P. v. Williams

Filed 10/15/07 P. v. Williams CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

----

A jury found defendant Melvin Eugene Williams guilty of first degree robbery (Pen. Code,  211)^[1]and assault with a firearm ( 245, subd. (a)(2)), and found firearm use enhancements ( 12022.5, subd. (a)(1), 12022.53, subd. (b)), to be true with respect to each count. After the trial court found that he had sustained a prior strike felony conviction, it imposed an aggregate state prison sentence of 30 years four months.

Seeking reversal, defendant claims that the trial court erred in denying his motion to suppress evidence, improperly denied him a reasonable continuance upon granting his motions for self-representation, and committed various sentencing errors. Except for a minor custody credit claim, we find none of his contentions meritorious and shall affirm the judgment.

BACKGROUND

In August 2003, Lorena Maxim befriended defendant and began to spend most of her time with him. Maxim, a prostitute who pleaded guilty in exchange for her testimony, admitted that she and defendant turned to crime in October 2003 to supplement their income.

Although defendant was charged with a total of 13 criminal counts, the jury either deadlocked on or acquitted him of charges arising from robberies that took place on October 9, October 18 and early on October 28, 2003. We do not recite the evidence with respect to the charges that did not result in convictions.

Factual summary

In June 2003, defendant came to the door of Clara Paz at her home on Branch Street in Sacramento and asked to purchase some heroin. Paz told him to leave his name and number and she would get back to him. Defendant walked over to a box next to her bed stand and remarked, from my understanding you keep it in a box like this. He then grabbed the box, which contained approximately two ounces of heroin. He also took some cash from her purse. When Paz got up, defendant pulled out a gun, pointed it at her head and threatened to pop her.

At around 11:30 p.m. on October 28, 2003, Paz was in her bedroom using her silver laptop computer. She looked up and noticed defendant in her doorway. Defendant, who had a small silver gun in his hand, said remember me? Remembering defendant from the June incident, Paz replied get the fuck out of my house.

Defendant cocked the gun and was pointing it down as he stood about four feet from Paz. He told her this is for what happened before, and reached over to seize the laptop. Paz grabbed the computer and struggled with defendant for control, as she screamed for her son-in-law to help.

Defendant turned and pointed the gun at Pazs forehead, saying Ill pop you. Paz then let go of the computer.

As defendant departed with the laptop, Paz went into the living room as her son-in-law Octavio Barron entered from the kitchen. Paz told Barron what happened and he began chasing defendant. Defendant pointed the gun at Barrons temple and threatened to shoot him in the head if he took a step closer. Barron replied that he didnt care. Defendant quickly walked out of the house and got into a large white car that was waiting for him at the corner of Eleanor and Branch.

Two Sacramento police officers who were stationed only a few blocks away observed a white Mercury with an expired plate registration and stopped the car. They found defendant in the drivers seat and Maxim was in the passenger seat, with a silver laptop computer near her feet. Because defendant had no identification, one of the officers returned to his patrol car to run a check. As he did so, a police broadcast alerted the officers to the robbery at the Paz house, and the two suspects were promptly taken into custody.

Based on the evidence recited above, defendant was convicted of robbery as to Paz and assault with a firearm against Barron, with true findings as to two firearm enhancements.

DISCUSSION

I. Motion To Suppress

The trial court denied a defense motion to suppress evidence seized as a result of the automobile stop conducted by police minutes after the Paz robbery. Defendant contends that the ruling was in error because the police broadcast alerting the officers to the Paz robbery did not provide them with reasonable suspicion to prolong the stop beyond a check of the automobiles registration.

A. Standard of Review

Appellate review of a trial courts ruling on a motion to suppress is governed by well-settled principles. We review for substantial evidence with respect to historical factual findings, express or implied, but give independent review to the applicable rule of law and application of the facts to resolve whether there has been a constitutional violation. (People v. Glaser (1995) 11 Cal.4th 354, 362; People v. Williams (1988) 45 Cal.3d 1268, 1301.) On appeal, all presumptions favor the trial courts exercise of its power to judge the credibility of the witnesses, resolve any conflicts in the testimony, weigh the evidence and draw factual inferences. (People v. Leyba (1981) 29 Cal.3d 591, 596.) With these principles in mind, we summarize the evidence introduced at the suppression hearing.

B. Evidence Adduced at the Hearing

On October 28, 2003, around 11:30 p.m., Sacramento Police Officers Shannon Richardson and Darryl Bryan were riding in a marked patrol car heading northbound on Rio Linda near the intersection of Eleanor Avenue, when they spotted a white four-door Mercury Marquis ahead of them. They ran a DMV check on the license plate and discovered that the registration had expired in February of 2002.

The officers activated their overhead lights and initiated a traffic stop of the Mercury. Defendant was the driver and Lorena Maxim was in the passenger seat. Defendant was wearing a black puffy jacket, black shirt and dark pants. A silver laptop computer was visible on the floorboard near Maxims feet. Defendant was sweaty and both occupants appeared very nervous.

Officer Bryan asked defendant for identification. Defendant replied that he did not have any. Bryan then asked for his name and date of birth. After defendant gave him the information, Bryan walked back towards his patrol vehicle and began to run a license and warrant check, while Officer Richardson maintained contact with the occupants.^[2]

Just as Bryan reached his vehicle, the officers received an all-units bulletin alerting them to a home invasion armed robbery that had taken place a few minutes earlier off Eleanor and Branch, about five blocks away. The suspects vehicle was described as a white Thunderbird, which has a body style similar to the Mercury.^[3] The robbery suspect was described as a Black male, about 25 years old, wearing a blue jacket, gloves and a black shirt. The broadcast also stated that a silver or gray laptop computer had been stolen.

Officer Bryan confirmed with dispatch that the stolen computer was silver, which matched the color of the laptop near Maxims feet. Believing that defendant and Maxim were possibly involved in the robbery that had just taken place, the officers called for backup, and two other officers arrived within 30 seconds. Bryan then approached the drivers side of the vehicle with his weapon drawn and asked both occupants to show their hands. Another officer asked the occupants to come out of the car. Defendant initially complied by getting out of the car and taking a few steps toward the officers. At that point, he exclaimed, What did I do, what did I do? and began running. He was apprehended a short distance away.

After he was arrested and advised of his Miranda^[4]rights, defendant gave statements admitting his involvement in the robbery. A loaded, semiautomatic, 9-millimeter, silver-and-black handgun was recovered from Maxims purse behind the passenger seat, after she told Officer Richardson its location. The officers conducted a field show up, where the robbery victim, Paz, identified defendant as the robber, and the laptop as belonging to her.

C. Trial Courts Ruling

In denying the motion to suppress, the trial court found that both officers were very credible. Determining that the officers had made a simple registration stop which suddenly turned into a potentially armed robbery suspect, the court concluded that the radio description in the broadcast gave the officers ample cause to believe the occupants of the vehicle were connected to the Paz robbery.

D. Argument on Appeal

Defendant concedes at the outset that the officers had reasonable suspicion to make a traffic stop based on the information transmitted to them that the Mercurys registration had expired. He insists, however, that the officers had no reason to prolong the stop beyond an inquiry into valid license and registration because there were discrepancies between the description of the facts of the robbery in the police dispatch and the officers observations at the time. According to this argument, the broadcast did not give the officers justification for further investigation into the suspects connection with the Paz robbery.

Although both detentions and arrests are seizures under the Fourth Amendment, the constitutional standard for permissible detentions is of lesser degree than that applicable to an arrest. (People v. Harris (1975) 15 Cal.3d 384, 389.) A traffic stop is justified at its inception if based on at least reasonable suspicion that the driver has violated the Vehicle Code. (People v. Bell (1996) 43 Cal.App.4th 754, 761.) When an officer makes such a traffic stop, the stop may last only so long as is reasonably necessary to perform the duties incurred by virtue of the stop. (People v. Miranda (1993) 17 Cal.App.4th 917, 926.)

If the person detained is unable to produce a drivers license, registration, or satisfactory proof of identity, the officer may, depending on the circumstances, reasonably expand the scope of the stop, making it incrementally more intrusive. (People v. Miranda, supra, 17 Cal.App.4th at p. 927.) Thus, circumstances that develop during a detention may provide reasonable suspicion to prolong the detention. (People v. Warren (1984) 152 Cal.App.3d 991, 995-997.) There is no set time limit for a permissible investigative stop; the question is whether the police diligently pursued a means of investigation reasonably designed to confirm or dispel their suspicions quickly. (United States v. Sharpe (1985) 470 U.S. 675, 686-688 [84 L.Ed.2d 605, 615-617]; People v. Soun (1995) 34 Cal.App.4th 1499, 1520.)

Here, the officers executed a valid stop based on defendants suspected violation of the Vehicle Code, i.e., driving with an expired registration. (Veh. Code,  4000, subd. (a)(1), 5204, subd. (a).) A laptop computer was seen in plain view at his passengers feet. Defendant could not produce a drivers license, which itself is a violation of the Vehicle Code. (Veh. Code,  12951, subds. (a), (b).) These facts easily justified Officer Bryans next action, which was to walk back to his patrol car to attempt to verify defendants identity from the verbal information he had provided.

As soon as Officer Bryan returned to his vehicle, a police broadcast alerted him to a robbery that had taken place just a few blocks away and that the robbers had stolen a computer. The broadcast described the robber as an African‑American male, wearing a blue jacket, black shirt, blue jeans and driving a white Thunderbird. Defendant is an African‑American male who was wearing a black jacket and dark pants, who was stopped while driving a white Mercury, which is similar to a Thunderbird. His passenger had a silver laptop near her feet, the same color as the stolen computer described in the police bulletin. Both occupants of the car were visibly nervous, defendant was sweating, and neither could produce identification.

Based on the foregoing, there is no doubt the officers had specific and articulable facts justifying the inference that defendant had been involved in the armed robbery that had just taken place minutes earlier and only five blocks away.

In arguing to the contrary, defendant focuses on minor details that do nothing to dispel a finding of reasonable suspicion. He claims, for example, that the broadcast described a Thunderbird or an El Dorado, not a Mercury like the one he was driving; that the suspect was wearing a blue jacket and blue jeans rather than a black jacket and black pants like defendant; and that the broadcast said nothing about a female companion or that the perpetrator had gold-capped teeth, as did defendant. These slight discrepancies in no way divested the officers of reasonable suspicion that defendant was involved in criminal activity. (See People v. Harris, supra, 15 Cal.3d at pp. 387-389 [detention proper where there was general similarity between description of burglary suspect and the defendant, who was stopped with a companion three blocks from burglarized residence]; People v. Flores (1974) 12 Cal.3d 85, 92 [detention upheld where officer possessed only general description of the suspects and vehicle used]; People v. Jones (1981) 126 Cal.App.3d 308, 314 [probable cause to arrest found despite minor discrepancies between the description of the car in police dispatch and the stopped car].) Indeed, given the close proximity in time and place of the home invasion robbery and the location of defendants vehicle, the color match between the robbery vehicle and his, and the color match between the computer reported to have been stolen and the laptop sitting at Maxims feet, it is unreasonable to suggest that the officers were compelled to limit their investigation to the validity of the automobile registration.

Defendant also parses through the officers testimony in an attempt to find inconsistencies therein. He concludes that, despite the trial courts finding that they were credible, it overlooked significant evidence that they were not. This line of argument is doomed to failure. On appellate review of a motion to suppress evidence, we are bound by the trial courts resolution of disputed facts and its assessment of credibility. (People v. Leyba, supra, 29 Cal.3d at pp. 596-597; People v. Valenzuela (1994) 28 Cal.App.4th 817, 823.)

The trial court was fully justified in finding that the officers conducted a detention that was reasonable under the circumstances. The motion to suppress was properly denied.

II. Denial of Continuances

A. Faretta-based Continuance Motions

Events of May 11-16, 2005

Defendant had two short stints acting as his own lawyer before trial commenced. Up to and including the hearings on various in limine motions, defendant was represented by Attorney Paul R. Irish. After three weeks of in limine motions and with trial set to commence in five days, defendant made a motion to act as his own attorney pursuant to Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2d 562] (Faretta). Judge Talmadge Jones indicated that he would grant the motion, but warned defendant about the dangers of acting as his own lawyer and also advised him that he would not continue the trial, since the case had been in pretrial proceedings for a month.

Defendant asked if going in pro. per. would mean, I would have no time to familiarize myself with, um, none of this stuff that Ill be receiving from my ex-lawyer, if thats what he becomes? Judge Jones replied that defendant would have five days to prepare, which the judge deemed adequate for [defendant] to get up to speed, given the lengthy proceedings that had already taken place.

On the morning of trial, May 16, in a sudden turn of events, codefendant Maxim pleaded guilty to several charges and agreed to testify against defendant. Judge Jones explained to defendant the implications of what had transpired. After praising Attorney Irishs ability to provide him with a vigorous defense and again stressing the pitfalls of self-representation, Judge Jones asked defendant if he wished to reconsider his decision to act as his own attorney. Remarking that the last few days had just been rough actually trying do all this stuff, and that his gut feeling was telling [him] that [he] wouldnt be able to handle this properly, Williams informed the judge he wanted to take his attorney back. Irish was thereupon reappointed as counsel of record.

Events of May 31, 2005

In light of Attorney Irishs need to review and investigate Maxims newly produced videotaped statement to the prosecutor, the court granted Irishs request for a continuance of trial from May 19 to May 31.

On the morning of May 31, defendant announced that he changed his mind and wished to renew his Faretta motion, on the ground that Attorney Irish had refused to file four motions that defendant had personally prepared. Defendant explained that [b]asically, if he dont want to do it and he is telling me I have to do it myself, I have to do it myself because I want that motion to be heard. Defendant also requested that the trial be brought to a halt until one of his motions, to recuse the trial judge, could be acted on by the third district . . . appellate court.

Judge Jones again granted defendants motion to represent himself, and accepted the four motions, including the recusal motion. When court convened a short time later, Judge Jones announced that he was denying all four motions, which he characterized as specious and without merit or untimely or beyond the courts jurisdiction . . . . The judge also offered defendant one last opportunity to take Attorney Irish back.

Defendant stated that he wanted his motion for recusal to be heard by the appellate court. Judge Jones replied that defendant could pursue any matters he desired in the appellate court, but that there would be no further continuance of the trial. Defendant then asked if the court was telling him that (1) his motion for recusal was being denied, and (2) there is no way this trial can be froze until I write my writ to the third appellate court [sic]. Judge Jones confirmed that was exactly the substance of the rulings.

At that point, defendant said that he no longer cared what happened because it was apparent that . . . the decision is already made on whats going to happen, so I am not even going to argue with it. After receiving further clarification from the judge as to why the recusal motion was being denied, defendant told the court that he wished to take Attorney Irish back as his counsel. Irish represented him for the remainder of the trial.

B. Defendants Argument on Appeal

Based on the events of May 16 and May 31, defendant asserts that [t]he courts failure to offer [him] a reasonable continuance following [the] grant of his Faretta motions deprived him of his right to meaningful self-representation. Defendant insists that the proper remedy for his untimely motions for self-representation was for the trial court to deny the motions, rather than force him to go to trial without adequate preparation time.

The notion defendant advances is incorrect. As our Supreme Court has recently said, when the trial court is confronted with an untimelyFaretta request, it is perfectly proper for the court to condition its grant upon a refusal to allow a continuance. (People v. Jenkins (2000) 22 Cal.4th 900, 1039 (Jenkins).)

Defendants suggestion that he was rushed to trial without time to prepare is also factually flawed. When Judge Jones granted defendants May 16 Faretta motion, he told him he would be allowed until May 21 to prepare for trial. If the judge could properly condition the grant of an untimely Faretta motion on the lack of any continuance, he certainly committed no error in allowing defendant five days of preparation time. No abuse of discretion has been shown.

Defendants May 31 request was not premised on a lack of time to prepare his own defense. Instead, defendant, while acting as his own attorney, requested that the trial be brought to a halt while he sought a writ in the Court of Appeal, seeking relief from the denial of his recusal motion. That motion, which was not a Faretta-based request, was clearly meritless.

On appeal from a denial of a request for continuance, defendant must demonstrate a clear abuse of discretion or the trial courts decision will be affirmed. (Jenkins, supra, 22 Cal.4th at p. 1037.) Defendant has failed to show that Judge Jones unreasonably refused to delay the trial either on May 16 or May 31.

In any event, the trial courts failure to grant a continuance to allow defendant more time to prepare his own defense, even if error, was indisputably harmless.

While error in denying a timely Faretta motion is reversible per se (People v. Joseph (1983) 34 Cal.3d 936, 948), when a trial court merely errs in denying a continuance, reversal is only warranted if prejudice from that denial is shown. (See People v. Samayoa (1997) 15 Cal.4th 795, 840.)

In this case, defendant cannot possibly have been prejudiced by not having had more time to prepare his defense because he did not conduct it‑‑Attorney Irish did. And, as defendant readily concedes, the court granted Irish a reasonable continuance every time he requested one. Since there was no causal connection between the courts refusal to grant defendant extra time to prepare for his aborted attempts at self-representation and his conviction, the claim of error must fail. (Cal. Const., art. VI,  13; People v. Watson (1956) 46 Cal.2d 818, 836.)

III. Sentencing Error

A. Upper Term

The trial court sentenced defendant to the upper term of six years on the robbery count, finding the aggravating factors outweighed the mitigating factors. The aggravating factors cited by the court were that: (1) the crime involved planning and sophistication, as evidenced by defendants use of a robbery kit, consisting of a mask, gloves and a bandana; (2) the victim was vulnerable, in that she was robbed in her home with her grandchildren nearby; (3) defendant engaged in violent conduct as evidenced by his prior convictions of increasing seriousness; and (4) defendant had served a prior prison term.

In Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856, 876] (Cunningham), the United States Supreme Court found that because Californias determinate sentencing law (DSL) allocates to judges sole authority to find facts permitting the imposition of an upper term sentence, the system violates the Sixth Amendment.

In supplemental briefing, defendant contends that the trial court committed Cunningham error by relying on aggravating circumstances that were neither admitted by defendant nor submitted to a jury to justify sentencing him to the upper term.

The People argue that (1) defendant forfeited his claim of sentencing error by failing to raise it in the trial court; (2) the trial court properly relied on defendants prior convictions when it imposed the upper term under Cunningham; and (3) alternatively, any error committed by the trial court was harmless beyond a reasonable doubt.

We find the Peoples second argument has merit; therefore, it is unnecessary to reach the merits of the other two arguments.

In People v. Black (2007) 41 Cal.4th 799 (Black), the California Supreme Court considered whether imposing the upper term violated the defendants Sixth Amendment right to a jury trial. The court concluded that under Californias DSL, a defendant is eligible to receive the upper term so long as one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely.^[5] (Black, at p. 813.) Thus, if one aggravating circumstance has been established in accordance with Blakely, the defendant is not legally entitled to the middle term sentence, and the upper term sentence is the statutory maximum for Sixth Amendment purposes. (Black, at p. 813.)

The Black court also noted that the United States Supreme Court consistently has stated that the right to a jury trial does not apply to the fact of a prior conviction[] [citations,] [and that] recidivism . . . is a traditional, if not the most traditional, basis for a sentencing courts increasing an offenders sentence. (Black, supra, 41 Cal.4th at p. 818.) Because Black had a prior conviction, the court reasoned that he was not legally entitled to the middle term and, consequently, could be sentenced to the upper term without violating his Sixth Amendment rights. (Black, at p. 820.)

Black also concluded that when a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury. (Black, supra, 41 Cal.4th at p. 813, italics omitted.)

Here, two of the factors that the trial court relied on to impose the upper term were that defendants prior convictions are numerous and of increasing seriousness, and that defendant had served a prior prison term. As in Black, since defendant had sustained prior convictions, he was not legally entitled to the middle term and the trial court properly relied on his prior convictions and prior prison term when it imposed the upper term. (See Black, supra, 41 Cal.4th at p. 820.) Although the trial court did mention two aggravating circumstances unrelated to defendants prior convictions, Black makes clear that a trial court does not violate a defendants constitutional rights by relying on aggravating circumstances other than the defendants recidivism. (Id. at p. 813.) We conclude that defendants sentence did not violate his Sixth Amendment rights under Cunningham and Blakely.

B. Romero Motion

Prior to sentencing, defendant made an oral motion to strike his 1993 robbery conviction in the interest of justice under section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). The trial court denied the motion, refusing to strike the conviction.

Defendant claims denial of the motion was an abuse of discretion. He points out that the value of the stolen property was only $500, that the firearm assault occurred only as he was escaping, and that he has a drug problem. He also asserts that taxpayer money would be wasted by sending him to prison for an extended period. None of these arguments is persuasive.

[I]n ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law, on its own motion, in furtherance of justice pursuant to . . . section 1385[, subdivision] (a), or in reviewing such a ruling, the court in question 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. (People v. Williams (1998) 17 Cal.4th 148, 161.)

[A] trial courts refusal or failure to dismiss or strike a prior conviction allegation under section 1385 is subject to review for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 375 (Carmony I).) Under this standard, 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.)

The trial courts denial of defendants Romero motion does not present a close question. In committing his latest crimes, defendant brazenly robbed a woman at gunpoint late at night in her own home with her grandchildren in close proximity, then pointed the gun at the temple of her son-in-law when he tried to stop him. By his own admission, defendant has had numerous run-ins with the law. He was convicted of robbery in 1993 and possession of cocaine for sale and resisting arrest in 1994. He violated his parole in 1995 by threatening a woman with a knife when she refused to have sex with him, and was convicted of grand theft in 1997. At the time of his arrest on the present charges, he was facing charges for possession of a stolen, concealed semiautomatic firearm.

[T]he three strikes law not only establishes a sentencing norm, it carefully circumscribes the trial courts power to depart from this norm . . . . In doing so, the law creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper. (Carmony I, supra, 33 Cal.4th at p. 378.)

Defendants abysmal recidivist record and violent past conclusively show him to be precisely the type of revolving door career criminal to whom the Three Strikes law is addressed. (Carmony I, supra, 33 Cal.4th at p. 379, quotingPeople v. Stone (1999) 75 Cal.App.4th 707, 717.) As such, the courts decision not to strike the prior robbery conviction was neither irrational nor arbitrary and therefore did not constitute an abuse of its discretion. (Carmony I, at p. 379.)

C. Cruel or Unusual Punishment

The trial court sentenced defendant to a total prison term of 30 years four months, computed as follows: the upper term of six years on the robbery count, doubled to 12 years on account of the prior strike ( 667, subds. (b), (e)(1)); a consecutive 10-year term for the firearm use enhancement ( 12022.53, subd. (b)); consecutive terms of two years on the conviction of assault with a firearm and 16 months due to the section 12022.5, subdivision (a)(1) enhancement; and, finally, a consecutive five-year sentence on the prior prison term enhancement ( 667, subd. (a)).

Defendant boldly claims that this sentence violated the Eighth Amendments prohibition on cruel or unusual punishment and its counterpart within the California Constitution. However, because he failed to make any objection in the trial court that his sentence was constitutionally prohibited as cruel or unusual punishment, the point has been forfeited. (People v. Norman (2003) 109 Cal.App.4th 221, 229.)

In any event, we find the contention specious. While appellate counsel devotes several pages of her brief to case law setting forth the correct standard, the arguments she makes are either frivolous or irrelevant.

Counsels extensive use of this courts decision on remand in People v. Carmony (2005) 127 Cal.App.4th 1066 (Carmony II) to support her argument that the punishment here was cruel and unusual is disingenuous, if not outright misleading. In that case, the defendant was sentenced to a prison term of 25 years to life as a third strike offender upon a conviction of failing to update his registration as a sex offender within five working days of his birthday. (Id. at pp. 1071-1072; see former  290, subd. (a)(1)(C).) We held that a 25-year recidivist sentence imposed solely for failure to provide duplicate registration information is grossly disproportionate to the offense, shocks the conscience of the court and offends notions of human dignity, it constitutes cruel and unusual punishment under both the state and federal Constitutions. (Carmony II, at p. 1073.)

This case bears no resemblance to Carmony II. Defendant is a career criminal who was convicted of a home invasion robbery and assault with a firearm. Nothing about defendants background or the nature of his present crimes cries out for judicial nullification of his 30-year sentence on constitutional grounds. (See Ewing v. California (2003) 538 U.S. 11, 30-31 [155 L.Ed.2d 108, 123] [25 years to life for grand theft of golf clubs was not cruel and unusual]; Lockyer v. Andrade (2003) 538 U.S. 63, 76-77 [155 L.Ed.2d 144, 159] [sentencing recidivist to two 25-year-to-life terms on two counts of petty theft not cruel or unusual under either state or federal Constitutions]; Rummel v. Estelle (1980) 445 U.S. 263, 266 [63 L.Ed.2d 382, 386] [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 does not violate United States Constitution].)

Defendants interjurisdictional and intrajurisdictional comparison of his sentence with those for more violent crimes in California and other states is inapt, since the length of his sentence is, in substantial part, attributable to his recidivist behavior. California is not required to march in lockstep with other states in fashioning a penal code. It does not require conforming our Penal Code to the majority rule or the least common denominator of penalties nationwide. [Citation.] Otherwise, California could never take the toughest stance against repeat offenders or any other type of criminal conduct. (People v. Romero (2002) 99 Cal.App.4th 1418, 1433, quoting People v. Martinez (1999) 71 Cal.App.4th 1502, 1516.)

Defendants final argument that a 30-year term is cruel and unusual because recidivism declines with age, and thus the [S]tate is not entitled to exact more than [30] years under the Eighth Amendment if 19 years will protect its interests, is frivolous and unworthy of response.

D. Custody Credit

Defendant claims the trial court erred by awarding him only 799 days of presentence custody credit. ( 2900.5.) He asserts he should have been awarded 801 total days because he was arrested on October 28, 2003, and sentenced on September 23, 2005, a period of 697 days, not 695 as the trial court had calculated.^[6] As the People point out however, although defendant was arrested on October 28, he did not begin his incarceration in county jail until October 29, 2003. Thus, we accept the Peoples concession that defendant is entitled to one additional day of custody credit.

DISPOSITION

The clerk of the superior court is directed to modify the abstract of judgment to reflect that defendant is entitled to 696 days of actual custody credit rather than 695. A certified copy of the amended abstract shall be forwarded to the Department of Corrections and Rehabilitation. So modified, the judgment is affirmed.

BUTZ , J.

We concur:

BLEASE , Acting P. J.

SIMS , J.

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^[1] Undesignated statutory references are to the Penal Code.

^[2] There was a conflict in the evidence as to whether the car had an official document from the DMV affixed to the rear window. The officers testified they saw nothing of the sort, but the defense presented testimony that the tow yard operator who sold the Mercury to defendants father had taped a DMV printout to the back window, which was clearly visible. Whether the document was so affixed makes no difference to our determination of the constitutionality of the detention.

^[3] The broadcast subsequently corrected the make of the car as an El Dorado rather than a Thunderbird, but neither officer heard the correction.

^[4]Miranda v. Arizona(1966) 384 U.S. 436 [16 L.Ed.2d 694].

^[5]In Blakely v. Washington (2004) 542 U.S. 296, 301 [159 L.Ed.2d 403, 412], the United States Supreme Court reiterated and applied the rule it outlined in Apprendi v. New Jersey (2000) 530 U.S. 466, 490 [147 L.Ed.2d 435, 455]: Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.

^[6] Both parties agree that defendant earned 104 days of conduct credit.