P.v. Camilla

Filed 6/30/06 P.v. Camilla 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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, Gale E. Kaneshiro, Judge. Affirmed.

I.

INTRODUCTION

Defendant Raymond Anthony Camilla appeals from a final judgment following a jury trial in which he was convicted of carrying a concealed dirk or dagger in violation of Penal Code^[1] section 12020, subdivision (a)(4). After finding true the allegations that Camilla had suffered three prior serious or violent felony convictions, the trial court sentenced Camilla to 25 years to life in state prison.

Camilla challenges both his conviction and his sentence, arguing that (1) the trial court erroneously instructed the jury that in order to convict, it had to find only that Camilla "substantially concealed" the weapon rather than that he "concealed" the weapon; (2) the trial court failed to exercise its discretion when it denied Camilla's motion to strike any or all of his prior convictions; and (3) the sentence of 25 years to life violates the California and United States Constitutions' prohibitions against cruel and/or unusual punishment.^[2]

We conclude that the trial court properly instructed the jury on the issue of concealment, and that even if the instruction was incorrect, the alleged error did not prejudice Camilla. We further conclude that the court's decision not to strike Camilla's prior strikes constitutes neither an abuse of discretion, nor a failure by the court to properly exercise its discretion. Finally, we conclude that Camilla's sentence does not violate either the California or United States Constitutions' prohibition against cruel or unusual punishment. We thus affirm the trial court's judgment and sentence.

II.

FACTUAL AND PROCEDURAL BACKGROUND

A. Procedural background

On April 28, 2005, following a three-day trial, a jury convicted Camilla of one count of carrying a concealed weapon (§ 12020, subd. (a)(4)). At a later bench trial, the court found true the allegations that Camilla had suffered three prior serious or violent felony strike convictions (§§ 667, subds. (b)-(i), 668, and 1170.12).

On June 3, 2005, the trial court denied Camilla's motion to strike his prior strike convictions and sentenced Camilla to 25 years to life in state prison. Camilla filed a timely notice of appeal on June 6, 2005.

B. Factual background

Shortly after midnight on January 3, 2005, Camilla approached San Diego Police Officer Joseph DeVeaux, as DeVeaux sat in his marked patrol car outside a police storefront on G Street in downtown San Diego. DeVeaux's car door was open at the time. Camilla said to DeVeaux, "I just want you to know, I have a concealed weapon on me right now."

DeVeaux radioed Officer Michael Day, who was inside the police storefront at the time Camilla approached DeVeaux. DeVeaux asked Day to come outside to assist him. By the time Day came outside, DeVeaux had handcuffed Camilla and had asked him where the weapon was located. Camilla told DeVeaux that the weapon was in the front right pocket of Camilla's jeans jacket. DeVeaux recovered a steak knife with a six-inch blade from Camilla's jacket pocket. Day took a photograph of the knife. Officer DeVeaux testified that he drove around the area for approximately 10 minutes and asked people if they had been threatened by a man with a knife, but that no one indicated that they had been threatened.

On January 4, 2005, San Diego Police Detective Anthony Pellegrino interviewed Camilla. A partially redacted audiotape of this interview was played for the jury. Camilla told Pellegrino that he had moved to San Diego in October and that he had stayed at the Pickwick Hotel for about 10 weeks. When his money ran out, he stayed at a church for three days.

Camilla said he had stalked people in the Little Italy area four to six weeks prior to his arrest. He told Pellegrino that he later purchased another knife at the Salvation Army store and began stalking people in the downtown Gaslamp area. Camilla said he kept the knife in a jacket pocket and that he would take it out and put it under a magazine when he was planning to use it. He said he pulled his knife out of his pocket and put it under a magazine a dozen times during the three days he spent in the Gaslamp area prior to his arrest.

Camilla said that at approximately 7:00 p.m. on the night he was arrested, he followed two young women as they walked in the Gaslamp area for approximately 10 to 15 minutes. He waited outside for them as they shopped inside the Hustler store. He said he intended to stab one of them when they exited the store. When the women came outside, Camilla started to move toward them with the knife hidden under a magazine. One of the women noticed him and grabbed her friend. The two women ran away. Camilla told Detective Pellegrino that he saw fear in the woman's face, as if she "suspected something," and that he turned himself in because, after seeing the fear in that woman's face, he did not want to stab anyone.

Camilla said he did not know what caused him to want to stab people. He also said that if he had had a gun, he would have shot them. Camilla stated that he "just get[s] the urge" to commit violent acts, and that he "can't help it."

III.

DISCUSSION

A. The trial court properly instructed the jury regarding "concealment"

Camilla contends that the trial court "incorrectly interpreted [section 12020] to only require 'substantial concealment.'" He argues that the court's instruction requiring less than complete concealment was erroneous. We conclude that the court correctly instructed the jury with regard to the requirements of section 12020, and that regardless of the propriety of the instruction, Camilla suffered no prejudice as a result of the instruction given.

Camilla was charged with violating section 12020, subdivision (a)(4).^[3] The trial court instructed the jury with CALJIC No. 12.41 [Carrying a Concealed Dirk or Dagger – Weapon Defined]. The court's instruction provided, in pertinent part:

"In order to prove this crime, each of the following elements must be proved:

"1. A person carried a dirk or dagger;

"2. The weapon was substantially concealed upon his person; and

"3. 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."

Approximately one hour after deliberations began, the jury sent two notes to the court. In the first note, the jury inquired, "What constitutes 'substantial' a [sic] concealed weapon?" In the second note, the jury asked, "Is it consider[ed] a con[c]ealed weapon if a person vol[u]nteers the information?"

In answering the first question, the trial court instructed, "The word 'substantial' as used in CALJIC No. 12.41 is defined by its common usage." Camilla's attorney did not object to the court's response, and in fact, agreed with it. In response to the second question, the court instructed: "Whether the weapon was concealed or not is a factual determination for the jury, based upon the evidence." Camilla's attorney did not object to this response.

Approximately a half hour after it received the trial court's responses to its questions, the jury returned a guilty verdict. Camilla contends that the trial court erroneously instructed the jury on the issue of concealment by requiring the jury to find only that Camilla had substantially concealed the weapon, rather than requiring it to find that the weapon was completely concealed.

The People contend that because defense counsel failed to object to the instruction at trial, and because counsel affirmatively consented to instructing the jury with CALJIC No. 12.41, Camilla may not now complain that the instruction given was erroneous. The People also contend that Camilla's counsel invited this error by acquiescing to the trial court's proposed response to the jury's question regarding substantial concealment. Without deciding whether the issue was properly preserved, we conclude that it fails on the merits. (See People v. Ochoa (2001) 26 Cal.4th 398, 447 [reaching merits of jury instruction argument without determining whether defendant preserved argument].)^[4]

Camilla claims that the trial court erred by instructing the jury that a finding of substantial concealment was sufficient under the statute. He asserts that there is "no basis for concluding that anything short of total concealment should satisfy the statute[, n]or does any case hold that less than total concealment will suffice." According to Camilla, the instruction should have informed the jury that it had to find that the weapon was concealed rather than substantially concealed, in order to find Camilla guilty. We disagree.

Courts have determined that this statute does not require total concealment of a weapon in order to support a conviction. (See People v. Wharton (1992) 5 Cal.App.4th 72, 75 [evidence supporting jury finding that knife protruding from pocket was a concealed weapon sufficient to affirm conviction] (Wharton); People v. Fuentes (1976) 64 Cal.App.3d 953, 955 [dirk protruding from waistband was a concealed weapon under the statute] (Fuentes).) Rather, "[o]nly substantial concealment is required. [Citation.] 'A defendant need not be totally successful in concealing a dirk to be guilty of a violation of Penal Code section 12020, subdivision (a).'" (Wharton, supra, 5 Cal.App.4th at p. 75, quoting Fuentes, supra, 64 Cal.App.3d at p. 955.) "The mere fact that some portion of the handle [of the defendant's dirk] may have been visible makes it no less a concealed weapon." (Fuentes, supra, 64 Cal.App.3d at p. 955.) Thus, the court's instruction that the jury need find only that Camilla's knife was substantially concealed was an accurate statement of the law. Substantial concealment is all that is required under section 12025, subdivision (a), and the court did not err by so instructing the jury.

Even if the instruction was incorrect, Camilla could not establish prejudice because there is no evidence in the record that the knife he was carrying was anything other than totally concealed. Officer DeVeaux testified that before he searched Camilla for a weapon, he did not see any obvious bulges in Camilla's jacket or objects protruding from Camilla's jacket pocket where he eventually found the knife. Camilla also admitted during his taped interview that he kept the knife hidden in his jacket pocket. Thus, it is not reasonably probable that the jury would have reached a different verdict if the court had instructed the jury that concealment, rather than substantial concealment, was required.

In an attempt to create an issue regarding the state of the evidence in the record, Camilla claims that Officer DeVeaux's testimony that he could not see the knife in Camilla's pocket was sheer conjecture, apparently because the prosecution did not introduce the jacket or a photograph of the jacket in evidence. Camilla also challenges the officer's credibility, arguing that Officer DeVeaux's testimony that he and Officer Day looked for potential victims for 10 minutes after they arrested Camilla was contradicted by Officer Day's testimony that he never investigated potential victims. However, it is clear that the jury believed Officer DeVeaux's testimony, as his testimony was the primary evidence of concealment. DeVeaux testified that the knife was completely concealed. Because the jury believed Officer DeVeaux's testimony, the jury's determination would have been the same if it had been instructed that in order to convict, it had to find that the weapon was completely concealed rather than substantially concealed.

Camilla also contends that the question of substantial concealment, as opposed to total concealment, was of concern to the jury, as evidenced by the jury's notes seeking clarification of the meaning of the phrase "substantially concealed" and questioning whether a weapon could be concealed if the person admitted to possessing it and concealing it. These questions suggest that the jury was not concerned with whether the knife in question was partially or completely concealed from view, but rather, whether a weapon can be considered to be concealed if the person carrying it verbally acknowledges that he is carrying a hidden weapon. There is no reason to believe this jury would have changed its verdict if the instruction had required that the weapon be concealed rather than substantially concealed. Thus, Camilla cannot establish that this instruction, even if improper, prejudiced him.

B. The trial court understood its discretion and exercised that discretion in

deciding not to dismiss Camilla's strike priors

Camilla contends that the trial court abused its discretion in declining to dismiss his strike priors by relying upon Camilla's post-arrest statements and his past criminality. We reject this contention.

As Camilla acknowledges, we review the trial court's decision not to dismiss a strike for an abuse of discretion. (People v. Romero (2002) 99 Cal.App.4th 1418, 1434 (Romero).) "'Under [the deferential abuse of discretion] standard an appellant who seeks reversal must demonstrate that the trial court's decision was irrational or arbitrary. It is not enough to show that reasonable people might disagree about whether to strike one or more of his prior convictions. Where the record demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the trial court's ruling, even if we might have ruled differently in the first instance. [Citation.]' [Citation.]" (Ibid.) "[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 Penal Code section 1385(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 scheme's 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.)

Camilla argues that the trial court "failed to consider whether in light of the nature and circumstances of appellant's present felony offense, when considered together with appellant's background, character, and prospects, appellate should be deemed outside the spirit of the scheme of the 'three-strikes' law . . . ." He contends that the court focused too heavily on his post-arrest statements and his past criminality, and placed too little emphasis on his current "non-serious, non-violent 'wobbler' offense," thereby reaching an inappropriate result. We disagree.

Although Camilla admits that the trial court could properly consider his prior criminal record, he contends that his prior strike convictions "were his only serious/violent felony offenses and they were extremely remote," suggesting that the court should not have given his prior record much weight. He notes that his prior strike convictions occurred in 1968, 1984, and 1997, and asserts that he "clearly was not 'an exemplar of the "revolving door" career criminal to whom the Three Strikes law is addressed.' [Citation.]" However, Camilla fails to acknowledge that for much of the time between his previous criminal convictions, he was in custody as a result of those convictions. In fact, Camilla's criminal history began in 1967, when he was 30 years old, with a shooting attack on his ex-girlfriend's mother. He was convicted of assault with a deadly weapon with intent to commit murder in 1968, and remained in prison until September 1977.

Camilla was arrested again in November 1978 for possession of a firearm. He returned to prison and was released from custody in July 1982. In January 1983, Camilla shot a woman as she returned home from the library. A year later he attempted to shoot the woman's uncle, but the gun misfired. Camilla told a friend of his that he had committed these crimes, and the friend contacted police. He was convicted of attempted murder with great bodily injury in 1984, and was released in 1991. In 1997, Camilla stabbed his girlfriend after an argument and was convicted of battery with a deadly weapon. After his release from prison in October 2004, he moved to San Diego. He was arrested for the current offense on January 3, 2005.

Although there was a six-year period from 1991 to 1997 during which Camilla was not incarcerated and was not arrested for any crimes, Camilla has been in and out of prison for a number of violent crimes since 1967. He has a serious and troubling criminal record. The trial court did not abuse its discretion in giving careful consideration to Camilla's criminal history.

Camilla also challenges the trial court's reliance on his post-arrest statements, claiming that these statements are "not what the Supreme Court had in mind when it instructed the trial courts to consider 'the nature and circumstances' of the defendant's present felony." We disagree. Camilla's statements about his urges to stab someone and his admissions that he had been stalking people while hiding a knife in a magazine were made voluntarily, and were admitted in evidence at trial. These statements provide insight into the nature and circumstances of Camilla's decision to carry a concealed knife, and the court properly considered them.

The record discloses that the trial court examined a wide range of relevant information pertaining to Camilla's criminal history and his future prospects, and determined that the circumstances of Camilla's prior offenses, considered together with his admission that he had been stalking people with a concealed knife, intending to stab someone, did not support striking a prior strike offense. Based on all of these circumstances, it appears from the record that the trial court acted well within its discretion in determining that Camilla does not fall outside the spirit of the Three Strikes law, in whole or in part. (Williams, supra, 17 Cal.4th at p. 161.) We thus affirm the trial court's decision to deny Camilla's request to strike his prior strike convictions.

C. Camilla's sentence is neither cruel nor unusual punishment

Camilla maintains that the sentence of 25 years to life violates the federal and state Constitutions because it is disproportionate to his crime of carrying a concealed weapon, and it shocks the conscience and offends fundamental notions of human dignity.

1. Camilla's sentence does not violate the California Constitution.

A sentence may violate the state constitutional ban on cruel or unusual punishment "'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.' [Citation.]" (People v. Dillon (1983) 34 Cal.3d 441, 478.) In Romero, supra, 99 Cal.App.4th at pages 1431-1432, the court outlined the well established framework for considering claims of cruel or unusual punishment under the state Constitution:

"'In order to determine whether a particular punishment is disproportionate to the offense for which it is imposed, we conduct a three-pronged analysis. [Citations.] First, we examine the nature of the offense and/or the offender, with particular regard to the degree of danger both present to society. A look at the nature of the offense includes a look at the totality of the circumstances, including motive, the way the crime was committed, the extent of the defendant's involvement, and the consequences of defendant's acts. A look at the nature of the offender includes an inquiry into whether "the punishment is grossly disproportionate to the defendant's individual culpability as shown by such factors as his age, prior criminality, personal characteristics, and state of mind." [Citation.] Next, we compare the challenged punishment with the punishment prescribed for more serious crimes in the same jurisdiction. And finally, the challenged punishment is compared with punishment for the same offense in other jurisdictions.' [Citation.]"

A defendant must overcome a considerable burden to establish that the sentence was disproportionate to his level of culpability. Successful challenges to proportionality are an "exquisite rarity." (People v. Weddle (1991) 1 Cal.App.4th 1190, 1196-1197.) In applying the Romero framework, courts in numerous California cases have rejected claims that sentences under the Three Strikes law violated the state Constitution's prohibition against cruel or unusual punishment. (See, e.g., Romero, supra, 99 Cal.App.4th at pp. 1431-1432; People v. Cortez (1999) 73 Cal.App.4th 276, 286; People v. Askey (1996) 49 Cal.App.4th 381, 388.)

Camilla points out that his current offense was a "wobbler" crime, which, in the absence of his prior strikes, would be punishable by a prison term of 16 months, two years, or three years. He asserts that this sentencing range is "clearly more commensurate" with the nature of his offense, and that his offense "involved no violence or resistance to authorities whatsoever." He contends that a sentence of 25 years to life is grossly disproportionate to his crime. Camilla fails to acknowledge the severity of his crime in the context of his criminal history and his admitted motivation for carrying a concealed weapon.

Specifically, Camilla ignores the significance of his long and violent criminal history, arguing that his prior crimes are remote. For the reasons discussed above, we disagree with this characterization of Camilla's criminal past. Further, although Camilla was arrested for the current offense before he committed a violent act, Camilla admitted that he had been walking around with the knife hidden in his pocket or under a magazine, intending to stab someone. Camilla's violent history, coupled with his admitted intention to harm people with the weapon he was concealing, establishes that the 25 years to life sentence imposed here is proportionate to Camilla's culpability.

In addition to considering the nature of the current offense, "recidivism is a legitimate factor to consider when imposing a greater sentence than for a first time offense." (People v. Cuevas (2001) 89 Cal.App.4th 689, 704-705; see also People v. Martinez (1999) 71 Cal.App.4th 1502, 1512.) "[S]ociety is warranted in imposing increasingly severe penalties on those who repeatedly commit felonies. If increased penalties do not deter the repeat offender, then society is warranted in segregating that person for an extended period of time." (People v. Martinez, supra, 71 Cal.App.4th at p. 1512; see also People v. Cooper (1996) 43 Cal.App.4th 815, 823-824 (Cooper) ["Under the Three Strikes law, defendants are punished not just for their current offense but for their recidivism. Recidivism in the commission of multiple felonies poses a danger to society justifying the imposition of longer sentences for subsequent offenses. [Citation.]"].)

The fact that Camilla engaged in extremely violent crimes over a period of 37 years despite repeated incarceration indicates that Camilla was neither deterred nor rehabilitated by his prior time in prison. And, as Camilla admitted to the police, he was prepared to commit further violence. This type of repeated criminal behavior is exactly what the Three Strikes law is intended to address, as:

"The primary goals of recidivist statutes are: ' . . . to deter repeat offenders and, at some point in the life of one who repeatedly commits criminal offenses serious enough to be punished as felonies, to segregate that person from the rest of society for an extended period of time. This segregation and its duration are based not merely on that person's most recent offense but also on the propensities he has demonstrated over a period of time during which he has been convicted of and sentenced for other crimes. Like the line dividing felony theft from petty larceny, the point at which a recidivist will be deemed to have demonstrated the necessary propensities and the amount of time that the recidivist will be isolated from society are matters largely within the discretion of the punishing jurisdiction.' [Citation.]" (Cooper, supra, 43 Cal.App.4th at p. 824, quoting Rummel v. Estelle (1980) 445 U.S. 263, 284-285, 63 L. Ed. 2d 382.)

In Romero, supra, 99 Cal.App.4th at page 1433, the court upheld a sentence of 25 years to life for a defendant who had two prior nonviolent felony convictions and who stole a magazine, determining that the sentence was not cruel or unusual punishment under the California Constitution. Camilla's current offense, particularly viewed in the context of his admitted urges to stab someone, is more serious than the third offense committed by the defendant in Romero. In light of the holding in Romero, we disagree that the nature of Camilla's offense and the totality of the circumstances render Camilla's sentence grossly disproportionate to his crime.

Camilla next compares his punishment with punishments prescribed for more serious crimes in California. He asserts that his sentence is the same sentence one would receive as a first time offender for first degree murder without any special circumstance, despite the fact that Camilla "did not inflict any injuries on any victim." We reject Camilla's comparison of his sentence under the Three Strikes law to the sentence for first degree murder in the absence of prior strikes. (See, e.g., Romero, supra, 99 Cal.App.4th at p. 1433 ["'Because the Legislature may constitutionally enact statutes imposing more severe punishment for habitual criminals, it is illogical to compare [defendant's] punishment for his 'offense,' which includes his recidivist behavior, to the punishment of others who have committed more serious crimes, but have not qualified as repeat felons.' [Citation.]"].)

Finally, Camilla compares his sentence to recidivist punishments for similar crimes in other jurisdictions. Camilla contends that California's Three Strikes law "is among the harshest in the nation," and that because of this, his sentence constituted cruel and unusual punishment. We disagree. The fact "'[t]hat California's punishment scheme is among the most extreme does not compel the conclusion that it is unconstitutionally cruel or unusual. This state constitutional consideration does not require California 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.'" (Romero, supra, 99 Cal.App.4th at p. 1433, quoting People v. Martinez, supra, 71 Cal.App.4th at p. 1516.)

2. Camilla's sentence does not violate the United States Constitution

Camilla contends that his sentence also violates the Eighth Amendment's prohibition against cruel and unusual punishments. The Eighth Amendment "contains a 'narrow proportionality principle' that 'applies to noncapital sentences.'" (Ewing v. California (2003) 538 U.S. 11, 20 (Ewing) (plur. opn. of O'Connor, J.), quoting Harmelin v. Michigan (1991) 501 U.S. 957, 996-997.) ^[5]

In Ewing, the United States Supreme Court considered whether a sentence of 25 years to life under California's Three Strikes law violated the Eighth Amendment. Ewing was convicted of grand theft for shoplifting three golf clubs valued at $ 1,200. He had previously been convicted of four serious felonies, including a robbery and three burglaries stemming from a single case. (Ewing, supra, 538 U.S. at pp. 17-18, 20.) In addition to the serious felony convictions, Ewing's criminal record included numerous theft related convictions, and convictions for drug possession, battery, burglary, unlawful possession of a firearm, and trespassing. (Id. at p. 18.)

The Supreme Court concluded that Ewing's sentence did not violate the Eighth Amendment, reasoning that "Ewing's sentence is justified by the State's public-safety interest in incapacitating and deterring recidivist felons, and amply supported by his own long, serious criminal record." (Ewing, supra, 538 U.S. at pp. 29-30.) The Court noted that although Ewing's sentence was a long one, "it reflect[ed] 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." (Id. at p. 30.)

Camilla has been convicted of numerous felony offenses, and has served numerous terms of incarceration. His prior strikes--assault with intent to murder, attempted murder, and battery with a deadly weapon--all involved violence. With regard to the current offense, the circumstances involved a significant potential for violence. In view of the nature of Camilla's prior offenses and his continuous and serious criminal history, we conclude that the sentence of 25 years to life is not grossly disproportionate to the crime charged and does not shock the conscious. We thus conclude that Camilla's sentence does not constitute cruel or unusual punishment under either the California or United States Constitutions.

IV.

DISPOSITION

We affirm the trial court's judgment and sentence.

AARON, J.

WE CONCUR:

HUFFMAN, Acting P. J.

NARES, J.

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^[1] Further statutory references are to the Penal Code unless otherwise indicated.

^[2] The Eighth Amendment to the United States Constitution prohibits imposition of "cruel and unusual punishment." (Italics added.) Section 17 of article 1 of the California Constitution prohibits imposition of "[c]ruel or unusual punishment." (Italics added.) For the sake of simplicity, when we discuss the United States and California Constitutions' prohibitions together, we will refer to the prohibited acts as "cruel or unusual punishment."

^[3] Section 12020 makes it unlawful for any person to "[c]arr[y] concealed upon his or her person any dirk or dagger."

^[4] We address the merits of Camilla's argument because he also contends, albeit in a one sentence argument, that his trial counsel was ineffective in failing to object to the instruction and/or the court's response to Jury Note 1. (See People v. Williams (1998) 61 Cal.App.4th 649, 657 ["[W]e proceed to the merits of a claim, despite a waiver, to preclude a claim of ineffective assistance based on counsel's failure to object"].) Because we ultimately conclude that the trial court's instruction on the concealment issue was proper, Camilla has failed to establish that an objection to the instruction would have been sustained, and thus has failed to establish that his counsel was ineffective. (See People v. Thomas (1992) 2 Cal.4th 489, 531 [failure to make meritless objection does not constitute ineffective assistance of counsel].)

^[5] Chief Justice Rehnquist and Justice Kennedy joined the plurality opinion, while Justices Scalia and Thomas filed opinions concurring in the judgment, concluding that the Eighth Amendment contains no proportionality principle. (Ewing, supra, 538 U.S. at pp. 31-32 (conc. opns. of Scalia, Thomas, Js.).)