P. v. Hillard

Filed 4/19/06 P. v. Hillard CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Michael D. Wellington, Judge. Affirmed with directions.

Maurice Hillard and Charles Calhoun appeal from judgments convicting them of various offenses associated with a spree of ATM thefts. They raise several challenges to the sufficiency of the evidence and to the trial court's evidentiary rulings. They also challenge their sentences. We reject their arguments and affirm the judgments. However, we remand the matter for a correction in Calhoun's abstract of judgment.

FACTUAL AND PROCEDURAL BACKGROUND

After a jury trial, Calhoun and Hillard were convicted of one count of conspiracy to commit grand theft, six counts of unlawful taking or driving of a vehicle, four counts of burglary, two counts of grand theft, and one count of attempted grand theft. All counts arose from a crime spree involving thefts or attempted thefts from ATM machines in San Diego county in 2003. They were also convicted of receiving stolen property and resisting an officer. Additionally, Calhoun was convicted of evading an officer with reckless driving and harming or interfering with an officer's animal. The jury acquitted defendants of one count of attempted burglary of a 7-Eleven store.

The modus operandi used by defendants involved stealing a large stake bed truck with a lift gate, wrapping an ATM machine with heavy chains and pulling it from its location with the truck, and then using drilling devices to open the ATM and steal the cash. Defendants would eventually abandon the truck and ATM machine, and steal a different truck to commit another ATM theft. Police detectives observed that defendants' method of operation revealed a methodical, professional approach to the crimes.

The evidence presented depicted the following series of crimes committed by defendants. On June 7, 2003, they unlawfully took or drove a Ford F-350 truck belonging to ThyssenKrupp Elevators (ThyssenKrupp) (count 9), and used it on August 5, 2003, to commit burglary and grand theft involving an ATM at the San Diego Hall of Champions (counts 11 and 12) and on September 20, 2003, to commit burglary at Dominic's Deli (count 13). On September 20, 2003, they unlawfully took or drove a Ford F-450 belonging to Sherwin Williams Company (count 14) and used it on September 22, 2003, to commit burglary and grand theft involving an ATM at a Chevron gas station (counts 15 and 16). On about September 27, 2003, they unlawfully took or drove a Ford F-450 from Davies Electric Contracting Engineers (Davies Electric) (count 17) and used it on October 1, 2003, to commit burglary and attempted grand theft involving an ATM at Beacon Gas station (counts 18 and 19).

Evidence also tied defendants to the unlawful taking or driving of a mid-size Nissan truck on October 25, 2001 (count 3); unlawful taking or driving of a Ford F-350 belonging to ICI Paints on July 18, 2003 (count 10); unlawful taking or driving of a Ford F-350 belonging to United Rentals on October 7, 2003 (count 2); and receiving stolen license plates from various victims on October 9, 2003 (count 6).

Defendants were arrested on October 9, 2003, after they were tracked through a "Lojack" system installed in the stolen United Rentals truck. The police observed the stolen United Rentals truck parked at an industrial complex on Sorrento Valley Boulevard and set up a surveillance operation. At about 12:25 a.m. on October 9, 2003, two men (later identified as Calhoun and Hillard) were seen loading equipment from the stolen Nissan truck into the United Rentals truck. The men then drove away in the United Rentals truck.

At about 1:25 a.m., a sheriff's deputy picked up the Lojack signal from the United Rentals truck and saw the truck exiting a 7-Eleven store parking lot.^[1] A high speed chase

ensued near and in the city of Escondido, with the driver of the United Rentals truck (Calhoun) running through red lights, traveling at speeds of at least 70 or 75 miles per hour in a 35- or 45-mile-per-hour zone, and using both sides of the road in an attempt to evade the officers. The chase continued onto State Route 78, where Calhoun drove in an erratic manner and almost caused collisions with other vehicles. After exiting the freeway and continuing to drive recklessly on the streets of Escondido, the United Rentals truck crashed into a parked vehicle. Calhoun and Hillard attempted to flee on foot and were eventually apprehended by the officers. During his attempt to flee, Calhoun beat a police dog over the head with a wooden fence slat as the dog was biting Calhoun's leg.

The Nissan truck left by defendants at the industrial complex on October 9, 2003, had been stolen in October 2001 from a strip mall parking lot in Torrance, California. The events on the night of defendants' arrest formed the evidentiary basis for their convictions of conspiracy to commit grand theft (count 1); unlawful taking or driving of the United Rentals truck (count 2); unlawful taking or driving of the Nissan truck (count 3); resisting a police officer (count 8); and (as to Calhoun) evading an officer with reckless driving (count 5) and harming or interfering with an officer's animal (count 7).

Evidence supporting the remaining counts of receiving stolen property, unlawful taking or driving of a vehicle, burglary, grand theft and attempted grand theft arose from the common modus operandi combined with various items of circumstantial evidence. We summarize some of this evidence. To support receiving stolen property from various victims (count 6): various stolen license plates were found in the Nissan truck left by defendants at the industrial complex. To support the taking of the ThyssenKrupp truck (count 9): a ThyssenKrupp hard hat that had been stored in the stolen ThyssenKrupp truck was found in the Nissan truck. To support the unlawful taking of the ICI Paints truck (count 10): a license plate registered to ICI Paints (that was stolen at the same time as the ICI Paints truck) was found in the Nissan truck. To support the Hall of Champions burglary and grand theft (counts 11 and 12): a rack from the stolen ThyssenKrupp truck was found outside the Hall of Champions building the morning after the theft. Further, a handwritten list of ATM locations which included the Hall of Champions location was found at Hillard's residence. To support the burglary at Dominic's Deli (count 13): a security guard observed a truck leave the parking lot near the deli on the night of the burglary that looked like the stolen ThyssenKrupp truck. To support the taking of the Sherwin Williams truck and the burglary and theft at the Chevron station (counts 14, 15, and 16): a surveillance video at the Chevron station depicted a truck with the Sherwin Williams logo and showed two persons who (the prosecution argued) matched defendants in size and shape. To support the taking of the Davies Electric truck and the Beacon Gas station burglary and attempted theft (counts 17, 18 and 19): at the time of the burglary, a witness saw two males at the gas station and a truck with the Davies Electric logo parked in front of the station. A surveillance video showed a person who (the prosecution argued) had the same body type as Calhoun.

The police also found various items in the United Rentals truck likely used in the ATM thefts, including a metal chain coiled in a bucket, a dolly, and a crowbar. When the United Rentals truck was stolen, it had been parked behind a locked fence at the Davies Electric yard; the padlock and chain that had secured the fence at the Davies Electric yard were found in the Nissan truck.^[2] In the Nissan the police also found such items as bolt cutters and discs for cutting metal, pry bars, a chisel, and metal shavings that were similar to those observed around the stolen ATM machines. Items found at Hillard's residence included a lock-picking kit, a police communications scanner, and drilling tools including a specialized tool for drilling through metal. The police also found instructional materials discussing such matters as bypassing burglar alarms and locks, drilling through safes, breaking into vehicles, and money laundering. One section of the instructional materials described the modus operandi used by defendants; i.e., using a heavy chain to wrap around an ATM and pulling the ATM out with a stake bed truck. Cell phone records showed 474 phone calls between Calhoun's and Hillard's cell phones during October 2002 to October 2003.

DISCUSSION

I. CONVICTIONS

A. Substantial Evidence

Defendants raise several specific arguments to challenge the sufficiency of the evidence to support some of the convictions. We will address each argument in turn.

In reviewing a challenge to the sufficiency of the evidence, we consider the entire record in the light most favorable to the judgment to determine whether there is

substantial evidence such that a reasonable trier of fact could find guilt beyond a reasonable doubt. (People v. Maury (2003) 30 Cal.4th 342, 396.) The same standard applies to cases in which the prosecution relies mainly on circumstantial evidence, and on appeal we "must accept logical inferences that the jury might have drawn from the circumstantial evidence." (Ibid.)

Defendants assert that, except for the convictions pertaining to the night of their arrest, there was insufficient evidence to support the convictions of unlawful taking or driving of a vehicle, burglary, grand theft, and attempted grand theft. To support this argument, they point to the fact that there was no eyewitness who saw them at the sites associated with the crimes and no eyewitness who saw the vehicles at or near their homes. The argument is unavailing. A conviction may be supported by circumstantial evidence, as long as the jury concludes the circumstantial evidence is only reasonably susceptible of an inference of guilt. (See People v. Perez (1992) 2 Cal.4th 1117, 1124.) On appeal, we affirm the judgment if the circumstances reasonably justify the jury's finding, even if the circumstances might also justify a contrary finding. (Ibid.) There is no requirement that a crime be proven by eyewitness testimony. As set forth in our delineation of the facts, the circumstances support the jury's verdicts, and thus the lack of eyewitnesses does not provide a basis to reverse the challenged convictions.

Defendants also challenge their convictions of unlawful taking or driving of the Nissan truck (count 3), noting that the information alleged they committed this crime in October 2001 (when the truck was stolen), whereas they were not seen in the vehicle until two years later in October 2003 (the night of their arrest). The police investigation revealed that the Nissan truck used by defendants was displaying license plates that belonged to another vehicle (a Chevrolet). The correct license plates for the Nissan were found inside the vehicle under the front passenger seat. From this evidence, the jury could reasonably infer that defendants were involved in the initial taking of the Nissan, because they still had in their possession the original plates that accompanied the vehicle at the time of the taking in 2001. Drawing all reasonable inferences in favor of the judgment, the evidence is sufficient to support a finding that defendants unlawfully took or drove the Nissan truck in 2001.

Similarly, defendants challenge their convictions of unlawful taking or driving of the ThyssenKrupp truck and the ICI Paints truck (counts 9 and 10) based on the time gap between the alleged taking and the commission of offenses tying defendants to the unlawful taking. They note that they were charged with unlawful taking or driving of the ThyssenKrupp truck on June 7, 2003, whereas the truck was not associated with burglaries until August 5, 2003 (San Diego Hall of Champions) and September 20, 2003 (Dominic's Deli). Further, they were charged with unlawful taking or driving of the ICI Paints truck on July 18, 2003, whereas the license plate associated with ICI Paints was not found in the Nissan truck until after their arrest on October 9, 2003. They posit that because several months passed between the alleged taking of these vehicles and the emergence of evidence incriminating them, the record cannot support these two unlawful taking convictions. We are not persuaded. Particularly given the evidence showing a pattern of criminal conduct over a several-month time period, the time lapse between the takings and the incriminating evidence was not so long as to defeat a reasonable inference that defendants were the ones who took the trucks for the purpose of using them to perpetrate additional crimes.

Calhoun argues for reversal based on an assertion that the evidence tying him to the crimes (except for the crimes committed on the night of the arrest) was weaker than it was as to Hillard. The argument fails because the jury could reasonably conclude from all the circumstances that Calhoun was Hillard's accomplice throughout the crime spree. For example, the jury could rely on such facts as Calhoun's joint operation with Hillard on the night of their arrest (during which Calhoun was driving the large stake bed truck); the professionalism exhibited throughout the offenses suggesting an established relationship; the observation of the shape of the men in the videos; and the close association between the two defendants evinced by their cell phone calls.

Defendants have raised no argument warranting reversal based on insufficient evidence.

B. Other Crimes Evidence

As we shall detail below, defendants challenge two of the trial court's evidentiary rulings on the basis that the rulings improperly allowed the jury to hear evidence about their other crimes not charged in the instant proceedings.

Evidence of a defendant's other crimes is generally inadmissible if its only relevance is to show the defendant has a bad character or a propensity to commit crimes. (People v. Catlin (2001) 26 Cal.4th 81, 145.) The rationale for excluding other crimes evidence arises from the danger that the jury will convict merely because of the defendant's criminal propensity to commit crimes regardless of whether guilt is proven beyond a reasonable doubt. (People v. Alcala (1984) 36 Cal.3d 604, 630-631.) However, "there are facts other than criminal propensity to which other other-crimes evidence may be relevant." (People v. Catlin, supra, 26 Cal.4th at p. 145.) Thus, Evidence Code section 1101, subdivision (b) provides that other crimes evidence is admissible "when relevant to prove some fact . . . other than [the defendant's] disposition to commit such an act." (See People v. Catlin, supra, 26 Cal.4th at pp. 145-146.)

However, because of the dangers associated with propensity evidence, after the trial court determines the other crimes evidence is relevant it must then exercise its discretion under Evidence Code section 352 to ascertain whether the probative value is substantial and not outweighed by the probability that the evidence would be unduly prejudicial, confusing, or misleading to the jury. (People v. Kipp (1998) 18 Cal.4th 349, 371.) Evidence is unduly prejudicial if it is likely to "provoke emotional bias against a party or to cause the jury to prejudge the issues upon the basis of extraneous factors." (People v. Jenkins (2000) 22 Cal.4th 900, 1008; People v. Branch (2001) 91 Cal.App.4th 274, 286.) Further, the potential for prejudice may outweigh the probative value of the evidence when the uncharged crimes evidence is merely cumulative on an issue not reasonably subject to dispute. (People v. Ewoldt (1994) 7 Cal.4th 380, 406; People v. Balcom (1994) 7 Cal.4th 414, 423.) We review the trial court's resolution of these issues for abuse of discretion. (People v. Kipp, supra, 18 Cal.4th at p. 371.)

1. Admission of Reference to Previous Legal Proceeding Involving Shoeprint Evidence

a. Background

In pretrial proceedings, the parties discussed the 1994 convictions suffered by defendants in a case involving their joint commission of several burglary offenses. After the defense objected to admission of this other crimes evidence, the prosecutor decided not to seek its admission. However, the prosecutor advised the court and defense counsel that in the 1994 case, shoeprint evidence was obtained against defendants and defendants learned about the methodology for obtaining shoeprint evidence. In the current case, no matching shoeprint evidence was found. The prosecutor stated that if defense counsel raised the lack of shoeprint evidence as a defense in the current case, the prosecutor would proffer rebuttal evidence indicating that defendants learned about shoeprint matching techniques during the 1994 case and developed strategies to avoid any matches during their current crimes.

At trial, during cross-examination of an investigating detective, Calhoun's counsel elicited testimony that there were no conclusive shoe matches between shoeprints found at the scene of the crimes and Calhoun's shoes. Calhoun's counsel then asked the detective to describe the testing that was done to determine if there was a match. The prosecutor objected. The court called for a sidebar discussion and asked Calhoun's counsel whether she was intentionally raising the shoeprint issue given the potential admission of the 1994 shoeprint evidence that might ensue. Calhoun's counsel indicated she was "not thinking about it as to [the prior crimes evidence]," but "was just thinking about it as to this case because . . . they tested [shoeprints] as to this case." Thereafter, defense counsel asked no more questions on the shoeprint issue.

Based on Calhoun's counsel elicitation of testimony indicating there were no shoeprint matches, the prosecutor argued he should be allowed to present the 1994 shoeprint evidence. The prosecutor proffered evidence suggesting that as a result of the shoeprint information they acquired in their 1994 trial, defendants ascertained they could prevent investigators from matching shoeprints by buying many pairs of shoes and discarding the shoes worn during each offense rather than wearing the same shoes for multiple offenses.

Counsel for both defendants objected to admission of the evidence. The trial court ruled that the evidence regarding defendants' acquisition of information about shoeprint matching techniques was admissible. Further, the court ruled that the shoeprint evidence proffered by the prosecution was independently admissible even if the defense had not "opened the door" by eliciting the testimony regarding the lack of shoeprint matches. The court reasoned that although the prosecutor had indicated his intent to forebear presenting the shoeprint evidence unless the defense let the jury know there were no matching footprints, the shoeprint evidence could have been legitimately presented by the prosecution as part of its case without regard to the defense strategy.^[3]

The defense requested that the prosecutor not reference the fact that defendants acquired the information at a prior trial, whereas the prosecutor stated it was important for the jury to understand defendants acquired the information in a trial setting where they had a motive to pay attention. Weighing probative value versus the probability of prejudice, the court ruled the evidence should be sanitized to exclude references to the prior burglary charges and convictions, and should merely refer to prior "'legal proceedings involving defendants.'" The court also stated its view that the sanitized shoeprint evidence was not bad character evidence, because it did not inform the jury about defendants' prior convictions but only advised the jury that defendants acquired information about shoeprint matching.

Based on the court's ruling, the parties reached the following stipulation, which was read to the jury:

"The people and the defendant stipulate and, therefore, it is proven beyond a reasonable doubt that there was a previous legal proceeding in 1994 involving both defendants.

"At that evidentiary proceeding in which both defendants were present, detailed evidence and testimony was presented about the ability of law enforcement investigators to link suspects to crime scenes in a manner similar to fingerprint evidence by discovering and obtaining sneaker or shoe print evidence, called latent shoe print lifts, from a location and comparing those latent shoe print lifts to shoes or sneakers recovered from a suspect."

The prosecutor presented testimony from detectives indicating that at Hillard's residence the police found two pairs of used sneakers and more than 20 boxes of new sneakers, and at Calhoun's residence the police found about seven pairs of used sneakers as well as several boxes of new sneakers. Apparently both Calhoun and Hillard were wearing old shoes when they were arrested.^[4] The parties entered into a stipulation, which was read to the jury, stating that a shoeprint impression obtained from the Sherwin Williams truck did not match the sneakers worn by defendants at the time of their arrest nor any of their other used sneakers.

b. Analysis

Defendants argue that the stipulation pertaining to the shoeprint information they acquired at the prior proceedings constituted evidence of other crimes that was more prejudicial than probative. They assert the evidence had little probative value because: (1) there were, at most, only two footprints at the crime scenes that could be used for comparison;^[5] (2) defendants were wearing old shoes at the time of their arrest; and (3) the prosecution could have argued that professional thieves would take precautions against leaving shoeprint evidence without admission of the shoeprint evidence from the prior trial. Defendants posit that "[t]he only thing the stipulation added to the prosecutor's argument was a wink and a nod to inform the jury that these appellants had a criminal history."

The trial court sanitized the reference to the 1994 proceeding so as to omit any suggestion regarding the facts that the proceeding involved burglary charges and resulted in convictions. As noted by the trial court, the jury had no way of knowing whether the prior judicial proceeding (presumably criminal) resulted in acquittals or convictions. Moreover, to the extent the reference to shoeprint evidence at the prior proceeding may have suggested to the jury that defendants had a prior criminal history, the trial court could reasonably conclude that given the sanitized stipulation, this suggestion was only slight and did not create a high degree of danger of prejudice.

Further, the trial court did not abuse its discretion in finding the shoeprint evidence had high probative value. The court could reasonably ascertain that the fact that many shoes were found at both defendants' residences, combined with their knowledge of shoeprint matching techniques from a previous proceeding, created a strong inference that they were deliberately changing shoes to minimize shoeprint evidence. The court could properly conclude the prosecution had the right to present this information to the jury to strengthen its case and to diminish the weight of any inferences arising from the lack of shoeprint matches. The factors cited by defendants as showing marginal relevance were matters the court could consider when deciding whether to admit the evidence, but they did not compel the court to conclude prejudice outweighed relevancy. We conclude the court did not abuse its discretion in admitting the shoeprint evidence.

2. Admission of Uncharged ATM Burglaries^[6]

a. Background

During trial the defense sought to cast doubt on the prosecution's case by presenting the jury with the fact that ATM burglaries somewhat similar to the charged offenses continued after defendants' arrest on October 9, 2003. This defense was raised by Hillard's counsel, who on cross-examination elicited testimony from a detective that following defendants' arrest there had been more than 12 "crash and dash" ATM burglaries in San Diego county. On redirect examination, the prosecutor sought to elicit testimony from the detective that in addition to the charged ATM burglaries, there were additional uncharged ATM burglaries that were believed to be part of a series of ATM burglaries committed by defendants and that this particular style of ATM burglary did not continue after defendants' arrest. Hillard's counsel objected under Evidence Code section 352. The trial court overruled the objection, ruling that because defense counsel had elicited testimony about the continued postarrest ATM burglaries, the prosecutor was permitted to present evidence about the entire series of ATM burglaries (including those uncharged) that had ceased after defendants' arrest and that were distinct from those that had occurred postarrest.

Accordingly, the prosecutor elicited testimony from the detective that the police department had created a "series sheet" of 14 ATM burglaries like the ones charged in the

complaint that were all believed to be related; this series involved the theft of nine Ford F-350 or F-450 stake bed trucks; and the series stopped when defendants were arrested. The detective explained that the distinguishing characteristics of the ATM burglaries associated with defendants were that they involved a stolen stake bed truck; there were only two men involved; videotapes showed the men committing the burglaries in a methodical, professional manner; the perpetrators drilled the ATM doors out; and the location of the burglaries was primarily the northern and eastern parts of San Diego County.

In contrast, the detective explained there were two series of ATM burglaries that continued after defendants' arrests, and these two series were different from the series associated with defendants. One of the postarrest series involved a White male (defendants are Black); usually involved more than two people; involved the use of torching rather than drilling devices; and were committed in an awkward rather than methodical and professional manner. The second postarrest series involved multiple Black males, chaotic scenes, and old stolen vans.

In addition to admitting the uncharged crimes evidence to support the prosecutor's theory that the prearrest ATM burglaries were different from the postarrest ATM burglaries, the trial court also allowed the prosecutor to elicit testimony from a detective that one of the uncharged ATM burglaries included in the series associated with defendants yielded $31,900 cash.^[7]

b. Analysis

Defendants argue the court abused its discretion in allowing admission of the evidence of the uncharged ATM burglaries because there was no showing the evidence was necessary or helpful to the jury to evaluate the distinctions between the charged ATM burglaries and the postarrest ATM burglaries. Defendants posit the charged crimes could have been distinguished from the postarrest crimes without the introduction of the uncharged crimes, and introduction of the latter was irrelevant, cumulative, and prejudicial.

The trial court could reasonably conclude that the fact there were additional uncharged ATM burglaries sharing the same distinctive characteristics as the charged ATM burglaries enhanced the prosecutor's ability to undermine the defense theory that the postarrest ATM burglaries shed doubt on defendants' culpability. Thus, the trial court could properly conclude the evidence was relevant and had substantial probative value. The question is whether the evidence was merely cumulative or unduly prejudicial

so as to compel its exclusion under Evidence Code section 352.

We agree with defendants that the prosecutor could have explained the distinctions between the charged ATM burglaries and the postarrest ATM burglaries without resort to the evidence of the entire series of uncharged ATM burglaries. Nevertheless, the trial court could reasonably conclude that the fact that there were additional ATM burglaries sharing the same distinctive features as the charged ATM burglaries, and the fact that none of these types of ATM burglaries continued after defendants' arrest, significantly buttressed the prosecution's claim that the evidence of the postarrest ATM burglaries did not advance the defense case. The uncharged crimes evidence informed the jury that a large number of, rather than just a few, distinctive ATM burglaries ceased after defendants' arrest, thereby refuting the defense suggestion that the prosecution had misidentified the perpetrators of the charged offenses. Thus, the trial court could conclude the uncharged crimes evidence added a noteworthy factor for the jury to consider in weighing the postarrest evidence presented by the defense. Given the evidentiary weight added to the prosecution's theory by virtue of the uncharged crimes evidence, the trial court could reasonably find the evidence was significant to a disputed issue and not merely cumulative.

Further, the record supports a finding that the uncharged crimes evidence was not unduly prejudicial given that the jury already knew from the charged offenses that defendants were repeatedly engaging in ATM burglaries. Although the uncharged crimes evidence increased the quantity of offenses associated with defendants, it did not present the jury with a qualitatively different view of defendants' criminal character. Under these circumstances, the court could reasonably conclude the evidence was not of the type that would persuade the jury to improperly convict based on emotion or extraneous factors. This conclusion is supported by the fact that the jury did acquit defendants of the 7-Eleven burglary charge, thus showing that the jury properly performed its duty to reach verdicts based on the strength of the evidence associated with each particular count.

We conclude the trial court did not abuse its discretion in allowing the prosecutor to present evidence regarding the uncharged series of ATM burglaries associated with defendants to rebut the defense presentation of evidence on the continued postarrest ATM burglaries.

II. SENTENCE

A. Hillard's Sentence

Challenging his sentence, Hillard argues the trial court: (1) erred in refusing his request to dismiss one of his strike prior convictions; (2) erred in concluding consecutive sentences were mandatory under the Three Strikes Law; (3) imposed a sentence that constitutes cruel and/or unusual punishment; and (4) selected consecutive sentences in violation of the principles of Blakely v. Washington (2004) 542 U.S. 296 (Blakely).

Allegations that Hillard suffered two prior convictions that were strikes under the Three Strikes Law were found true. Based on the Three Strikes law (Pen. Code,^[8] § 667, subd. (e)(2)(A)(ii)), Hillard was sentenced to 25 years to life for the conspiracy conviction (count 1), plus 11 consecutive terms of 25 years to life for each of the unlawful taking or driving of a vehicle convictions (counts 2, 3, 9, 10, 14, and 17), for each of the burglary convictions (counts 11, 13, 15, and 18), and for the receiving stolen property conviction (count 6). The court stayed sentence under section 654 for the grand theft and attempted grand theft convictions (counts 12, 16, and 19) associated with the burglary convictions, and imposed a concurrent sentence for the misdemeanor resisting an officer conviction (count 8). The court also imposed two consecutive sentences of one year for two prior prison term enhancements. Hillard's total sentence is two years determinate plus 300 years to life.

1. Refusal to Dismiss a Strike Prior Conviction

Hillard asserts the trial court abused its discretion in refusing his request to dismiss one of his two strike prior convictions. Those strike prior convictions are based on Hillard's convictions of attempted murder and attempted robbery in the same case in December 1986; in that proceeding the court stayed sentence for the attempted robbery conviction under section 654.

The two strike prior convictions arose from an incident in November 1985 when Hillard and two co-defendants attempted to rob a jewelry store. One of the co-defendants burst into the store and placed a rifle against the store owner's chest. The owner grabbed the rifle away and the co-defendant fled from the store, yelling to Hillard and the other co-defendant to "get him." The owner pulled a pistol from his pocket but before he could fire the weapon, Hillard shot the owner in the arm with a rifle and then continued shooting. The owner was struck seven more times, three times in the chest, three times in the leg, and once on his nose.

Hillard requested that the trial court dismiss one of the strike prior convictions because the offenses had been committed almost 20 years earlier and constituted only one event, and his current offenses were property crimes that did not involve the use of weapons. The trial court concluded Hillard was not outside the spirit of the Three Strikes law and rejected his request. The court noted that although only one victim was involved in the prior offenses Hillard fired several shots from the gun, and he thereafter committed himself to a life of carefully planned thievery. On appeal, Hillard challenges the court's ruling, contending that his two strike priors arose out of a single act; his criminal record apart from the two strike priors primarily consists of theft-related commercial burglaries; and if he were sentenced with one strike he would still receive a lengthy sentence of about 18 years.

The purpose of the Three Strikes law is to impose extended punishment on defendants who have previously committed violent or serious felonies and who again commit a felony, thus showing they continue to pose a threat to society. (People v. Leng (1999) 71 Cal.App.4th 1, 14; Ewing v. California (2003) 538 U.S. 11, 25-26.) A trial court may dismiss a strike prior conviction if, in light of the nature and circumstances of the current and prior felony convictions and the particulars of the defendant's background, character, and prospects, the defendant is deemed outside the spirit of the Three Strikes law in whole or in part. (§ 1385, subd. (a); People v. Williams (1998) 17 Cal.4th 148, 161.) On appeal, we review the trial court's decision for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 376.) The defendant must show that the trial court's refusal to dismiss the strike prior is so irrational or arbitrary that no reasonable person could agree with it. (Id. at p. 377.)

Our Supreme Court has recognized that there may be circumstances when a trial court would abuse its discretion when declining to dismiss a strike prior conviction for which sentence was stayed under section 654. This may occur when the "two prior felony convictions are so closely connected--for example, when multiple convictions arise out of a single act by the defendant as distinguished from multiple acts committed in an indivisible course of conduct . . . ." (People v. Benson (1998) 18 Cal.4th 24, 36, fn. 8; see People v. Sanchez (2001) 24 Cal.4th 983, 993; People v. Burgos (2004) 117 Cal.App.4th 1209, 1216.) In contrast, the refusal to dismiss a strike prior conviction even though sentence was stayed may be appropriate when a defendant "committed additional violence in the course of a prior serious felony (e.g., shooting or pistol-whipping a victim during a robbery, or assaulting a victim during a burglary) . . . ." (People v. Benson, supra, 18 Cal.4th at p. 35.)

The trial court here could reasonably construe the attempted robbery and the attempted murder as arising from multiple, distinct acts. The court could conclude that Hillard first committed attempted robbery as an accomplice to a co-defendant's forceful assault on the store owner, and then separately committed attempted murder by repeatedly shooting the owner. Although Hillard may have been trying to stop the store owner from shooting his accomplice, he nevertheless made a decision to shoot rather than to flee, and further to repeatedly shoot rather than to shoot only once. When deciding whether to dismiss a strike prior, the trial court is charged with evaluating the particular circumstances associated with the defendant's conduct to determine whether the interests of justice warrant leniency. (People v. Benson, supra, 18 Cal.4th at p. 36, and fn. 8.) The trial court did not abuse its discretion in concluding that Hillard's conduct of escalating the criminal conduct by repeatedly shooting the victim justified punishing him on the basis of two, rather than one, strike prior conviction.

The reasonableness of the trial court's decision to use both strike priors in sentencing Hillard is further supported by his overall record, showing that he continued his criminal conduct after being released from prison for his 1986 convictions. In 1993, Hillard and Calhoun committed a series of commercial burglaries, using stolen cars to ram into businesses late at night and steal the safes. Hillard was released from prison in April 1999, and in 2003 he commenced the spree of offenses involved in the current case. The fact that his poststrike offenses involved commercial burglaries does not detract from the fact that he has emerged as a recidivist criminal targeted by the Three Strikes law. The trial court's determination that Hillard's conduct fell within the spirit of the full Three Strikes law was not arbitrary or irrational, and therefore must be sustained on appeal.

2. Mandatory Consecutive Sentences

Hillard challenges the trial court's conclusion that it was required to impose consecutive sentences and had no discretion to impose concurrent sentences.

Under section 667, subdivision (c)(6), a trial court sentencing a defendant under the Three Strikes law must impose consecutive sentences if the defendant's multiple felony convictions in the current proceedings were "not committed on the same occasion" and did not "aris[e] from the same set of operative facts." The California Supreme Court has defined the same occasion as meaning "close temporal and spatial proximity," and has defined the same set of operative facts as meaning "sharing common acts or criminal conduct that serves to establish the elements" of the offenses. (People v. Lawrence (2000) 24 Cal.4th 219, 233.) A factor to consider in determining whether the operative facts are distinct is "the extent to which the elements of one offense have been satisfied, rendering that offense completed in the eyes of the law before the commission of further criminal acts constituting additional and separately chargeable crimes . . . ." (Ibid.)

If a defendant's convictions were committed on the same occasion, or if they were committed on different occasions but arose from the same set of operative facts, a trial court retains discretion to impose concurrent sentences. (People v. Lawrence, supra, 24 Cal.4th at pp. 229-230, 233.)

The trial court concluded that consecutive terms were required under section 667, subdivision (c)(6).^[9] Hillard argues that the trial court erred in concluding it had no discretion to impose concurrent sentences. He asserts that to the extent the unlawful driving or taking convictions pertained to vehicles that were used to conspire to commit, to commit, or to attempt to commit ATM burglaries, the unlawful driving or taking convictions occurred on the same occasion and arose from the same set of operative facts as the correlative ATM-related convictions.

The argument is unavailing. Hillard unlawfully took or drove the various vehicles a significant period of time before he used them to commit the ATM-related offenses, and from locations apart from the locations of the ATM-related offenses. Thus, the offenses were not closely connected in time or location so as to be deemed as occurring on the same occasion within the meaning of section 667, subdivision (c)(6). (See People v. Lawrence, supra, 24 Cal.4th at p. 229.) Further, once he unlawfully took or drove the vehicles not belonging to him and without the owner's consent, these offenses were complete. (Veh. Code, § 10851, subd. (a).) Thereafter, Hillard committed the ATM-related offenses, which were criminal acts that constituted additional, separate offenses. Thus, the offenses did not arise from the same set of operative facts. (People v. Lawrence, supra, at pp. 233-234.) Under these circumstances, the trial court properly concluded consecutive sentences were mandatory.

3. Cruel and Unusual Punishment

Hillard's sentence of a determinate term of two years plus 300 years to life effectively sentenced him to life without the possibility of parole. He asserts this sentence constitutes cruel and/or unusual punishment under the federal and state Constitutions.^[10]

A sentence violates the federal Constitution's proscription against "'cruel and unusual punishment'" if the punishment is grossly disproportionate to the severity of the

crime. (Ewing v. California, supra, 538 U.S. at pp. 20-21.) Similarly, under the California Constitution's proscription against "[c]ruel or unusual punishment," a sentence is unconstitutional if the punishment is so disproportionate to the crime that it "'shocks the conscience and offends fundamental notions of human dignity.'" (Cal. Const., art. I, § 17; People v. Dillon (1983) 34 Cal.3d 441, 477-478, & fn. 25.) The evaluation of cruel or unusual punishment is based on such factors as the nature of the offense and the offender, with particular regard to the degree of danger to society; a comparison with the punishment for more serious crimes in the same jurisdiction; and a comparison with the punishment for the same offense in other jurisdictions. (In re Lynch (1972) 8 Cal.3d 410, 425-427; People v. Ayon (1996) 46 Cal.App.4th 385, 398-399, disapproved on other grounds in People v. Deloza (1998) 18 Cal.4th 585, 600, fn. 10.)

In evaluating the nature of the offense, the courts consider the totality of the circumstances, including such factors as motive, the manner in which the crime was committed, the extent of the defendant's involvement, and the consequences of the defendant's acts. (People v. Dillon, supra, 34 Cal.3d at p. 479.) In evaluating the nature of the offender, the courts consider such factors as the defendant's age, prior criminality, personal characteristics, and state of mind. (Ibid.)

When punishment is imposed under the Three Strikes scheme, the defendant is not merely being punished for the most recent offense, but also for recidivism. (People v. Mantanez (2002) 98 Cal.App.4th 354, 366.) Concluding that extended punishment can justifiably be imposed on defendants who repeatedly commit felonies, the United States Supreme Court has rejected a cruel and unusual punishment challenge to a life sentence under California's Three Strikes law even when the defendant's most recent offense is not statutorily classified as a violent or serious offense. (Ewing v. California, supra, 538 U.S. at pp. 28-30.) Further, the United States Supreme Court has ruled that a sentence of life without the possibility of parole does not necessarily constitute cruel and unusual punishment. (Harmelin v. Michigan (1991) 501 U.S. 957, 961, 994-996 [upholding sentence of life without possibility of parole for possession of large quantity of drugs]; see People v. Byrd (2001) 89 Cal.App.4th 1373, 1383.)

On appeal, we evaluate the question of cruel and/or unusual punishment by resolving factual disputes in favor of the judgment, and by exercising our independent judgment on the issue of constitutionality. (People v. Meeks (2004) 123 Cal.App.4th 695, 706-707; People v. Mantanez, supra, 98 Cal.App.4th at p. 358.)

Hillard argues his sentence constitutes cruel and/or unusual punishment because his offenses were against property and his sentence is longer than sentences imposed for more serious crimes such as sex offenses and violent offenses. These arguments fail to recognize that Hillard is being punished for his recidivism. Thus, disproportionality may not be shown by comparing his sentence to a nonrecidivist offender or by focusing only on the nature of his current offenses. It is not grossly disproportionate nor shocking to the conscience to sentence Hillard to prison for the remainder of his life given his unrelenting criminal conduct over the course of many years.

4. Blakely Error

Hillard argues that under the United States Supreme Court's decision in Blakely, supra, 542 U.S. 296, the trial court was not authorized to impose consecutive sentences without a jury's determination of the facts requiring the consecutive sentence. This issue has been resolved adversely to Hillard in People v. Black (2005) 35 Cal.4th 1238, 1244, 1261-1264 (Black). Given the holding in Black, Hillard's Blakely challenge fails.

B. Calhoun's Sentence

Calhoun's sole challenge to his sentence is that it violates the principles of Blakely, supra, 542 U.S. 296.

Calhoun was found to have suffered one prior conviction that constituted a strike under the Three Strikes law; accordingly, all of his sentences were doubled. (§ 667, subd. (e)(1).) He was sentenced to a total term of 28 years, four months, consisting of the following: Six years for unlawful taking or driving of the United Rentals truck (count 2); seven consecutive terms of one year, four months for conspiracy (count 1), evading an officer with reckless driving (count 5), receiving stolen property (count 6), and for each of the burglary convictions (counts 11, 13, 15, and 18); five consecutive terms of two years for the remaining unlawful taking or driving convictions (counts 3, 9, 10, 14, and 17); three consecutive terms of one year for three prior prison term enhancements. Calhoun received concurrent sentences for the misdemeanors of harming or interfering with an officer's animal and resisting an officer (counts 7 and 8). Sentences for the grand theft and attempted grand theft convictions (counts 12, 16, and 19) were stayed under section 654.

The trial court selected consecutive sentences based on findings that Calhoun had a lengthy record, and the counts were largely independent, occurred at different times and locations, and involved different objectives. Calhoun's challenge to his sentence (made to preserve further review) is that under the United States Supreme Court's decision in Blakely, consecutive sentences could not be selected without jury findings on these factual issues. As noted, this contention has been rejected by the California Supreme Court in Black, and thus provides no basis for reversal of his sentence.

We note Calhoun's abstract of judgment fails to reflect the stayed sentence properly selected by the trial court for the count 19 Beacon gas station attempted grand theft. (See People v. Deloza, supra, 18 Cal.4th at pp. 591-592.) We will remand and direct that this error be corrected.

DISPOSITION

The judgments are affirmed. The case is remanded to the superior court with directions to correct Calhoun's abstract of judgment to reflect the stayed sentence on count 19 attempted grand theft, and to forward the corrected copy of the abstract of judgment to the Department of Corrections.

HALLER, J.

WE CONCUR:

BENKE, Acting P. J.

HUFFMAN, J.

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^[1] There was an ATM machine located on the side of the 7-Eleven building. The jury acquitted defendants of the attempted burglary charge (count 4) at this location.

^[2] Davies Electric had rented the United Rentals truck as a replacement for its Davies Electric truck that had been stolen while it was parked for repairs at a Firestone shop.

^[3] The court rendered this second ruling in response to Hillard's objection that even if the evidence was admissible as to Calhoun, it should not be admissible as to Hillard because Hillard's counsel had not elicited any testimony regarding the lack of shoeprint matches.

^[4] A detective testified Hillard was wearing old shoes at the time of his arrest. In his opening brief on appeal, Calhoun states he also was wearing old shoes, citing to his counsel's arguments during the trial proceedings addressing the admissibility of the shoeprint evidence. In its respondent's brief, the People do not dispute Calhoun's claim in this regard.

^[5] The parties' stipulation regarding the shoeprints found at the crime scenes only references one shoeprint found in the Sherwin Williams truck. However, during discussions at trial, the prosecutor stated there was a second shoeprint impression obtained at the scene where the San Diego Hall of Champions' ATM was recovered.

^[6] Consistent with the usage at trial, in this section of our opinion we will refer to the burglaries and thefts associated with the ATM machines as "ATM burglaries."

^[7] The prosecutor sought admission of this particular testimony for purposes of explaining how Hillard had been able to spend large amounts of money during the time period of the offenses that exceeded the amount of cash he acquired from the charged ATM burglaries, to rebut any suggestion by the defense that Hillard acquired the money from another source. After a lengthy discussion, the court was ultimately persuaded by the prosecutor's argument that the probative value outweighed the potential for prejudice from this testimony given that the jury was already going to hear the other crimes evidence.

^[8] Subsequent statutory references are to the Penal Code unless otherwise specified.

^[9] Hillard's counsel did not object to this ruling. Hillard argues that we should nevertheless reach the issue on appeal because such an objection would have been futile, or, alternatively, counsel was incompetent for failing to object. We will exercise our discretion to consider the issue. (People v. Norman (2003) 109 Cal.App.4th 221, 229-230.)

^[10] We again exercise our discretion to consider this issue even though Hillard's counsel did not raise this constitutional argument before the trial court.