the building just in front of the rear wheel on the passenger side. Baldwin went downstairs to get a better look at the car. He also saw about 18 inches of dark paint on the edge of the building at a height of about one to two feet. At trial, he identified the car appellant was driving when arrested (Peoples Exhibit 2) as the car he saw appellant driving on January 24, 2005. The entirety of Baldwins observations that day lasted about two minutes.

Joshua Davis testified the entry door to his apartment faced the parking lot at the back of the building. When he returned home on January 24, 2005, he noticed that his drawers and closet doors were open and someone had taken things from the closet and placed them on the floor. A glass jar of change, two pairs of Clippers tickets, AMC movie theater passes, department store gift cards, a broken digital camera, and a Shaquille ONeal Lakers jersey were missing. No books or CDs were missing from Daviss apartment. From the backyard, Davis noticed that the screen in the bathroom window had been ripped out.

When shown a photographic array on February 18, 2005, Baldwin selected the photograph of another man as his first choice, and appellants photograph as his second choice. At that time, he described appellants photograph as a possible consideration to me, but not as strong a presence in my memory. At trial, Baldwin testified that the men in the two photographs he selected had very similar facial features and structures, but when he actually saw appellant in court, he felt he was actually seeing the same person and just knowing it and remembering it, and seeing him again for the first time since that day. Baldwin further explained that it was a shocking memory in my gut that comes back. Seeing the gentlemans eye and the facial structure to me that just reminds me exactly at the moment that it happened. Baldwin testified he had no doubt about his identification of appellant.

Detective Kimberly Gilbert testified that the day after appellant was arrested, she examined his car and saw yellow paint transfer on the passenger side rear wheel well and door. On the same day, she went to the apartment building in which Joshua Davis resided and observed a black paint transfer on the corner of the building by the driveway. The height and color of the paint transfer on appellants car was consistent with the transfer on the building. Samples of the paint were collected for comparison purposes, but Gilbert was not aware whether they were actually tested.

Baldwins failure to select appellants photograph from the array exclusively or as his first choice did not invalidate his in-court identification testimony. Instead, the inconsistency merely went to the weight and credibility of his identification testimony. Appellant cross-examined Baldwin regarding the inconsistency and argued it at length to the jury. Testimony believed by the trier of fact may be rejected on appeal only if it is physically impossible or obviously false. (Peoplev.Allen (1985) 165 Cal.App.3d 616, 623.) Weaknesses and inconsistencies in eyewitness testimony are for the jury to evaluate. (Ibid.) Baldwins identification of appellant was neither physically impossible nor obviously false. Indeed, it was corroborated by appellants possession of property stolen from Davis during the burglary, Baldwins identification of appellants car, and paint damage to appellants car and Daviss apartment building that was consistent with Baldwins testimony regarding his observations. It is irrelevant that Baldwin thought appellant had books or CDs in the makeshift bag, as he admitted he could not see what was in the bag, and simply guessed at its contents because he saw shapes indicating right angles and pointy corners.

Although no one saw appellant enter Joshua Daviss apartment, Baldwin saw appellant, who was a stranger to both Davis and Baldwin, engaged in suspicious behavior in the immediate vicinity of Daviss apartment, including carrying property from inside the building or the garage to his car, and appellant was later found in possession of some of the property stolen from within Daviss apartment the same day. This constituted strong circumstantial evidence that appellant entered the apartment and stole the property. The jury rejected appellants argument that the prosecution failed to show the man observed by Baldwin committed a burglary.

Viewing the entire record in the light most favorable to the judgment, we conclude substantial evidence supports appellants conviction for burglarizing Joshua Daviss apartment.

5. The trial court did not abuse its discretion by denying appellants

Romero motion.

The trial court sentenced appellant to concurrent terms of 25 years to life under the Three Strikes law after denying appellants motion to vacate a finding regarding one of his prior serious felony convictions. Appellant contends the trial court abused its discretion by denying the motion. He argues the court failed to weigh properly the actual nature of the current offenses or his background and prospects.

A trial court has discretion under the Three Strikes law to dismiss or vacate prior conviction allegations or findings in the furtherance of justice. (Pen. Code, 1385, subd. (a); Peoplev.SuperiorCourt (Romero) (1996) 13 Cal.4th 497, 529-530 (Romero).) In exercising this power, the court must consider the defendants background, his constitutional rights, the nature of the current offense, and the interests of society. (Id. at pp. 530-531.) The court should not dismiss or vacate a strike unless it concludes that the defendant may be deemed to be outside the antirecidivist spirit of the Three Strikes law. (Peoplev.Williams (1998) 17 Cal.4th 148, 161.)

The trial courts decision is reviewed deferentially. (People v. Carmony (2004) 33 Cal.4th 367, 374.) The 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.) The Three Strikes law not only establishes a sentencing norm, it carefully circumscribes the trial courts power to depart from this norm and requires the court to explicitly justify its decision to do so. In doing so, the law creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper. [] In light of this presumption, a trial court will only abuse its discretion in failing to strike a prior felony conviction allegation in limited circumstances, such as where the court was unaware of its discretion or considered impermissible factors. (Id. at p 378.) Where the record is silent . . . or [w]here the record demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the trial courts ruling, even if we might have ruled differently in the first instance. [Citation.] 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. (Ibid.)

At the sentencing hearing, the trial court confirmed that appellant was requesting that it vacate one strike. It then expressed curiosity about a case in another court where the D.A. did strike a strike on a third strike case and asked counsel to look into that case and address the matter when the sentencing hearing resumed that afternoon. Appellants brother then addressed the court on appellants behalf, asking for a shorter sentence, and promising to make sure nothing happens, that he doesnt get in any more trouble . . . . The court thanked appellants brother and placed the case on second call.

When the sentencing hearing resumed after lunch, the prosecutor explained that the case to which the court referred was not a three strikes case. Before ruling on appellants Romero motion, the trial court heard from appellant and defense counsel. The prosecutor noted that appellants two prior first degree burglary convictions stemmed from different cases and the crimes occurred at different times, but the conviction date was the same in each. The prosecutor also informed the court that appellant was on parole when he committed the current offenses. The court interrupted the prosecutor and announced that it declined to strike the strike in light of the nature of the new charge, the open case, that being a very serious felony.

The record demonstrates that the trial court was fully aware of its discretion to vacate one of the jurys strike findings. Indeed, the courts curiosity and remarks concerning a case it had heard about reveals it was willing to consider vacating one of the strike findings if an appropriate and persuasive basis existed for doing so. Although the courts statement of reasons was terse, nothing indicates it considered any improper factors. The nature of the current offense is a proper matter for consideration. Appellants minimizing view of the nature of the current offenses does not render the courts differing conclusion arbitrary or irrational. The Legislature long ago concluded that first degree burglary is a serious offense, even when the victim is absent at the time of the burglary. (Pen. Code, 1192.7, subd. (c)(18).) Although the court did not refer to appellants background or prospects, it listened to both appellant and his brother address these matters, and thanked each man for his remarks. The court also heard that appellant was on parole at the time he committed the current offenses, and the probation report, which the court stated it had read, revealed he had only been paroled in November 2004, approximately two months before the first of the current offenses. The court had apparently also read appellants Romero motion, as indicated by the fact that it brought up the request to vacate the strike finding at the outset of the sentencing hearing. The motion raised factors regarding the prior convictions, such as appellants youth, the absence of other prior felony convictions, and their common conviction date and commission during a single period of conduct. Nothing indicates the courts decision lacked impartiality. Accordingly, the trial court did not abuse its broad discretion in ruling upon a Romero motion. This case did not present the even more extraordinary circumstances in which all reasonable people would agree appellant fell outside the antirecidivist spirit of the Three Strikes law.

Appellant complains that the trial court apparently made up its mind before trial, as the court warned appellant during pretrial discussions of his unwillingness to even consider a potential plea offer that If you lose, youre - - Im not going to be striking any strikes. I can tell you that on res burgs. Im not. [] So youre going to get your 25 to life if you go down on this as far as I can tell. There might be something that comes up. Im not saying its in stone, but theres nothing that Im looking at here that would allow me to strike a strike from what I could tell.

The latter portion of this statement and the trial courts subsequent inquiry and statements regarding another case at the sentencing hearing indicate the court did not simply follow an across-the-board policy or otherwise refuse to exercise its discretion. At most, the courts statement reflects an opinion that residential burglary is a very serious type of crime. The Legislature agrees (Pen. Code, 1192.7, subd. (c)(18)), and we cannot conclude the court abused its discretion simply by applying the law.

6. Appellants sentence is not disproportionate or unconstitutional.

Appellant contends his sentence of 30 years to life is grossly disproportionate to the offenses and constitutes cruel and/or unusual punishment in violation of the United States and California constitutions. Appellant did not raise this issue in the trial court, and therefore forfeited it. (People v. DeJesus (1995) 38 Cal.App.4th 1, 27.) We must nonetheless effectively address its merits, as he claims defense counsel rendered ineffective assistance by failing to raise the issue in the trial court.

A claim that counsel was ineffective requires a showing, by a preponderance of the evidence, of objectively unreasonable performance by counsel and a reasonable probability that, but for counsels errors, appellant would have obtained a more favorable result. (People v.Ledesma (1987) 43 Cal.3d 171, 216-218.) Where the error claimed is the failure to make a motion, appellant must show that the motion would have been successful. (People v. Grant (1988) 45 Cal.3d 829, 864.)

Analysis of appellants claim under the Eighth Amendment to the United States Constitution is controlled by Ewing v. California (2003) 538 U.S. 11. There, the United States Supreme Court held the Eighth Amendment did not prohibit a third strike sentence of 25 years to life for a defendant who shoplifted three golf clubs and had previously committed three first degree burglaries and one first degree robbery. A majority of the court concluded that in noncapital cases, the Eighth Amendment either contains only a narrow proportionality principle (Chief Justice Rehnquist and Justices OConnor and Kennedy) or that it contains no proportionality principle at all (Justices Scalia and Thomas). (Id. at pp. 20, 31.) Under the narrow proportionality principle recognized by the plurality, the Eighth Amendment does not require strict proportionality between the offense and the resulting sentence and does not mandate comparative analysis within or between jurisdictions. (Id. at p. 23.) Rather, it forbids only extreme sentences that are grossly disproportionate to the crime. (Ibid.) In weighing the gravity of the appellants offenses, both his criminal history and his current felony must be considered. (Id. at p. 29.)

The Ewing plurality noted that, outside the capital context, successful challenges to the proportionality of a particular sentence are exceedingly rare. (Ewing, supra, 538 U.S. at p. 21.) Without comparing Ewings sentence with the punishment for other crimes in California or with the punishment for the same crime in other states, the Supreme Court concluded the case before it was not a rare case in which a proportionality challenge could succeed. (Id. at pp. 29-30.) It found the third strike sentence justified by the States public-safety interest in incapacitating and deterring recidivist felons, and amply supported by his own long, serious criminal record. (Ibid.)

Admittedly, appellants sentence is severe. However, when viewed in light of the gravity of his current offense, his substantial criminal history - including two prior first degree burglaries and 11 misdemeanors - and his unmistakable pattern of recidivism, a sentence of 30 years to life is not an extreme or grossly disproportionate sentence. Appellants sentence therefore does not violate the Eighth Amendment.

With respect to appellants claim under the California Constitution, the question is essentially whether his sentence is so disproportionate to the crime as to shock the conscience and offend fundamental notions of human dignity. (Peoplev. Dillon (1983) 34 Cal.3d 441, 478;In re Lynch (1972) 8 Cal.3d 410, 424.) The main technique of analysis is to examine the nature of the offense and the offender. (People v. Dillon, supra, 34 Cal.3d at p. 479.) The trial court must consider both the nature of the offense in the abstract, and the facts of the crime in the particular case, including factors such as its motive, the way it was committed, the extent of the defendants involvement, and the consequences. (Ibid.) With respect to the nature of the offender, the question is whether the punishment is grossly disproportionate to the defendants individual culpability as shown by such factors as his age, prior criminality, personal characteristics, and state of mind. (Ibid.) Appellant must overcome a considerable burden in convincing us that his sentence is disproportionate. (Peoplev.Weddle (1991) 1 Cal.App.4th 1190, 1196-1197.)

Residential burglary is considered an extremely serious crime. While it is fortunate that no one was home during the commission of the two charged offenses and there was little property loss, the residential burglaries appellant committed were nonetheless serious crimes perpetrated by appellant alone, apparently solely for personal gain. Appellant was 25 years old at the time he committed the first of the current offenses, and 26 when he committed the second of them. As far as the probation report reveals, his criminal record began when he was 18. Including the current offenses, he has been convicted of four burglaries, all of them residential in nature. In addition, he has 11 misdemeanor convictions, including receiving stolen property, theft, and carrying a loaded gun in a public place. He was on parole at the time of the current offense. Indeed, he burglarized Joshua Daviss home two months after being released from prison. Appellants failure to refrain from criminal activity and his persistence in burglarizing homes clearly demonstrate that lesser punishments have been ineffective deterrents. The purpose of the Three Strikes law is to protect society by isolating people, such as appellant, who repeatedly demonstrate a disposition toward criminal behavior. Because his sentence of 30 years to life penalizes his persistent serious criminal conduct, it neither shocks the conscience nor offends fundamental notions of human dignity. Appellants sentence therefore does not violate the California Constitution.

Accordingly, appellant has not established ineffective assistance of counsel, as raising the disproportionality issue would have been futile.

7. The abstract of judgment requires correction.

Respondent correctly notes that the abstract of judgment fails to indicate that appellants sentence was imposed under the Three Strikes law. If it has not already done so, the trial court must amend the abstract of judgment.

DISPOSITION

The judgment is affirmed. Unless it has already done so, the trial court is directed to issue an amended abstract of judgment that clearly indicates appellant was sentenced under Penal Code sections 667, subdivisions (b)-(i) or 1170.12.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

BOLAND, J.

We concur:

COOPER, P. J.

FLIER, J.

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Analysis and review provided by Chula Vista Property line attorney.

^[1] CALCRIM No. 358 states, You have heard evidence that the defendant made [an] oral or written statement[s] (before the trial/while the court was not in session). You must decide whether or not the defendant made any (such/of these) statement[s], in whole or in part. If you decide that the defendant made such [a] statement[s], consider the statement[s], along with all the other evidence, in reaching your verdict. It is up to you to decide how much importance to give to such [a] statement[s]. [] [You must consider with caution evidence of a defendants oral statement unless it was written or otherwise recorded.]

CALCRIM No. 359 states, The defendant may not be convicted of any crime based on (his/her) out-of-court statement[s] alone. You may only rely on the defendants out-of-court statements to convict (him/her) if you conclude that other evidence shows that the charged crime [or a lesser included offense] was committed. [] That other evidence may be slight and need only be enough to support a reasonable inference that a crime was committed. [] The identity of the person who committed the crime [and the degree of the crime] may be proved by the defendants statement[s] alone. [] You may not convict the defendant unless the People have proved (his/her) guilt beyond a reasonable doubt.

^[2] As given at appellants trial, CALCRIM No. 376 provided as follows: If you conclude that the defendant knew (he/) possessed property and you conclude that the property had in fact been recently (stolen/), you may not convict the defendant of burglary based on those facts alone. However, if you also find that supporting evidence tends to prove (his/) guilt, then you may conclude that the evidence is sufficient to prove (he/) committed burglary. [] The supporting evidence need only be slight and need not be enough by itself to prove guilt. You may consider how, where, and when the defendant possessed the property, along with any other relevant circumstances tending to prove (his/her) guilt. [] Remember that you may not convict the defendant of any crime unless you are convinced that each fact essential to the conclusion that the defendant is guilty of that crime has been proved beyond a reasonable doubt.