P. v. Torres

Filed 2/24/06 P. v. Torres CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Edward D. Webster, Judge. Affirmed in part and reversed in part.

Nancy Olsen, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Pamela Ratner Sobeck, Supervising Deputy Attorney General, and David Delgado-Rucci, Deputy Attorney General, for Plaintiff and Respondent.

In a bifurcated proceeding, a jury found defendant guilty of assault with a deadly weapon by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1))^[1] and not guilty of making a criminal threat (§ 422). In addition, the jury found true the enhancement allegation that defendant had personally used a deadly or dangerous weapon, to wit, a knife, in the commission of the aggravated assault (§ 245, subd. (a)(1)). The trial court thereafter found true that defendant had served three prior prison terms (§ 667.5, subd. (b)); and that defendant had sustained two prior serious felony convictions (§ 667, subd. (a)) and two prior strike convictions (§§ 667, subds. (c) & (e)(2)(A), 1170.12, subd. (c)(2)).^[2] As a result, defendant was sentenced to a total term of 40 years to life in state prison as follows: an indeterminate term of 25 years to life on the aggravated assault conviction pursuant to the three strikes law, and three 5-year enhancements for the three prior serious felony enhancements; the prior prison term enhancements were stricken.

On appeal, defendant contends (1) the trial court erred in imposing the third prior serious felony enhancement as the court never made a true finding on that prior conviction; (2) the trial court abused its discretion in declining to strike one of the prior strike convictions; and (3) his sentence constitutes cruel and unusual punishment under the federal and state Constitutions. We agree with defendant's first contention but reject his remaining contentions.

I

FACTUAL BACKGROUND

On December 14, 2003, about 2:00 a.m., defendant stabbed Michael MacPherson in the back during an altercation outside Mario's Place, a restaurant in downtown Riverside. Earlier in the evening, on December 13, MacPherson and friends were bar hopping in downtown Riverside. They began their evening at Lake Alice Trading Company (Lake Alice) about 9:00 p.m., where MacPherson consumed three or four alcoholic drinks. MacPherson and his friend, Mike Kelly, later met two women at Lake Alice. The women accompanied MacPherson and Kelly to the Mission Inn, where they continued to drink. MacPherson had three or four more alcoholic drinks at the Mission Inn. The foursome eventually ended up at or near Mario's Place.

As MacPherson was talking to the woman he had befriended near Mario's Place, defendant approached carrying a bowling bag and asked the woman if MacPherson was bothering her. Defendant directed his comments to the woman, not MacPherson, which apparently angered MacPherson. MacPherson and defendant exchanged hostile words. After MacPherson told defendant to â€