P. v. Fosselman

Filed 1/29/07 P. v. Fosselman CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, H029595

Plaintiff and Respondent, (Santa Clara County

Superior Court

v. No. CC463969)

JEROME FOSSELMAN,

Defendant and Appellant.

_____________________________________/

Defendant was convicted by jury trial of second degree robbery (Pen. Code,  211, 212.5, subd. (c)) and carrying a concealed dirk or dagger on his person (Pen. Code, 12020, subd. (a)(4)), and the jury found true the allegation that he had personally used a deadly or dangerous weapon in the commission of the robbery (Pen. Code, 12022, subd. (b)(1)). The court found true allegations that defendant had suffered four prior serious felony convictions (Pen. Code, 667, subds. (a), (b)-(i), 1170.12) and five times served prison terms for felony convictions (Pen. Code,  667.5, subd. (b)). Defendant was committed to state prison to serve an indeterminate term of 25 years to life consecutive to a determinate term of 11 years. On appeal, defendant claims that the trial court erred in giving a prejudicially erroneous instruction on the concealed element of the carrying a concealed dirk or dagger count. He also contends that the trial court abused its discretion in refusing to strike the prior conviction findings. Finally, defendant maintains that his sentence is unconstitutionally cruel and/or unusual punishment. We reject his contentions and affirm the judgment.

I. Factual and Procedural Background

On August 21, 2004, defendant was seen in the back of Marina Foods, a grocery store, trying to put some packages of seafood from the store into some white plastic bags that were not from the store[1] Jose Galdemez, a store employee, told defendant that he cant do that. Galdemez told defendant to go to the front of the store and pay for the seafood, and then the packages could be put in the stores plastic bags. Defendant then tried to take some of the stores paper bags from a back room. Galdemez again rebuffed him. Defendant said okay and walked toward the front of the store pushing a cart with the seafood packages in it. The seafood in defendants cart was priced at $50.73. Galdemez was suspicious, so he contacted his boss.

Christina Chau was working at a counter in the front of the store, beyond the cashiers. She saw defendant pass by the cash registers and leave the store without paying for the items in the shopping cart he was pushing. Chau followed defendant out the door and asked defendant if he had paid for the items. Defendant said nothing and continued to push the cart. Chao saw that the items in the cart had been placed in white plastic bags that were not from Marina Foods. Chau asked him for a receipt, and he ignored her and continued to push the cart away. Chau called for security.

Store security officer Alejandro Madrazo, who was wearing a uniform and a badge, pursued defendant. Madrazo stood in front of the cart and told defendant that he had to return the merchandise. Defendant told Madrazo leave me alone and claimed the merchandise was his own food. Madrazo said just give me the merchandise and [you] can leave. Defendant stepped away from the cart, searched in his pockets and pulled a steak knife out of his pocket. Before defendant removed the knife from his pocket, the knife was entirely concealed in his pocket, and Madrazo could not see any part of the knife.

Defendant warned Madrazo dont come close to me, told Madrazo to leave him alone and swung at Madrazo with the knife. Madrazo was afraid that he would be injured by the knife, so he backed away. Defendant grabbed the cart and started walking away with it. Madrazo grabbed the cart, but defendant swung at him again with the knife so Madrazo let go of the cart. Madrazo continued to follow defendant at a distance, asking him to give up the merchandise. Defendant took the bags out of the cart and crossed the street. Madrazo lost sight of him and returned to the store.

When Chao saw defendant confront Madrazo with a knife, she went back into the store and called 911. San Jose police officer Jeff Gaudin arrived at the scene in his patrol car, and he began speaking to Galdemez in front of the store. As they spoke, defendant came walking toward them, and Galdemez pointed defendant out to Gaudin. Gaudin got out of his car and told defendant come over here. Gaudin looked at defendant from 20 feet away, and he saw no knife on defendants person. Any weapon on defendants person was concealed. Defendant looked at Gaudin, started walking backwards and then turned around and ran. Defendant was carrying a couple of white shopping bags. Gaudin pursued defendant. Defendant reached into his left pocket, pulled out a knife and threw the knife away. The knife had not previously been visible. It had been [c]ompletely concealed as far as [Gaudin] could see . . . . Defendant ran a little further and then dropped the white shopping bags.

Defendant jumped over a six-foot-high fence and then over a wall. Gaudin followed him over the fence but did not make it over the wall and lost sight of defendant. Gaudin radioed other officers and told them defendants location and direction of travel. A few minutes later, San Jose police officer Mario Tatom approached defendant nearby, where defendant was crouched behind a park bench, and defendant ran. Tatom told defendant to stop, but defendant continued to run. Tatom chased defendant. Defendant ran into a busy street, forcing several cars to brake suddenly. Tatom then used his tazer to disable defendant, and he took defendant into custody.

Defendant was charged by information with second degree robbery (Pen. Code, 211, 212.5, subd. (c)), assault with a deadly weapon (Pen. Code, 245, subd. (a)(1)) and carrying a concealed dirk or dagger on his person (Pen. Code, 12020, subd. (a)(4)), and it was alleged that he had personally used a deadly or dangerous weapon in the commission of the robbery (Pen. Code, 12022, subd. (b)(1)). It was further alleged that he had suffered four prior serious felony convictions (Pen. Code, 667, subds. (a), (b)-(i), 1170.12) and had five times served prison terms for felony convictions (Pen. Code, 667.5, subd. (b)). The prior conviction and prison prior allegations were bifurcated at defendants request, and defendant waived his right to a jury trial on these allegations.

Defendant testified at trial that he had entered the store intending to steal and had taken fish, shrimp and a couple crabs from the store without paying for them. He denied that Galdemez had spoken to him, and he claimed that no one in the store said nothing to him before he left the store. When Chao asked him if he had a receipt, defendant claimed he said yeah and continued to walk away. Defendant testified that three men, Galdemez, Madrazo and a third man, ran up to him in the parking lot. He got scared, so he started running.

Defendant claimed that he didnt even know I had the knife actually. The knife was tucked into his belt at his waistband so that the upper half of the handle of the knife was visible above his waist and the lower half of the handle and the blade were covered by his belt. It was where you cant tell it because it blends in with the belt. When he remembered I had the knife, he turned around, pulled the knife out and twice displayed it to the three men. Defendant denied that any of these men spoke to him.

Defendant testified that the men stopped about 20 feet away and came no closer. Defendant denied having slashed or swung the knife at anyone. He pulled the cart along until he reached the street, where he removed the bags from the cart and ran across the street. When he saw a police officer arrive, he threw away the knife. He dropped the bags when the officer gave chase.

The jury deliberated for two hours and 15 minutes. It returned guilty verdicts on the robbery and concealed weapon counts and found the personal use allegation true. The jury found defendant not guilty of the assault with a deadly weapon count and of its lesser included offense of simple assault.

After a court trial on the prior conviction and prison prior allegations, the court found the allegations true. The court declined defendants request that it strike the prior conviction findings under Penal Code section 1385, but it did strike the punishment for the prison priors under Penal Code section 1385. Defendant was committed to state prison to serve an indeterminate term of 25 years to life for the robbery count, one year for the weapon enhancement and 10 years for the two Penal Code section 667, subdivision (a) prior serious felony conviction enhancements. A concurrent term was imposed for the carrying a concealed dirk or dagger count. Defendant filed a timely notice of appeal.

II. Discussion

A. Instruction on Concealed Element

Defendant claims that the trial court prejudicially erred in instructing the jury with CALJIC 12.41 on the elements of the carrying a concealed dirk or dagger count because that instruction describes the concealment element as substantially concealed rather than concealed.

1. Background

The court included the information in its instructions to the jury. The information charged that the crime of carrying a dirk or dagger concealed on the person in violation of Penal Code Section 12020 (a)(4), a felony, was committed by [defendant] who did carry concealed upon his person a dirk and a dagger.[2] (Italics added.) The trial court instructed the jury with CALJIC 12.41. Every person who carries concealed upon his or her person any dirk or dagger is guilty of a violation of Penal Code section 12020, subdivision (a)(4), a crime. []  . . . []  . . . [] In order to prove this crime, each of the following elements must be proved: [] One, a person carried a dirk or dagger; two, the weapon was substantially concealed upon his person; and, three, that person knowingly and intentionally carried a knife or other device capable of ready use as a stabbing weapon that might inflict great bodily injury or death. [] A knife carried in a sheath which is worn openly suspended from the waist of the wearer is not a concealed weapon. (Italics added.)

Defendants trial counsel conceded in his closing argument to the jury that defendant was guilty of the carrying a concealed dirk or dagger count. He committed a theft. He committed a felony, possession of a weapon. He did not commit a robbery, and he did not commit an assault with a deadly weapon. In the prosecutors closing argument, he said: Counsel admitted the the weapon charge so I dont I dont need to talk about that. Skip all that.

2. Analysis

Assuming arguendo that the trial courts instruction to the jury was erroneous, any error was not prejudicial here.

The beyond-a-reasonable-doubt standard of Chapman requir[es] the beneficiary of a [federal] constitutional error to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained. (Chapman, supra, 386 U.S. at p. 24, 87 S.Ct. 824.) To say that an error did not contribute to the ensuing verdict is . . . to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record. (Yates v. Evatt (1991) 500 U.S. 391, 403, 111 S.Ct. 1884, 114 L.Ed.2d 432.) Thus, the focus is what the jury actually decided and whether the error might have tainted its decision. That is to say, the issue is whether the . . . verdict actually rendered in this trial was surely unattributable to the error. (Sullivan v. Louisiana (1993) 508 U.S. 275, 279, 113 S.Ct. 2078, 124 L.Ed.2d 182.) (People v. Neal (2003) 31 Cal.4th 63, 86.)

In this case, the alleged misdescription of the concealment element of this offense was unimportant in relation to everything else the jury considered on the issue in question and therefore the jurys verdict in this trial was surely unattributable to the alleged error.

Defendant testified at trial that he was carrying a knife on his person. The only possible issue on this count was whether the knife was concealed on defendants person. Penal Code section 12020, subdivision (a) does not purport to require absolute or complete concealment. It requires that the knife be concealed, and it specifically states that [k]nives carried in sheaths which are worn openly suspended from the waist of the wearer are not concealed within the meaning of this section. (Pen. Code, 12020, subds. (a)(4), (d).) Conceal means to prevent disclosure or recognition of or to place out of sight. (Websters Collegiate Dict. (10th ed. 1999) p. 238.) Thus, a knife is concealed if it is place[d] out of sight or its disclosure or recognition is prevent[ed.][3]

Madrazo testified that the knife was concealed until defendant removed it from his pocket to intimidate Madrazo. Gaudin testified that the knife was concealed in defendants pocket until defendant removed it from his pocket and threw it away. There was no ambiguity or challenge to their testimony that the knife was out of sight on defendants person until defendant pulled it out. And, although defendant testified that a portion of the knifes handle visibly protruded above his waist, defendant also testified at trial that the knife was where you cant tell it because it blends in with the belt. By admitting that the presence of the knife was obscured by his belt, defendant conceded that the knife was concealed. Finally, defendants trial counsel conceded that defendant was guilty of this count.

Under these circumstances, the alleged misdescription of the concealed element was unimportant and the jurys verdict on this count was surely unattributable to it. No prejudicial error occurred.

B. Sentencing

Defendant contends that the trial court abused its discretion in refusing to strike the prior conviction findings, and he argues that his sentence is cruel or unusual punishment. Because defendants criminal history is relevant to both of these contentions, we recount that history at the outset.

1. Defendants Criminal History

Defendant has a 30-year history of committing crimes involving violence. In 1975, when defendant was 19 years old, he pleaded guilty to battery and was placed on probation. In October 1979, defendant, at the age of 23, approached a woman who was walking to a bus stop, held a knife to her back and tried to take her to a secluded spot. She ran away and summoned assistance from men in a passing car. The men pursued defendant, and a fight ensued. Defendant punched one of the men and injured the mans jaw.

In 1980, while the 1979 charges were pending, defendant drove under the influence and evaded and resisted arrest. He was placed on probation for the 1980 offenses. In November 1982, defendant committed a bank robbery during which he threatened the teller that he would blow your fucking head off if she did not give him all of your money. He was convicted of battery with serious bodily injury (Pen. Code, 242), false imprisonment (Pen. Code, 236) and assault with a deadly weapon (Pen. Code, 245, subd. (a)) for the 1979 offenses and robbery for the 1982 offense, and he was committed to state prison

Defendant was paroled in November 1984. In November 1985, defendant was arrested for possession of cocaine. Defendant admitted that he was a cocaine addict and that he had been using cocaine daily since 1976. He was convicted and again committed to state prison. After his release on parole, he violated his parole and was returned to prison. Defendant was again paroled in June 1988. He was arrested in January 1989. His parole was revoked, and he was returned to prison. He was paroled again in March 1989, but again arrested in April 1989. His parole was revoked again, and he was returned to prison. He was paroled in November 1989, and discharged from parole in October 1990.

In early 1993, defendant tried to take $160 worth of merchandise from a Nordstrom. When security officers intervened, defendant punched a female security officer in the face. He pleaded guilty to petty theft with priors (Pen. Code, 666) and no contest to misdemeanor battery (Pen. Code, 242, 243, subd. (a)), and he was committed to state prison for a two-year term. He was paroled in January 1994. In March 1995, defendant was arrested for possession of cocaine base. He resisted his arrest. His parole was revoked. He pleaded no contest to the cocaine possession count and was committed to state prison. Defendant was paroled in December 1997. In May 1998, defendant was returned to prison for a parole violation. He was paroled again in November 1998. Defendant was arrested again in January 1999. His parole was revoked, and he was returned to prison. Defendant was paroled in September 1999. His parole was readily revoked, and he was returned to prison within a couple of months.

Defendant was again paroled in April 2000. In May 2000, defendant was arrested for grand theft. He had taken $981 worth of merchandise from a Home Depot. He was convicted by plea and committed to state prison. Defendant was paroled in April 2003. He was arrested in August 2003, and his parole was revoked. He was again paroled in January 2004. Defendant was on parole when he committed the current offenses in August 2004. Prior to the current convictions, defendant had already accumulated eight felony convictions and twenty-three misdemeanor convictions.

2. Courts Refusal To Strike Prior Conviction Findings

[A] courts 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).) [A] trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it. (Carmony, at p. 377.) In deciding whether to dismiss or strike a prior conviction allegation, the court may not focus solely on the nature and circumstances of the defendants current offense to the exclusion of all other factors. (Carmony, at p.  379.) The court must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the 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. (Carmony, at p. 377.)

Because the law creates a strong presumption that the sentence required by the Three Strikes Law is both rational and proper[,] . . . a trial court will only abuse its discretion in failing to strike a prior felony conviction allegation in limited circumstances. (People v. Carmony, supra, 33 Cal.4th at p. 378.) Such circumstances may occur where the trial court is unaware of its discretion or considers impermissible factors or where the failure to strike the allegations [may, as a matter of law,] produce [ ] an arbitrary, capricious or patently absurd result under the specific facts of a particular case. (Carmony, at p. 378, internal quotation marks omitted.) 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. (Carmony, at p. 378.)

In this case, the trial court was aware of its discretion, and defendant does not claim that the court considered impermissible factors. Our deferential review of the trial courts ruling is limited to determining whether no reasonable person could have concluded that defendant fell within the spirit of the Three Strikes Law. Such a determination depends on how a reasonable person would view the nature and circumstances of defendants present felonies, his prior convictions and his background, character and prospects.

Defendants present felonies were quite serious. While defendants initial intent may have been to steal food, his use of a knife against an unarmed security officer to retain the merchandise coupled with his dangerous flight from the police into a busy street exemplified defendants disregard for others. Defendants commission of this armed robbery just eight months after being released from prison on parole confirmed that he is incapable of controlling his criminal behavior.

Defendants lengthy history of crime and imprisonment places him firmly within the spirit of the Three Strikes Law. As the prosecutor argued, defendant is the person that the three strikes law was made for, your honor.[4] Over three decades, defendant has committed crime after crime and parole violation after parole violation. And this is all the more appalling since he has rarely been out of prison for a significant period of time. Since 1979, defendant has only once (from 1989 to 1993) been free of prison or jail custody for more than a year. It is true that his serious felony prior convictions were suffered quite long ago, but he has repeatedly demonstrated that he has not forsworn either violence or crime. After serving a lengthy prison term for his serious felony convictions and even achieving a discharge from parole in 1990, defendant returned to using violence in 1993, when he battered a female security officer in the course of a theft. He followed this up by resisting arrest in 1995. Defendants repeated parole violations over the last decade and his use of a weapon in the current offenses reflect his incorrigible criminality.

Defendants long history of substance abuse does not operate to remove him from the spirit of the Three Strikes Law. If it is truly his substance abuse that fuels his criminality, his inability to make the slightest progress in controlling either the cause or the effect reflects poorly on his prospects. Our view of defendants character must be informed by his long history of violence and theft-related crimes. He demonstrates no respect for the safety of others or for their property.

In sum, it is difficult to imagine how any reasonable person could conclude that defendants current offenses and lengthy history of violent criminality did not bring him firmly within the spirit of the Three Strikes Law. We find no abuse of discretion in the trial courts conclusion that defendant falls within the spirit of the Three Strikes Law.

3. Cruel and/or Unusual Punishment

Defendant contends that his sentence amounts to cruel and/or unusual punishment under the California Constitution and under the Eighth Amendment of the U.S. Constitution.[5]

a. The Eighth Amendment

Defendants challenge to his sentence under the Eighth Amendment of the U.S. Constitution cannot prevail in light of the U.S. Supreme Courts decision in Ewing v. California (2003) 538 U.S. 11. Ewing was a 5-4 decision in which the U.S. Supreme Court rejected a claim that a life sentence imposed under Californias Three Strikes Law for a current offense of grand theft violated the Eighth Amendment. Two justices joined the majority on the basis that the Eighth Amendments prohibition on cruel or unusual punishment does not include a ban on grossly disproportionate sentences. (Ewing, at pp. 31-32 , concurring opinions of Scalia, J. and Thomas, J.) The other three justices in the majority concluded that Ewings sentence was not grossly disproportionate under the Eighth Amendment.

Ewing, a 38-year-old with a 16-year criminal history, had suffered prior convictions for burglary, theft, battery, robbery, possession of a firearm and other minor offenses, but he had been committed to state prison just once. The grand theft offense occurred ten months after his release on parole following his service of about six years of his prison term. (Ewing v. California, supra, 538 U.S. at p. 18.) No violence or weapons were involved in the grand theft offense. Ewing took three golf clubs from a pro shop and was apprehended by police in the parking lot. (Ewing, at pp. 17-18.)

The U.S. Supreme Courts analysis of the proportionality of Ewings punishment is equally applicable to defendant. In weighing the gravity of Ewings offense, we must place on the scales not only his current felony, but also his long history of felony recidivism. Any other approach would fail to accord proper deference to the policy judgments that find expression in the legislatures choice of sanctions. In imposing a three strikes sentence, the States interest is not merely punishing the offense of conviction, or the triggering offense: [I]t is in addition the interest . . . in dealing in a harsher manner with those who by repeated criminal acts have shown that they are simply incapable of conforming to the norms of society as established by its criminal law. (Ewing v. California, supra, 538 U.S. at p. 28.)

Ewings sentence is justified by the States public-safety interest in incapacitating and deterring recidivist felons, and amply supported by his own long, serious criminal record. Ewing has been convicted of numerous misdemeanor and felony offenses, served nine separate terms of incarceration, and committed most of his crimes while on probation or parole. His prior strikes were serious felonies including robbery and three residential burglaries. To be sure, Ewings sentence is a long one. But it reflects a rational legislative judgment, entitled to deference, that offenders who have committed serious or violent felonies and who continue to commit felonies must be incapacitated. The State of California was entitled to place upon [Ewing] the onus of one who is simply unable to bring his conduct within the social norms prescribed by the criminal law of the State. (Ewing v. California, supra, 538 U.S. at pp. 29-30.)

The record before us reflects that the justification for incapacitating defendant is much greater than the justification for incapacitating Ewing, and therefore the fact that Ewings sentence was found to be not grossly disproportionate under the Eighth Amendment necessarily means that defendants sentence is not grossly disproportionate under the Eighth Amendment. Ewing was 38 years old and had a 16-year criminal history when he committed the grand theft offense. Defendant was nearly 50 years old and had a nearly 30-year criminal history when he committed his current offenses. Ewing had only been to prison once before, but defendant has maintained his criminal ways after serving five separate prison terms. Defendants criminal history is more violent than that of Ewing. Ewing had one prior misdemeanor battery conviction, one prior robbery conviction and two prior convictions that involved weapons. Defendant had at least three prior convictions for battery, one as a felony, and prior convictions for assault with a deadly weapon, resisting arrest and robbery. Defendants current offenses were also much more serious than Ewings grand theft. Ewings grand theft offense was not a serious felony and involved no weapon and, apparently, no attempt to flee from the police. Defendants current offenses included both the serious felony of robbery and carrying a concealed weapon, involved his personal use of a knife on an unarmed security officer and culminated in his dangerous flight from a police officer into a busy roadway. Since the U.S. Supreme Court held that Ewings sentence did not violate the Eighth Amendment, it is apparent that defendants sentence also does not violate the Eighth Amendment.

b. The California Constitution

A punishment may violate article I, section 17 of the California Constitution 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. (People v. Ordonez (1991) 226 Cal.App.3d 1207, 1236, citations and quotation marks omitted.) The relevant criteria for evaluating whether a particular punishment violates the California Constitution are set forth in People v. Dillon (1983) 34 Cal.3d 441 and In re Lynch (1972) 8 Cal.3d 410.

Lynch established that when a defendant under an indeterminate sentence challenges that sentence as cruel or unusual punishment in violation of the California Constitution, the test is whether the maximum term of imprisonment permitted by the statute punishing his offense exceeds the constitutional limit . . . . (In re Lynch, supra, 8 Cal. 3d at p. 419.) In this case, the maximum term imposed on defendant is life imprisonment. Thus, for purposes of comparison, we must consider whether a life sentence is unconstitutionally disproportionate on the facts of this case.

In Lynch, the California Supreme Court offered three techniques for evaluating whether a particular punishment is excessive. The first of these techniques involves an examination of the nature of the offense and/or the offender, with particular regard to the degree of danger both present to society. (In re Lynch, supra, 8 Cal.3d at p. 425.) The second technique requires a comparison of the punishment prescribed here with that prescribed for more serious offenses. (Lynch, at p. 426.) The reasoning behind this technique is that, because the Legislature may be depended upon to act with due and deliberate regard for constitutional restraints in prescribing the vast majority of punishments set forth in our statutes, the existence of more serious crimes punished less severely than the offense in question may make the challenged penalty appear suspect. (Id. at p. 426.) The third technique involves a comparison of the penalty prescribed in California with the penalty prescribed in other jurisdictions. Again, the purpose of this inquiry is to see if the challenged penalty is disparate in comparison to the punishments decreed for the offense in a significant number of those [other] jurisdictions . . . . (Lynch, at p. 427.)

i. The Nature of the Offenses and the Offender

Our inquiry into the nature of the offenses necessarily encompasses 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 defendants involvement, and the consequences of his acts. (People v. Dillon, supra, 34 Cal.3d at p. 479.) We look at the offenses both in the abstract and as they were actually committed. (Ibid.)

Defendants offenses, both in the abstract and as they were committed, were serious and disturbing. Robbery is very serious felony, and it is all the more serious when it is coupled with the use of a concealed weapon. In this case, defendant had multiple opportunities to abandon the merchandise, but instead he chose to use his concealed knife to intimidate the unarmed security guard who pursued him. He fled from one police officer over both a fence and a wall, and he led a second police officer on a chase into traffic, during which he endangered both motorists and the police officer. These circumstances aggravate the nature of his offenses.

When defendants criminal history is taken into account, his offenses and his nature provide strong support for the constitutional validity of the life sentence imposed by the trial court. Defendants nature includes his individual culpability as shown by such factors as his age, prior criminality, personal characteristics, and state of mind. (People v. Dillon, supra, 34 Cal.3d at p. 479, italics added.) We have already recounted defendants extremely lengthy history of criminality. All attempts to reform his conduct have been utterly unsuccessful. He has suffered eight prior felony convictions and twenty-three prior misdemeanor convictions, served five separate prison terms and numerous jail terms and repeatedly violated his parole. His current offenses were serious, involved the use of a knife and were committed while he was on parole. Defendants criminal record proves beyond doubt that he is unable to conform his conduct to the law regardless of the consequences. Removing him from our community is the only way to ensure that he will no longer be free to threaten the safety and security of citizens and their property.

A punishment violates the California Constitutions prohibition on cruel or unusual punishment only if it shocks the conscience and offends fundamental notions of human dignity. (Ordonez, supra, at p. 1236.) In light of his past and current criminal conduct, defendants life term is not shocking or undignified.

ii. Punishment For More Serious Offenses

The punishment imposed on defendant is based in great part on the fact that he previously committed serious felonies. He would have received a life sentence if he had committed any new felony offense. In this context, it makes little sense to compare his punishment to the punishments specified by the Legislature for more serious offenses. The Legislature has decided that any offender who has twice committed a serious felony shall receive an indeterminate life term for his or her commission of any new felony offense. Such offenders are not similarly situated with non-recidivists and therefore their punishment cannot be compared to that imposed on those who do not have a record of multiple prior serious felonies.

Because the punishment imposed on defendant is applicable only if the offender has suffered two prior serious felony convictions, the punishment specific for more serious offenses, to which we must compare this punishment, would necessarily also be the punishment specified for offenses committed by recidivists that fall under the penalty provisions of Penal Code sections 667, subdivisions (b) to (i) and 1170.12. In California, all of those offenders would be sentenced under this sentencing scheme and would receive life terms. Consideration of this fact under this prong of the analysis does not support defendants claim that his sentence violates the California Constitution.

iii. Punishment for Offenses in Other Jurisdictions

This court exhaustively considered a similar contention in People v. Martinez (1999) 71 Cal.App.4th 1502. In Martinez, a life term had been imposed for possession of methamphetamine. The defendant asserted that his life sentence was unconstitutional because the statute under which California imposed this sentence is among the most extreme in the nation. This court catalogued the recidivist statutes in each state and concluded that, while Californias punishment scheme is among the most extreme, this does not compel the conclusion that it is unconstitutionally cruel or unusual. (Martinez, at pp. 1512-1516.) As this court noted, California is not required to march in lockstep with other states in fashioning a penal code or to conform to the least common denominator of penalties nationwide. (Martinez, at p. 1516.) We adopt that analysis. This factor, like the others, does not support a conclusion that defendants life term is cruel or unusual punishment under the California Constitution.

III. Disposition

The judgment is affirmed.

_______________________________

Mihara, Acting P.J.

WE CONCUR:

_____________________________

McAdams, J.

_____________________________

Duffy, J.

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by San Diego County Property line attorney.

[1] Defendant admitted at trial that these were 7-Eleven bags that he had brought into the store.

[2] The information was also read to the jury at the commencement of the trial.

[3] At least one case has held that this offense is committed even if a portion of the knifes handle is visible. The mere fact that some portion of the handle may have been visible makes it no less a concealed weapon. A defendant need not be totally successful in concealing a dirk to be guilty of violation of Penal Code section 12020, subdivision (a). (People v. Fuentes (1976) 64 Cal.App.3d 953, 955.)

[4] The court agreed. I just dont believe that the defendant falls outside the spirit of the three strikes law.

[5] Defendants trial counsel objected below [j]ust for the record, . . . to the sentence under cruel and unusual punishment. He made no argument on the issue to the trial court, and the trial court made no explicit ruling on the objection.