P. v. Davenport

Filed 10/22/07 P. v. Davenport CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Kern County. Michael G. Bush, Judge.

Jean M. Marinovich, 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, Carlos A. Martinez and J. Robert Jibson, Deputy Attorneys General, for Plaintiff and Respondent.

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Defendant Kevin Davenport was convicted of various crimes connected to his theft of a video camera. Pursuant to the Three Strikes law, he was sentenced to 25 years to life in prison. On appeal, he contends (1) the prosecutor committed misconduct in closing argument by diluting the reasonable doubt standard and by urging the jurors not to deliberate, (2) the trial court deprived defendant of a jury trial on the issue of identity regarding the prior conviction allegations, (3) the trial court abused its discretion by denying his Romero^[1]motion to dismiss his prior convictions, and (4) his 25-year-to-life sentence is cruel and/or unusual punishment. We will affirm the judgment.

PROCEDURAL SUMMARY

On February 10, 2006, the Kern County District Attorney charged defendant with grand theft (Pen. Code,  487, subd. (a);^[2]count 1), petty theft with a prior ( 666; count 2), receiving stolen property ( 496, subd. (a); count 3), and misdemeanor battery ( 243, subd. (a); count 4). The information also alleged that defendant had suffered two prior felony convictions within the meaning of the Three Strikes law ( 667, subds. (b)-(i); 1170.12, subds. (a)-(d)).

The trial court granted defendants motion for judgment of acquittal on count 1 ( 1118.1) and the jury found defendant guilty on the remaining counts. The jury also found the prior conviction allegations true.

The trial court denied defendants Romero motion to strike his prior convictions and sentenced him to 25 years to life on count 2, dismissed count 3 and imposed a concurrent term of six months on count 4.

FACTS

On January 4, 2006, defendant went to the home of Celine and her 17-year-old daughter, Jacqueline. Celines sister, Sabrina, who previously had been romantically involved with defendant, was also living at Celines house at that time. When defendant arrived that evening at about 7:00 p.m., Jacqueline was in her bedroom working on a painting for school. She was the only one at home. Defendant came into her room to look at her painting and they spoke briefly. Then defendant went to another room and waited for Sabrina to return. A few hours later, Celine and Sabrina came home. Defendant left later that night.

When Jacqueline got up the next morning, she noticed that her digital video camera that had been charging on the top of her dresser was gone. She had received it from her boyfriend about one month earlier. She looked around the house, then told Celine and Sabrina her camera was missing. They realized that defendant had been the only other person in the house and Jacqueline had not watched him when he was in her room. They decided to go to his house.

Celine rang defendants doorbell, but no one came to the door. Through the glass door, Celine could see defendant moving around inside the house. She banged on the door and told him to open the door. She told him she could see him and she knew he was there. Defendant opened the door in his underwear. Celine asked him to return her daughters camera. He said he did not know what she was talking about. They went outside on the sidewalk toward the garage. He said he couldnt believe [she] brought this shit to his house, and she responded that she couldnt believe [he] would steal [her] daughters camera. Defendant punched her in the chest and caused her to fall back against the wall of the house. Sabrina got between them, then she and Celine got in the car.

Defendants neighbor, Anthony, was outside working on a car. He saw Celine and Sabrina arrive and approach defendants front door. About five minutes later, Anthony heard a loud crack. He heard a woman yell, Keep your hands off of me. You hit me. Leave me alone. She also yelled, You stole my camera. Anthony walked out toward his driveway as the two women got in their car. One of the women asked him, Did you see that? He said, No, I didnt see it, but I heard something. She told him defendant stole her camera. Celine and Sabrina left.

Anthony saw defendant drive away after Celine and Sabrina left. About 10 or 15 minutes later, defendant stopped his vehicle in front of Anthonys house. Defendant told Anthony, Here, hold this. He handed Anthony a video camera and he left. Anthony took it inside. He showed it to his wife and told her what he had heard. She told him to call the police.

Celine and Sabrina drove to the police station. After an officer heard their story, he went to defendants house, but defendant was not home. As the officer was leaving, he saw Anthony walking down the street. At some point, Anthony told the officer about the camera and the officer confiscated it. Jacqueline identified it as hers. When the officer returned to the station, defendant contacted him. Defendant said he wanted to make a complaint about two women coming to his house to harass him.

Defense Evidence

Defendant testified on his own behalf. He said he arrived at Celine and Sabrinas house at about 7:00 p.m. on January 4, 2006. Jacqueline let him in and told him Sabrina would be back soon. Jacqueline went to her room and defendant sat in the living room for a while. He went into Jacquelines room and saw that she was drawing. After Sabrina came home, he and Sabrina went into Sabrinas room for about four hours. Defendant fell asleep and when Sabrina woke him up, a camcorder was there. When they left the house, Sabrina took an overnight bag and the camcorder. They went to a liquor store to try to sell the camcorder to defendants friend. The friend was not there so defendant took Sabrina home.

The next morning, Celine came to defendants door and woke him up. Celines banging on the door made his children cry and his dogs bark. Celine said, Give me my daughters camera. Defendant said, What are you talking about? She said, Well, I know you got it. Give it back and give me my game back that I let you use. Defendant went into the house and got the game, but he told her, I dont know nothing about your daughters camera. Sabrina told me [] she had a camera. I dont know nothing about your daughters camera. Celine approached him in his doorway and grabbed the door handle and said, You got the camera. She tried to force her way into the house and defendant pushed her back. He said, No, you cant come in my house. She told him she was going to the police station. He said he was going there also to file a report.

Defendant got dressed immediately and went to the police station. The officers were out in the field, so defendant said he would return later. On defendants way home, Anthony flagged him down and told him, The cops just left your house. As defendant pulled into Anthonys driveway, he stopped his vehicle abruptly because a tire or something started to roll back. When he stopped, a camera rolled out from under his passenger seat. Defendant immediately handed the camera to Anthony, saying, Can you hold this for me so I can see whats going on[?]

Defendant went back to the police station, but the officers were still in the field. Defendant returned home again and was flagged down by Anthony a second time. Anthony told him the officers had been there again. He said, I still have the camera, though, my wife put it up for you. Defendant told him, You should have turned it over to the police. At that point, three police cars pulled up.

Defendant told an officer that he did not know anything about a stolen camera because he believed the camera was Sabrinas. He said Sabrina left it in his vehicle and he did not know it was stolen. He said he first became aware that the camera was in his vehicle when it slid out from under the seat.

Rebuttal Evidence

A police officer testified that the first time he spoke to defendant about the camera was after his arrest. The officer showed defendant the camera and asked him if he knew anything about the camera and if he knew where the officer had gotten it. Defendant said he had never seen the camera before in his life and he had no idea how either the officer or Anthony had gotten it.

After the officer filled out the paperwork, defendant said he was sorry for lying and he wanted to explain what really happened. He said Sabrina took the camera from the house and gave it to him that night. He and Sabrina went to Anthonys house because defendant knew Anthony was missing a video camera and defendant wanted to replace that missing camera for Anthony. Anthony, however, was not home. Defendant never mentioned to the officer anything about trying to sell the camera.

DISCUSSION

I. Prosecutorial Misconduct

Defendant contends the prosecutor diluted the prosecutions burden of proving defendant guilty beyond a reasonable doubt by arguing that reasonable doubt is satisfied even when the jurors want more evidence of guilt and before they have engaged in the deliberative process. Defendant argues defense counsel was ineffective for failing to object to the prosecutors argument.

Specifically, defendant challenges the following argument by the prosecutor:

But I know there are questions that we are going to leave open for you, which means youre going to want more evidence to answer those questions. [] The reasonable-doubt analysis goes something like this: You are going to go in back and somebody is going to say -- it happens every time -- I know he did it, but I want more evidence. Somebody is going to say that on this panel. [] Well, when you get to that point, you have already made your reasonable-doubt analysis. I know he did it. Then stop right there, because that means you believe he did it, which is what the instruction says. You believe in the truth of the charge, I know he did it. You dont need anymore evidence. Thats reasonable doubt. When you get to that point, you can render a verdict. (Italics added.)

Defendant argues that the prosecutor informed the jurors they could make a finding of guilt despite a lingering doubt and could then render a guilty verdict without further analysis. He maintains that the one-hour deliberation time suggests the jurors were indeed misled into applying a lower burden of proof and concluding their deliberations prematurely. According to defendant, the lack of convincing evidence against him establishes prejudice arising from this alleged error.

[I]t is improper for the prosecutor to misstate the law generally ... and particularly to attempt to absolve the prosecution from its prima facie obligation to overcome reasonable doubt on all elements. [Citation.] [Citation.] (People v. Hill (1998) 17 Cal.4th 800, 829.) The prosecutors statements in closing argument, however, must be viewed in context with the remainder of summation. (People v. Medina (1995) 11 Cal.4th 694, 756.) Furthermore, a prosecutors misstatement of the reasonable doubt standard is harmless error when the trial court instructs the jury with a proper reasonable doubt instruction because the jury is presumed to have relied on the courts instructions, not the attorneys arguments, and to have understood and followed the trial courts instructions. (People v. Morales (2001) 25 Cal.4th 34, 47; People v. Nguyen (1995) 40 Cal.App.4th 28, 36-37.)

Therefore, even assuming the prosecutors statement was an incorrect statement of the law, we conclude the alleged error was harmless. The prosecutor repeated he had the burden of proving defendants guilt on all the elements beyond a reasonable doubt, and defense counsel also emphasized that the prosecutor bore this burden of proof. The trial court instructed the jury it was required to apply the law as stated in the courts instructions, and those instructions would control if the attorneys made any contrary statements.^[3] The court correctly instructed the jury concerning the reasonable doubt standard and the prosecutors burden of proof.^[4] The court instructed the jury that it was its duty to deliberate in an attempt to reach a consensus.^[5] We presume the jury followed the instructions given, and we therefore conclude it was not reasonably probable the jury was misled by the prosecutors statements, even if those statements were erroneous.

II. Right to Jury Trial on Prior Conviction

Defendant asserts that the trial court violated his right to a jury trial on the issue of identity regarding the prior conviction allegations when it informed the jury that he was the person named in the exhibits supporting the prior conviction allegations. Defendant concedes this procedure has been upheld by state and federal decisions holding that there is no right to a jury trial on this issue (Almendarez-Torres v. U.S. (1998) 523 U.S. 224; People v. Epps (2001) 25 Cal.4th 19, 23), but he raises the argument to preserve it for appeal. We are bound to follow these decisions. (Auto Equity Sales, Inc. v.Superior Court (1962) 57 Cal.2d 450, 455.)

III. Denial of Romero Motion

Defendant takes the position that the trial court abused its discretion by refusing to dismiss or strike his prior felony conviction allegations. We disagree.

The Three Strikes law was intended to restrict courts discretion in sentencing repeat offenders. [Citation.] (People v. Carmony (2004) 33 Cal.4th 367, 377.) [T]he Three Strikes law does not offer a discretionary sentencing choice, as do other sentencing laws, but establishes a sentencing requirement to be applied in every case where the defendant has at least one qualifying strike, unless the sentencing court conclud[es] that an exception to the scheme should be made because, for articulable reasons which can withstand scrutiny for abuse, this defendant should be treated as though he actually fell outside the Three Strikes scheme. [Citation.] (Ibid.) Thus, 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. (Id. at p. 378.)

If the trial court does decide to depart from this sentencing norm, the court may dismiss a prior felony conviction allegation. ( 1385; Romero, supra, 13 Cal.4th at pp. 529-530.) The court must consider whether, in light of the nature and circumstances of [the defendants] present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the schemes spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies. (People v. Williams (1998) 17 Cal.4th 148, 161.) But, because the Three Strikes law creates a strong presumption that any sentence conforming to its sentencing norm is both rational and proper, only in limited circumstances will a trial court abuse its discretion by deciding not to dismiss a prior conviction. (People v. Carmony, supra, 33 Cal.4th at p. 378.)

A defendant has the right to seek review of a trial courts decision not to dismiss a prior conviction. (People v. Carmony, supra, 33 Cal.4th at p. 376.) The trial courts decision is reviewed under the abuse of discretion standard, and the burden is on the defendant to show that the courts decision was irrational or arbitrary. (Ibid.) [A] trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it. (Id. at p. 377.) For example, an abuse of discretion occurs where the trial court was not aware of its discretion to dismiss [citation], or where the court considered impermissible factors in declining to dismiss [citation]. Moreover, the sentencing norms [established by the Three Strikes law may, as a matter of law,] produce[] an arbitrary, capricious or patently absurd result under the specific facts of a particular case. [Citation.] (Id. at p. 378.)

But, the Supreme Court has stressed that such cases are extraordinary. Where the record is silent [citation], 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. Of course, in such an extraordinary case -- where the relevant factors described inWilliams, supra, 17 Cal.4th 148, manifestly support the striking of a prior conviction and no reasonable minds could differ -- the failure to strike would constitute an abuse of discretion. (People v. Carmony, supra, 33 Cal.4th at p. 378.)

In this case, the trial court considered defendants motion to strike his prior convictions and stated:

But I have considered this case. I spent a lot of time with [defendant]. And Ive looked at all the factors that have been cited by both sides and the motions. [] In one way, I do agree. In some ways, I want to say its just a camera, but its really more than that. Its a violation of trust. Clearly, he took advantage of a situation where this young girl lost her camera. I realize she got it back, but the camera was taken from her. He really violated the trust of her and the family by having a relationship with the aunt.

I also look at his record, which not only includes the two strike priors but a couple other misdemeanors. But I also focus in on that in 2002, in Los Angeles County, he was charged with a qualifying third strike, the 11350. He could have been given 25 years to life then. Apparently, L.A. County felt it appropriate -- and Im not suggesting it was -- Im not commenting its good or bad -- it was appropriate then to put him on felony probation, drug rehabilitation.

Hes had his chance. He has been told. This is the second time he is looking at 25 years to life. And after he got what I would consider a break in 2002, maybe an inappropriate break but still a break, he committed a burglary in Mojave, albeit a misdemeanor, a battery in Mohave, obviously a misdemeanor, didnt go to counseling that he should have, did 270 days, and then he committed this theft and this misdemeanor battery. He has been given the breaks, and I dont know that he is entitled to another break.

So with that, I have considered all of his background, his history. I have weighed out the fact that it was a camera. There [was] no violence in taking the camera. It wasnt [that] he just took the camera. But even when I weigh all that out, I think that the punishment in this particular case should be 25 to life. I think that its time that he understands he cannot keep victimizing society. Thats what it comes down [to]. Hes had his chance. He had his chance in 2002, and he just keeps blowing it.

With that, there [are] no circumstances in mitigation. Circumstances in aggravation include that his prior convictions as an adult are numerous, he has served two prior prison terms and a commitment to the Youth Authority, his prior performance on probation and parole has been unsatisfactory in that he continued to re-offend and he failed the terms of probation. [] As to Count [2], probation is denied. The defendant is sentenced to the Department of Corrections for the term prescribed by law of 25 years to life.

In light of the trial courts analysis and the record before us, we cannot say the court abused its discretion by refusing to dismiss defendants prior convictions. The court articulated its reasons for denying the Romero motion and the record demonstrates that the court carefully considered the relevant factors, such as defendants history and his failure to reform even when given a reprieve from a 25-year-to-life sentence in 2002. The court considered the nature of the current felony, which involved a violation of trust when defendant victimized a family that had included him by virtue of a personal relationship. The court also weighed the factor that the theft involved only a camera and no violence; however, the court reasonably concluded that defendant had refused to learn from his previous punishment and continued to victimize society with his recidivism. The record of defendants criminal history supports the trial courts findings. We conclude defendants case is not an extraordinary one, and the trial courts decision not to dismiss defendants prior convictions did not exceed the bounds of reason or rationality. There was no abuse of discretion.

IV. Cruel and/or Unusual Punishment

Defendant contends his prison sentence of 25 years to life constitutes cruel and/or unusual punishment under the state and federal Constitutions. (Cal. Const., art. I, 17; U.S. Const., 8th Amend.) We conclude defendants argument is without merit.

A. California Standard

A sentence is unconstitutional according to California law if it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity. (In re Lynch (1972) 8 Cal.3d 410, 424.) In order to challenge a sentence as cruel and unusual the defendant has a considerable burden to overcome. (People v. Wingo (1975) 14 Cal.3d 169, 174.) The doctrine of separation of powers is firmly settled in the law of California, and the determination of sentencing is a legislative function. (Ibid.) The validity of enactments will not be questioned unless the unconstitutionality clearly, positively, and unmistakably appears. (Ibid.)

To determine whether a sentence is disproportionate, courts should (1) consider the nature of the offense and the offender, (2) compare the punishment with punishments imposed for more serious crimes in California, and (3) compare the punishment with punishment imposed for the same crime in other jurisdictions. (In re Lynch, supra, 8 Cal.3d at pp. 425-427.) Applying these factors, we conclude defendants punishment is not cruel or unusual under California law because it is not disproportionate to his crimes.

1. Nature of the Offense and the Offender

Defendant argues that petty theft is a relatively minor and passive crime. He points out that, but for his prior convictions, his offense would have been only a misdemeanor and therefore the sentence is disproportionate.

Regarding the nature of the offense and the offender, we evaluate the totality of the circumstances, including the defendants motive, involvement, the manner of commission of the crimes, the consequences of his acts, and his individual characteristics such as age, prior criminality, and state of mind. (People v. Lucero (2000)23 Cal.4th 692, 739.)

Here, defendants substantial criminal background makes him precisely the type of offender from whom society seeks protection by the use of recidivist statutes. (People v. Ingram (1995) 40 Cal.App.4th 1397, 1415; overruled on another ground in People v. Dotson (1997) 16 Cal.4th 547, 560, fn. 8.) Defendant has engaged in criminal activity for approximately 22 years, beginning when he was a juvenile. His convictions include possession of a controlled substance in 1985; robbery in 1989; disorderly conduct and loitering in 1991; burglary in 1992; possession of cocaine in 2002; and second degree burglary and battery in 2003. Defendant served prison terms for the 1989 and 1992 convictions and violated probation on five different occasions. There is no indication defendant desires to reform or to change his criminal behavior. (People v. Ingram, supra, at p. 1415.) Indeed, he chose to reoffend even after narrowly avoiding a 25-year-to-life sentence. Fundamental notions of human dignity are not offended by the prospect of exiling from society those individuals who have proved themselves to be threats to the public safety and security. (Id. at p. 1416.) In light of the nature of the offense and the offender, defendants sentence does not shock the conscience or offend human dignity.

Moreover, defendants 25-year-to-life sentence is the same sentence that has been imposed in similar cases and upheld by the courts. (See, e.g., Ewing v. California (2003) 538 U.S. 11, 30-31 [theft of $1,200 worth of golf clubs]; Lockyer v. Andrade (2003) 538 U.S. 63, 77 [theft of $150 worth of video tapes]; People v. Romero (2002) 99 Cal.App.4th 1418, 1424, 1433 [magazine theft].) Defendant argues his case is more similar to People v. Carmony (2005) 127 Cal.App.4th 1066, 1078 (Carmony) [failure to update sex offender registration] and Ramirez v. Castro (2004) 365 F.3d 755, 768 (Ramirez) [VCR theft], in which Three Strike sentences were held to be disproportionate to the crimes. Defendants case is distinguishable from Carmony because defendant did not passively violate a regulatory provision. As for Ramirez, we first note that decisions of lower federal courts are not binding on this court. (People v. Crittenden (1994) 9 Cal.4th 83, 120, fn. 3.) Of course we may consider decisions of lower federal courts for their persuasive effect (People v. Bradford (1997) 15 Cal.4th 1229, 1305), but even if we agreed with the analysis in Ramirez,the caseis distinguishable. In Ramirez, two members of a Ninth Circuit panel found unconstitutional a Three Strikes sentence for a defendant whose triggering offense was a petty theft with priors. The defendant committed the petty theft when he shoplifted a VCR from a Sears department store. His priors consisted solely of two 1991 convictions for second-degree robbery obtained through a single guilty plea, for which his total sentence was one year in county jail and three years probation and the prior offenses were more accurately described as confrontation petty theft.... (Ramirez, supra, at p. 768.) The force used in these offenses occurred when the defendant attempted to flee the scene, resulting in a minor foot injury to the security guard, and in the other incident the security guard was not harmed when defendant pushed him away as he fled the store. (Ibid.)

In contrast, defendants record included separate prison terms and offenses including burglary, robbery and possession of drugs. He received a four-year sentence for the robbery and an 11-year sentence for the burglary. Thus, Ramirez does not support defendants argument.

2. Punishment for More Serious Crimes in California

Defendant contends his sentence is disproportionate because only first degree murderers would receive a harsher sentence and because his sentence is substantially longer than sentences imposed for second degree murder, rape and child molestation.

First, for purposes of determining the proportionality of appellants sentence, we do not compare his sentence to the sentence imposed on a first-time offender. [I]t is proper to punish a repeat offender more severely than a first-time offender. The proper comparison would be to a recidivist killer, whose punishment would be the same as defendants. (People v. Martinez (1999) 71 Cal.App.4th 1502, 1512.) Second, defendants punishment is based on his status as a third strike offender. [T]he three strikes law punishes not only his current offenses, but also his recidivism. California statutes imposing more severe punishment on habitual criminals have long withstood constitutional challenge. (People v. Cartwright (1995) 39 Cal.App.4th 1123, 1136-1137.)

3. Punishment for Similar Offenses in Other Jurisdictions

Defendant argues his sentence is unconstitutional because most other jurisdictions apply recidivist laws more leniently. Californias Three Strikes law, however, is consistent with the national trend of applying increased sentences to repeat offenders. (People v. Ingram, supra, 40 Cal.App.4th at p. 1416.) While Californias punishment scheme is among the most extreme, this does not mean it is unconstitutional. (People v. Martinez, supra, 71 Cal.App.4th at p. 1516.) This state[]s constitutional consideration does not require California to march in lockstep with other states in fashioning a penal code. (Ibid.) It is enough that the State of California has a reasonable basis for believing that dramatically enhanced sentences for habitual felons advance[s] the goals of [its] criminal justice system in any substantial way. (Ewing v. California, supra, 538 U.S. at p. 28.) Therefore, defendants claim is unsupported.

B. Federal Standard

Defendant also contends his sentence violates the Eighth Amendments prohibition against cruel and unusual punishment. The United States Supreme Court has held that a sentence violates the Eighth Amendment proscription against cruel and unusual punishment if a sentence is grossly disproportionate. (Lockyer v. Andrade, supra, 538 U.S. at p. 71.) Only an extraordinary case will constitute a constitutional violation. (Id. at p. 77). In considering a federal constitutional challenge, the steps of the analysis are virtually identical to those applied by California courts under the state Constitution (People v. Ayon (1996) 46 Cal.App.4th 385, 396, overruled on another ground in People v. Deloza (1998) 18 Cal.4th 585, 593-595), and the federal Constitution affords no greater protection than the state Constitution (People v. Martinez, supra, 71 Cal.App.4th at p. 1510). Our review of United States Supreme Court jurisprudence on this subject reveals no violation of the federal prohibition against cruel and unusual punishment. (See Lockyer v. Andrade, supra, 538 U.S. at pp. 76-77; Ewing v. California, supra, 538 U.S. at pp. 30-31; Rummel v. Estelle (1980) 445 U.S. 263, 266 [life sentence under Texas recidivist statute for obtaining $120.75 by false pretenses after previous convictions for credit card fraud and passing a forged check did not violate federal Constitution].)

DISPOSITION

The judgment is affirmed.

_____________________

Kane, J.

WE CONCUR:

_____________________

Dawson, Acting P.J.

_____________________

Hill, J.

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^[1]People v. Superior Court (Romero) (1996) 13 Cal.4th 497.

^[2] All statutory references are to the Penal Code unless otherwise noted.

^[3] The court instructed: You must follow the law as I explain it to you even if you disagree with it. [] If you believe that the attorneys comments on the law conflict with my instruction, you must follow my instructions.

^[4] The court instructed: A defendant in a criminal case is presumed to be innocent. This presumption requires that the [P]eople prove each element of the crime beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt. [] Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt, because everything in life is open to some possible or imaginary doubt. [] In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all of the evidence that was received throughout the entire trial. [] Unless the evidence proves the Defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty.

^[5] The court instructed: It is your duty to talk with one another and to deliberate in the jury room. You should try to agree on a verdict if you can. Each of you must decide the case for yourself, but only after you have discussed the evidence with the other jurors. [] Do not hesitate to change your mind if you become convinced that you are wrong. But do not change your mind just because the other jurors disagree with you.