P. v. Bailey

Filed 4/17/07 P. v. Bailey CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

Defendant Antoine Lamar Bailey was convicted of aggravated kidnapping and other charges after he and a codefendant, Dontae Warfield, displaying a pellet gun, carjacked a man and forced him to drive them in his car for about an hour. During the drive, defendant left the car once for the purpose of attempting to rob another man. The drive ended when the driver attracted the attention of police, who pulled over the car and arrested the two defendants.

Defendant contends that (1) the charge of aggravated kidnapping, added after the preliminary hearing, should have been dismissed because it was intended to penalize him for refusing to accept a plea offer, (2) the court committed instructional error, (3) the prosecutor committed misconduct, (4) the court abused its discretion in refusing to dismiss the charge of aggravated kidnapping under Penal Code[1] section 1385, and (5) his sentence constituted cruel and unusual punishment. We affirm.

I. BACKGROUND

Defendant was charged in an amended complaint, filed August 11, 2004, with kidnapping ( 207, subd. (a)), robbery ( 211), attempted robbery ( 211), and carjacking ( 215, subd. (a)). The complaint also alleged that defendant had suffered two prior felony convictions. A preliminary hearing was held over two days in March 2005. Two weeks after the preliminary hearing, an information was filed, replacing the simple kidnapping charge with a charge of kidnapping for the purpose of carjacking. ( 209.5, subd. (a).)[2]

Soon after the filing of the information, Warfield made a motion, joined by defendant, to dismiss the new charge on the ground that it was added to penalize the defendants decision to proceed with a preliminary hearing. The claim was supported by a declaration from Warfields counsel, who stated that prior to the preliminary hearing the prosecutor had offered to accept a plea of guilty from both defendants to simple kidnapping. According to the declaration, the prosecutor insisted not only that the defendants plead to [simple kidnapping] and accept five years state prison but that if they did notthey could expect to face [charges of aggravated kidnapping] after preliminary examination. It appears that at least six pre preliminary examination [sic] appearances were made between 9-20-04 and 2-17-0[5] and the DAs position was consistent during this periodthat is that the defendants ought to resolve this case or face aggravated charges after preliminary examination. After hearing argument, the trial court denied the motion.

Warfield pled guilty prior to trial. Defendant refused to accept a similar plea offer, an offer his attorney later characterized as a reasonable.

At trial, the victim of the kidnapping, Salvador Merino, testified that he was sitting in his car very early one morning. Warfield appeared at his side window holding a gun. When Merino rolled down the window, Warfield pressed the gun against his throat and told him to unlock the doors. Defendant and Warfield entered the car and rifled through the glove compartment and Merinos wallet and shoes, taking $8 in cash. Throughout, Warfield kept Merino at gunpoint. Defendant gave most of the orders.

Defendant sat in the front seat and Warfield in the back seat. Warfield handed the gun to defendant, who told Merino to begin driving, giving him directions as he drove. Merino kept his eyes on the road, after having been told that he would be shot if he looked at the two. At one point, defendant directed him to park across the street from a bank. Defendant left the car, was gone for less than five minutes, and got back into the car. During the entire incident, Merino was afraid of being hurt or killed, and he made no attempt to escape because he was afraid that he or someone else would be shot.

When a police car pulled in behind Merinos car, Merino began lightly tapping his brakes to attract attention. Attracted by the flashing lights, the officer followed and pulled the car over for a traffic violation. As Merino was pulling over, defendant handed the gun back to Warfield, who was still sitting in the back seat. The officer began checking identification and ordered the occupants to leave the car. At this point, Merino told the officer that he was the victim of a carjacking. In searching the trunk, the officer found a pellet gun near an opening from the back seat of the passenger compartment. The total time elapsed from the initial assault to arrest was about an hour.

A second victim, Geraldo Cruz, testified that during the time defendant left the car near the bank, defendant attempted to rob him. Defendant approached Cruz, grabbed him by the collar, displayed a gun, and demanded money. Cruz claimed not to have any money and opened his wallet as proof. Defendant released him and ran back to the car.

The jury found defendant guilty on all four counts.

Prior to sentencing, defense counsel submitted a request to the court to dismiss the charge of aggravated kidnapping pursuant to section 1385, which permits a court sua sponte, or at the request of the prosecution, to dismiss a criminal action. Counsel argued that the lesser sentence received by Warfield, who accepted a plea offer, defendants conduct during the crime, in which the victim was threatened but not harmed, defendants youth and difficult life history, and his limited criminal record all weighed in favor of dismissal of a conviction carrying a life sentence.

Before addressing counsels request at the sentencing hearing, the trial court heard and responded to a plea for clemency from defendants grandmother. The court began by commenting on defendants failure to accept the plea offer, characterizing it as stupidity. The court then reviewed defendants past criminal convictions, which it characterized in the following manner:Attempted burglary, possession of drugs for sale, another possession [of] drugs for sale, another possession of drugs for sale. . . . A sale of drugs, auto theft, escape, two more thefts and a battery. As an adult he has a sale of drugs, a possession of drugs. Now he has a carjack. . . . The court concluded, [R]arely do I explain my sentencing. But I look back on his record, what hes done and what he did in this case, I probably should be giving a more severe sentence.

Defense counsel then argued for dismissal of the aggravated kidnapping charge under section 1385, reiterating the themes of his sentencing letter. At one point, counsel addressed the rejected plea offer, noting, When I think of . . . the interest of justice, I really think that we . . . should not be sitting here right now, whether its [defendants] fault for not making the right decision or in many ways the District Attorneys fault for putting him in a position where he risks his own life to go to trial. The court interrupted, telling counsel, [Y]oure too intelligent of a person, youre too professional of a lawyer to make that statement. Its not the D.A.s fault. Its [defendants] fault. Hes the person that turned this deal down. . . . He was just stupid. Its total stupidity. Counsel responded, partially agreeing with the court, before continuing with his argument. At counsels conclusion, the court said, I am going to follow my tentative decision. Once again, it all comes back to [defendant]. He did the crime, hes going to do the time. Hes the one that turned down the D.A.s offer. He was sitting over there laughing at the start of the trial. Hes saying how hes going to walk out and hes going to be in the audience when the case was over. Once he saw those jurors start crying at that decision, I think he finally realized what everybody had told him all the way along.

At that point in the proceeding, defendant addressed the court directly. After he finished, the court responded, [O]nce again, you can only blame yourself. [] . . . [] I remember you coming in here laughing at the start of the jury trial, thinking this was all fun and games. I know this, I know youre represented by a superb lawyer, Mr. Dalton. I know he got other lawyers to come in and talk to you, try to talk some sense into you, but you just werent going to listen. You knew better than everybody else. You have to suffer the consequences. The court then imposed a sentence of three years plus life.

II. DISCUSSION

A. Vindictive Prosecution

Defendant contends that the trial court erred in denying his motion to dismiss based on vindictive prosecution. He argues that the prosecutors filing of the information charging aggravated kidnapping after the preliminary hearing impermissibly penalized defendant for exercising his right to a preliminary hearing and a trial.

This case is wholly governed by Bordenkircher v. Hayes (1978) 434 U.S. 357 (Bordenkircher), in which the Supreme Court concluded that no due process violation occurs when a state prosecutor carries out a threat made during plea negotiations to reindict the accused on more serious charges if he does not plead guilty to the offense with which he was originally charged. (Id. at p. 358.) In Bordenkircher, the prosecutor threatened that if the defendant did not plead guilty prior to trial, the prosecutor would return to the grand jury and obtain a new indictment on more serious charges. (Ibid.) When the defendant refused the plea offer, the prosecutor made good on his threat. (Id. at p. 359.) Prior Supreme Court cases, which featured more serious charges filed after an initial trial and prior to a retrial, had held generally that a prosecutor is precluded from punishing a defendant for exercising constitutionally guaranteed rights. (E.g., North Carolina v. Pearce (1969) 395 U.S. 711.) While the court recognized that a threat to obtain more serious charges made by the prosecutor in the course of pretrial plea negotiations might have the effect of discouraging a defendant from asserting his or her right to a trial, it held that by tolerating and encouraging the negotiation of pleas, this Court has necessarily accepted as constitutionally legitimate the simple reality that the prosecutors interest at the bargaining table is to persuade the defendant to forgo his right to plead not guilty. (Bordenkircher, at p. 364.) So long as there is probable cause to support the new charges, the court concluded, [T]he decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion. (Ibid.)

The California Supreme Court has accepted United States Supreme Court authority on this point. As our Supreme Court recently summarized the law, It is not a constitutional violation . . . for a prosecutor to offer benefits, in the form of reduced charges, in exchange for a defendants guilty pleas, or to threaten to increase the charges if the defendant does not plead guilty. [Citations.] In the pretrial setting, there is no presumption of vindictiveness when the prosecution increases the charges or, as here, the potential penalty. [Citations.] Rather, the defendant must prove objectively that the prosecutors charging decision was motivated by a desire to punish him for doing something the law plainly allowed him to do. [Citations.] (People v. Jurado (2006) 38 Cal.4th 72, 98.) Filing enhanced charges following a preliminary hearing is, under California criminal procedure, little different than seeking reindictment on enhanced charges under the federal system. Because the record demonstrates only that this prosecutor threaten[ed] to increase the charges if the defendant [did] not plead guilty (ibid.), Bordenkircher and Jurado require us to reject defendants contention.

Defendant argues that this situation is distinguishable because the prosecutor threatened to penalize defendant for exercising his right to a preliminary hearing, contending that the threat of the new charge here was . . . . repeatedly and explicitly based on defendants exercise of their right to a preliminary hearing. There are two grounds for rejecting this claim. First, the record does not support it. The declaration of defense counsel states only that the prosecutor threatened to add further charges after the preliminary hearing. It does not state that the prosecutor specifically tied the offer to the defendants forgoing their right to a preliminary hearingfor example, a suggestion by the prosecutor that the same offer would not be available once the preliminary hearing began. As the trial court noted in denying the motion, under California state criminal procedure it is not unusual for a prosecutor to determine final charges after a preliminary hearing: This was notthere was a preliminary hearing and then there was evidence taken and then an Information was filed, right? [] . . . [] So this is nothing out of the abnormal [sic] as relates to the process of [juris]prudence and criminal law, right? Because it is common for an information to be filed after the preliminary hearing, the threatened timing alone does not create an inference that the offer was tied to, or was meant as a punishment for, defendants exercising his right to a preliminary hearing.

Defendant argues that the prosecutors disclosure of his intended action in advance of the preliminary hearing demonstrates that his filing of a new information was not a response to the facts disclosed at the preliminary hearing but rather was the result of vindictiveness. While we agree that the prosecutor was not reacting to events at the preliminary hearing in filing the information containing increased charges, we do not agree that this demonstrates, or even suggests, vindictiveness. On the contrary, the prosecutors disclosure of his intended action prior to the preliminary hearing demonstrates that the increased charges were part of his plea negotiation, rather than a punishment for defendants exercise of the right to a preliminary hearing. The prosecutor merely gave the defendant an opportunity to avoid the filing of charges that, on the evidence already known to the prosecutor from the investigation, were plainly supported by probable cause.

Second, we are inclined to believe that the reasoning of Bordenkircher requires inclusion of the right to a preliminary hearing as one of those rights the prosecutor is permitted to burden under a system that tolerates plea negotiation. Just as a plea negotiation carried out prior to trial inevitably ha[s] a discouraging effect on the defendants assertion of his trial rights (Bordenkircher, supra, 434 U.S. at p. 364), a plea negotiation carried on prior to the preliminary hearing discourages the exercise of that right as well. Burdening the exercise of the right to a preliminary hearing in this manner is an inevitableand permissibleattribute of any legitimate system which tolerates and encourages the negotiation of pleas (ibid.), at least when the negotiation occurs before the hearing and when the prosecutors intended action is disclosed in advance of it. As the Supreme Court noted in People v. Michaels (2002) 28 Cal.4th 486, 514515,    [A] prosecutor should remain free before trial to exercise the broad discretion entrusted to him to determine the extent of the societal interest in prosecution. An initial decision should not freeze future conduct [because] the initial charges filed by a prosecutor may not reflect the extent to which an individual is legitimately subject to prosecution.   [Citations.] [] Here, defendant was not yet in jeopardy. The United States Supreme Court has refused to apply a presumption of vindictiveness in a pretrial setting. [Citation.] In [People v.] Edwards [(1991) 54 Cal.3d 787,] we noted that the attachment of jeopardy was an important factor in determining vindictiveness [citation], and although Edwards did not absolutely prohibit a court from presuming vindictiveness in a pretrial setting, neither Edwards nor any other California case has done so. (See also People v. Farrow (1982) 133 Cal.App.3d 147, 152 [Prosecutorial discretion in determining the charges to be filed is basic to the framework of our criminal justice system. [Citations.] Up to the time of verdict, the prosecution may amend the information to include additional offenses shown by the evidence at the preliminary hearing].)

Because this issue does not arise in the federal system, with its reliance on the grand jury to test the evidentiary support for a prosecutors intended charges, we find the Ninth Circuit cases cited by defendant to be unpersuasive. (E.g., U.S. v. Garza-Juarez (9th Cir. 1993) 992 F.2d 896, 906907.) Even assuming these cases are consistent with Bordenkircher, they necessarily concern the exercise of pretrial rights other than the preliminary hearing, which does not exist in the federal system.

B. Jury Instruction Regarding Aggravated Kidnapping

Defendant contends that the trial court erred when it refused to instruct the jury that the charge of aggravated kidnapping required the prosecution to prove that the asportation of the victim created a substantial increase in risk to him.

When People v. Daniels (1969) 71 Cal.2d 1119 (Daniels)was decided in 1969, the statute governing kidnapping for robbery, section 209, stated only that any person who kidnaps or carries away any individual to commit robbery is guilty of a crime. (Id. at p. 1125.) In Daniels, the Supreme Court interpreted the statute to exclude instances in which the forced movement of the victim was merely incidental to the commission of the robbery, such as movement within the confines of the victims home. (Id. at p. 1140.) In stating its conclusion, the court held that section 209 excludes those [robberies] in which the movements of the victim are merely incidental to the commission of the robbery and do not substantially increase the risk of harm over and above that necessarily present in the crime of robbery itself. (Id. at p. 1139, italics added.) In People v. Rayford (1994) 9 Cal.4th 1 (Rayford), the court characterized this as a two-part test, noting that kidnapping for robbery requires movement of the victim that is not merely incidental to the commission of the robbery, and which substantially increases the risk of harm over and above that necessarily present in the crime of robbery itself. (Id. at pp. 12, 20.) Rayford applied this test to section 208, subdivision (d), which defined the crime of kidnapping for rape. (Id. at p. 20.)

The statute defining the crime of kidnapping for carjacking, section 209.5, was enacted in 1993. Subdivision (b) of the statute appears to incorporate the Daniels test discussed in Rayford, but it leaves out the requirement that the asportation of the victim must substantiallyincrease the risk of harm: This section shall only apply if the movement of the victim is beyond that merely incidental to the commission of the carjacking, the victim is moved a substantial distance from the vicinity of the carjacking, and the movement of the victim increases the risk of harm to the victim over and above that necessarily present in the crime of carjacking itself. ( 209.5, subd. (b).) When section 209, which now defines kidnapping for robbery or rape, was amended in 1997, the Legislature added language similar to that of section 209.5, subdivision (b), excluding the word substantially. (Stats. 1997, ch. 817,  2, p. 4414.) Defendant argues that the Legislature intended to adopt the Daniels test in its entirety in amending section 209.5 and that the omission of the word substantially from subdivision (b) was, in effect, an oversight by the Legislature.

We do not write on a clean slate here. In discussing the amendment of section 209 in a footnote in People v. Martinez (1999) 20 Cal.4th 225 (Martinez), the Supreme Court noted, in dictum, that Section 209(b)(2) thus codifies both Rayford . . .and a modified version of the [Daniels] asportation standard. [Citations.] Unlike our decisional authority, it does not require that the movement substantially increase the risk of harm to the victim. (Martinez, at p. 232, fn. 4.) Citing Martinez, People v. Ortiz (2002) 101 Cal.App.4th 410 (Ortiz), rejected the same argument defendant makes here regarding section 209.5, noting: When the Legislature added the risk of harm element to section 209, it tracked identical language employed four years earlier when it enacted the kidnapping for carjacking statute. ( 209.5, subd. (b).) It follows that the Legislature intended that the risk of harm element have the same meaning in both statutes, and it follows that the Martinez rule applies with equal force here. Accordingly, we hold that kidnapping for carjacking ( 209.5), like aggravated kidnapping ( 209), does not require that the physical movement of the victim substantially increase the risk of harm; it is enough that commission of the offense creates a risk of harm greater than that incidental to simple carjacking. And, indeed, that is what the statute states: This section shall only apply if the movement of the victim is beyond that merely incidental to the commission of the carjacking . . . and the movement of the victim increases the risk of harm to the victim over and above that necessarily present in the crime of carjacking itself. ( 209.5, subd. (b).) (Ortiz, at p. 415.)

We are persuaded by this logic and follow Ortiz. Although defendant cites legislative history suggesting that the Legislature intended to import the Daniels standard wholesale into section 209.5, we are bound first and foremost by the language actually used in the statute. While defendant is correct that it is sometimes said that [t]he intent [of a statute] prevails over the letter (People v. Pieters (1991) 52 Cal.3d 894, 899, quoting Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735), it is even more commonly held that [i]f the language is clear, courts must generally follow its plain meaning unless a literal interpretation would result in absurd consequences the Legislature did not intend. (Coalition of Concerned Communities, Inc. v. City of Los Angeles (2004) 34 Cal.4th 733, 737.) In this case, the Legislature has clearly omitted the word substantial in two similar statutes, enacted four years apart. In the four years since Ortiz, it has taken no action to alter these statutes. Because no absurd result follows from the omission, we follow Ortiz in applying the plain language of the statute.[3]

C. Instruction on Simple Kidnapping

Defendant contends that the judgment must be reversed because the trial court had a sua sponte duty to instruct on simple kidnapping as a lesser included offense of aggravated kidnapping and failed to so instruct.[4]

California law has long provided that even absent a request, and over any partys objection, a trial court must instruct a criminal jury on any lesser offense necessarily included in the charged offense, if there is substantial evidence that only the lesser crime was committed. This venerable instructional rule ensures that the jury may consider all supportable crimes necessarily included within the charge itself, thus encouraging the most accurate verdict permitted by the pleadings and the evidence. (People v. Birks (1998) 19 Cal.4th 108, 112.) We need not decide whether the obligation to instruct on simple kidnapping existed here because, assuming arguendo that the trial court erred by failing to give this instruction, any error was necessarily harmless.

In a noncapital case, [t]he erroneous failure to instruct on a lesser included offense generally is subject to harmless error review under the standard of People v. Watson (1956) 46 Cal.2d 818 (Watson), at pages 836837. Reversal is required only if it is reasonably probable the jury would have returned a different verdict absent the error or errors complained of. (People v. Rogers (2006) 39 Cal.4th 826, 867868, fn. omitted; see People v. Breverman (1998) 19 Cal.4th 142, 165.) Section 209.5, governing kidnapping for carjacking, contains the elements of simple kidnapping plus the additional requirements of a carjacking (id., subd. (a)) and movement of the victim is beyond that merely incidental to the commission of the carjacking, the victim is moved a substantial distance from the vicinity of the carjacking, and the movement of the victim increases the risk of harm to the victim over and above that necessarily present in the crime of carjacking itself. (Id., subd. (b).)  There was ample evidence of a carjacking and movement of the victim a substantial distance and in a manner more than merely incidental to the carjacking. Merino testified that he was forced to drive for an hour. The purpose of the drive had nothing to do with the carjacking, which was long since accomplished. A reasonable jury could not, on the evidence presented, have accepted Merinos testimony and yet concluded that these elements were not present.

The only element of aggravated kidnapping in substantial dispute was the existence of increased risk to the victim.[5] Defendant argues that, in essence, because the pair used a toy gun and did not hurt Merino, he was not placed at greater risk. To begin with, the premise of this argument is dubious. A pellet gun can cause injury, even if rarely fatal. Because the defendants were apprehended in mid-crime there is no way to know their ultimate intentions, but they plainly threatened to use force on Merino if he did not cooperate. That these threats were not realized is irrelevant in determining whether the drive presented an increased risk to Merino. (People v. Lara (1974) 12 Cal.3d 903, 908.) Further, the risk of harm at the hands of the kidnappers is not the only risk created by a kidnapping by car. As noted in In re Earley (1975) 14 Cal.3d 122, 132, transporting a victim by car [gives] rise to dangers, not inherent in [an underlying crime], that an auto accident might occur or that the victim might attempt to escape from the moving car or be pushed therefrom. These dangers are compounded when the victim himself is forced to drive, particularly at gunpoint.[6] A traffic accident or an injury to Merino during an escape attemptwhether from the defendants or from other trafficwas a very real risk in these circumstances. In light of the overwhelming evidence to support a finding that there was anincreased risk to Merino above the risk presented by the carjacking alone, it is not reasonably probable that the jury would have returned a verdict of guilty of kidnapping rather than aggravated kidnapping, if given that opportunity. The failure to give the lesser included offense instruction was not prejudicial.

D. Failure to Instruct on CALJIC No. 2.71

During Merinos testimony, he recalled several statements by defendant, including an order that Merino remove his shoes, a statement that Merino was going to be [defendants] ride for the night, a direction to park across from the bank, and others. More generally, Merino testified that throughout the drive he was given instructions and it was defendant who gave most of them.

When evidence is admitted establishing that the defendant made an oral admission, the trial court ordinarily has a sua sponte duty to deliver CALJIC No. 2.71 or a similar instruction, informing the jury that such evidence must be viewed with caution.[7] (People v. Slaughter (2002) 27 Cal.4th 1187, 1200.) We have explained . . . that the purpose of the cautionary instruction is to assist the jury in determining if the statement was in fact made. [Citation.] (Ibid.) Defendant contends that the trial court erred in failing to give the cautionary instruction.

The People argue that the type of statements made by defendant, which did not directly address the facts and circumstances of the crime, were not admissions for the purpose of the obligation to give the cautionary instruction. While we agree with the People that these are not the type of statements traditionally viewed as admissions (see People v. Zichko (2004) 118 Cal.App.4th 1055, 1059), the Supreme Court has construed the obligation to deliver the cautionary instruction very broadly, holding that [the] purpose [of the obligation] would apply to any oral statement of the defendant, whether made before, during, or after the crime. (People v. Carpenter (1997) 15 Cal.4th 312, 393 (Carpenter), italics added.) In Carpenter, the defendant told the victim,   I want to rape you.   (Id. at p. 392.) The statements of defendant here, which tended to demonstrate his intent to forcibly control Merino, had a similar probative purpose. In light of Carpenter, it was error for the trial court not to give the cautionary instruction.

Nonetheless, we find no grounds for reversal because, under Watson, the trial courts error was harmless. (See Carpenter, supra, 15 Cal.4th at p. 393 [failure to give the cautionary instruction is subject to the harmless error rule].) As the People note, the jury was given specific instructions with respect to evaluating witness credibility (CALJIC Nos. 2.20, 2.21.1, 2.21.2) and weighing testimony (CALJIC Nos. 2.13, 2.22, 2.27). Further, the primary evidence against defendant was not his words but his and Warfields actions, as related by Merino. Defendants directions and comments added little to the coercive intent clearly communicated by the display of a gun and the uninvited entry into Merinos vehicle by two strangers. Defendant argues that the [j]urors needed some heads up that claims of oral statements were as easy to fabricate as the entire story, i.e., that they should be viewed with caution. While this is true, and is the purpose of the instruction, the statements of defendant simply did not play a major role, either in establishing the credibility of Merinos story or in proving the elements of the crimes. There is no reasonable probability that the outcome of the trial would have been different if CALJIC No. 2.71 had been given.[8]

E. Instruction with CALJIC No. 2.21.2

Defendant contends that the trial court erred in instructing the jury with CALJIC No. 2.21.2, which states in part that: You may reject the whole testimony of a witness who willfully has testified falsely as to a material point, unless, from all the evidence, you believe the probability of truth favors his or her testimony in other particulars. Defendant contends that CALJIC No. 2.21.2 permitted jurors to resolve dispositive credibility questions as to impeached prosecution witnesses by a preponderance standard.

As defendant concedes, the Supreme Court has approved the use of CALJIC No. 2.21.2 in this and similar contexts. (E.g., People v. Nakahara (2003) 30 Cal.4th 705, 714.) Accordingly, we find no error.

F. Prosecutorial Misconduct

During rebuttal argument, the prosecutor characterized defense counsels argument as a claim that Merino was actually a participant who had set up defendant and Warfield, an argument the prosecutor repeatedly called clever. After arguing that the evidence did not support such a theory, the prosecutor said that this is something that [defense counsel] or the defense is beginning to fabricate and create [] . . . [] after they look at all of the facts of the case. An objection to this comment was overruled. Twice the prosecutor argued, incorrectly, that counsel had originally contended that Warfield was the leader, with defendant an unwilling participant. Both times an objection to the characterization was sustained. Defendant contends that these lines of argument constituted prosecutorial misconduct.

Because of  the unique function he or she performs in representing the interests, and in exercising the sovereign power, of the state,  a prosecutor is held to a standard higher than that imposed on other attorneys. (People v. Hill (1998) 17 Cal.4th 800, 820 (Hill).) Consistent with this higher standard, prosecutors may strike   hard blows   but are   not at liberty to strike foul ones.   (People v. Talle (1952) 111 Cal.App.2d 650, 678, quoting Viereck v. United States (1943) 318 U.S. 236, 248.) On the other hand, a prosecutor may vigorously argue his or her case and   is not limited to Chesterfieldian politeness.    (People v. Jones (1997) 15 Cal.4th 119, 175, overruled on other grounds in Hill, at p. 823, fn. 1.)

Two separate standards govern prosecutorial misconduct, federal and state. Prosecutorial misconduct is reversible under the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under [California] law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury. [Citation.] (People v. Guerra (2006) 37 Cal.4th 1067, 1124.)

Prosecutorial misconduct is subject to a strict rule of waiver. An incident of alleged misconduct may not be raised on appeal unless a timely objection was made to the trial court, the basis for the objection was identified, and a request was made to admonish the jury to disregard the conduct. (People v. Brown (2003) 31 Cal.4th 518, 553 (Brown).) The purpose of the waiver rule is remedial in nature: It  seeks to give the court the opportunity to admonish the jury, instruct counsel and forestall the accumulation of prejudice by repeating improprieties, thus avoiding the necessity of a retrial. . . .  (Ibid.) The requirement of an objection and request for admonishment is excused only if (1) objection would have been futile (ibid.); (2) admonishment would not have cured the harm caused by the misconduct (People v. Sapp (2003) 31 Cal.4th 240, 279); or (3) an objection was made and overruled. (People v. Boyette (2002) 29 Cal.4th 381, 432.) A conviction will not be reversed as a result of prosecutorial misconduct unless it is reasonably probable that a result more favorable to the defendant would have been reached in the absence of the misconduct. (People v. Crew (2003) 31 Cal.4th 822, 839.)

Defendants general claim of misconduct with respect to the prosecutors argument that defense counsel was clever or engaged in trickery was waived when no objection was made. There is no reason to believe, as defendant suggests, that an objection to this line of argument would have been futile. (See Hill, supra, 17 Cal.4th at pp. 820821.) On the contrary, the court sustained the first objection defense counsel made, regarding the prosecutors incorrect claim that defense counsel had originally argued that Warfield was the leader, and no further objection was attempted until well into the prosecutors argument.

Defendant did unsuccessfully object to the prosecutors comment that the defense argument had been fabricated, but we see no misconduct in this argument. While it can constitute misconduct for a prosecutor to suggest that defense counsel is acting unethically or improperly (People v. Young (2005) 34 Cal.4th 1149, 1189), that is not what the prosecutor did here. Read in context, the prosecutors argument was that defense counsel reviewed the evidence introduced at trial and fabricated an explanation consistent with the evidence that exonerated the defendant. He urged the jury not to accept this explanation. To suggest that defense counsel attempted to explain the evidence in a manner consistent with his clients innocence is not to accuse defense counsel of improper behavior. To fabricate evidence is, of course, improper. To offeri.e., fabricateinnocent explanations for a defendants conduct that are consistent with the evidence is an important purpose of attorney argument. (See, e.g., People v. Cummings (1993) 4 Cal.4th 1233, 1302, fn. 47.)

It was, of course, improper for the prosecutor to contend incorrectly that defense counsel had originally made a different argument. This conduct, however, was twice the subject of a sustained objection. Because there was no further request for an admonition, any claim with respect to these comments is waived.

Even if the prosecutors comments had constituted misconduct, they were harmless, both individually and cumulatively. As discussed above, the jurys verdict was based on strong evidence of guilt. The comments to which defendant now objects were not particularly inflammatory and would have had little impact on the jurys decisionmaking. There is no reasonable possibility that the outcome would have been different in the absence of these arguments.

G. Denial of Defendants Request Under Section 1385

Defendant contends that the trial court abused its discretion in denying the request to dismiss the aggravated kidnapping conviction under section 1385. Defendant claims the trial court denied the motion based on vindictive consideration of [defendants] insistence on a jury trial, not the relevant facts, denying [defendant] due process of law.

Section 1385 affords a trial court limited discretion to dismiss a criminal action. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 530 (Romero).) A defendant has no right to make a motion, and the trial court has no obligation to make a ruling, under section 1385. But he or she does have the right to invite the court to exercise its power by an application to strike a count or allegation of an accusatory pleading, and the court must consider evidence offered by the defendant in support of his assertion that the dismissal would be in furtherance of justice. [Citation.] And [w]hen the balance falls clearly in favor of the defendant, a trial court not only may but should exercise the powers granted to him by the Legislature and grant a dismissal in the interests of justice. [Citation.] (People v. Carmony (2004) 33 Cal.4th 367, 375, italics added by Carmony.) The court is not required to explain its decision not to exercise its discretion under section 1385. (Id. at p. 376.)

The trial courts ruling is reviewed for abuse of discretion, to be reversed only if the ruling in question falls outside the bounds of reason under the applicable law and the relevant facts. (People v. Williams (1998) 17 Cal.4th 148, 162 (Williams).) It is an abuse of discretion to dismiss an action under section 1385 for reasons unrelated to the crime and defendant in questionfor example, to accommodate court congestion or judicial convenience, or to reward a defendant for pleading guilty. (Romero, supra, 13 Cal.4th at p. 531.) Rather, the trial court must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant should be deemed not to have committed the charge to be dismissed. (Williams, at p. 161.)

We agree with defendant that the trial court would have abused its discretion had it denied the section 1385 motion solely because defendant chose to go trial rather than accept the prosecutions plea offer. As noted in Williams and Romero, such procedural considerations are irrelevant to a decision under section 1385. Reviewing the trial courts comments in context, however, we do not understand the court to have based its decision solely, or even primarily, on defendants decision not to accept a plea offer. Rather, as the trial courts comments to defendants grandmother demonstrate, the court viewed defendants criminal history, involving theft, battery, and several drug offenses, as extensive and alarming for a man of defendants youth. The court also rejected the defense attempt to portray the present crime as less culpable because of the lack of violence and use of a pellet gun. As the court noted, I look back on his record, what hes done and what he did in this case, I probably should be giving a more severe sentence.

The trial courts references to defendants rejection of the plea offer were not made to explain its rejection of counsels request under section 1385. In part, they were made in response to defense counsels attempt to fault the prosecutor for filing a charge carrying a mandatory life sentence, a suggestion the court found unprofessional. It is clear they also reflect the courts frustration at having to impose a mandatory sentence of life imprisonment on defendant. By not accepting the plea offer, the court made clear, defendant was responsible for this circumstance. Finally, the comments illustrate an aspect of defendants personality that the trial court found troubling. At the beginning of trial, defendant apparently displayed a lack of understanding of the seriousness of the charges against him and, by extension, of the nature of his conduct in committing this crime. As the court noted, He was sitting over there laughing at the start of the trial. Hes saying how hes going to walk out and hes going to be in the audience when the case was over. The refusal of the plea offer was, in the courts mind, an illustration of this troubling attitude.

Considered as a whole, the trial courts comments make clear that it rejected defense counsels suggestion under section 1385 because it concluded that defendant committed the crime, that the crime was serious, and that imposing the mandatory sentence for aggravated kidnapping was more appropriate than dismissing the charge altogether, given defendants nature, history, and conduct. There is no basis for finding that such a conclusion falls outside the bounds of reason, thereby constituting an abuse of discretion.

H. Cruel and Unusual Punishment

Defendant contends that the imposition of the mandatory life sentence constitutes cruel and unusual punishment. He waived this contention by not raising it in the trial court. (People v. Norman (2003) 109 Cal.App.4th 221, 229.) Yet even if there were no waiver, we would find no basis for the claim.

The Eighth Amendment to the United States Constitution prohibits imposition of a sentence that is grossly disproportionate to the severity of the crime. (Rummel v. Estelle (1980) 445 U.S. 263, 271 (Rummel); Solem v. Helm (1983) 463 U.S. 277, 285286.) In determining whether a particular sentence is disproportionate, courts look to the gravity of the offense and the harshness of the penalty. (Solem v. Helm, at pp. 290291.) An intrajurisdictional and interjurisdictional comparison of punishments may also serve as a guide in making this determination. (Id. at pp. 291292.) Although prison sentences for a term of years are subject to this disproportionality standard, [o]utside the context of capital punishment, successful challenges to the proportionality of particular sentences have been exceedingly rare. (Rummel, at pp. 271, 272.)

Unlike its federal counterpart, [the California Constitution] forbids cruel or unusual punishment, a distinction that is purposeful and substantive rather than merely semantic. [Citations.] For that reason, it is construed separately from the federal prohibition against cruel and unusual punishment. (People v. Carmony (2005) 127 Cal.App.4th 1066, 1085.) Article I, section 17 of the California Constitution precludes a sentence that is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity. (In re Lynch (1972) 8 Cal.3d 410, 424, fn. omitted (Lynch); People v. Dillon (1983) 34 Cal.3d 441, 478 (Dillon).) Lynch requires a three-part analysis:  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 defendants involvement, and the consequences of defendants acts. A look at the nature of the offender includes an inquiry into whether the punishment is grossly disproportionate to the defendants 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.] (People v. Romero (2002) 99 Cal.App.4th 1418, 14311432.)[9]

Defendant argues that because of his youth, his lack of a prior prison term, and the fact that Merino was not harmed, a life sentence is grossly disproportionate. Applying the test of Lynch, we find no constitutional violation. Defendant is a young man, but he has already been convicted of a significant number of crimes. In the present crime, he robbed and then terrorized an innocent man for over an hour, using him as a forced chauffeur during a hunt for other robbery victims. While defendant used a pellet gun, this made no difference to the psychological impact on Merino, since he believed the gun to be realjust as defendant intended. The fact that no one was hurt appears to be more a consequence of luck than planning, since defendant created a situation that was dangerous both to himself and Merino. In other words, pellet gun or not, this was a very serious crime. Accepting the comments of the trial court, defendants attitude at trial demonstrated little recognition either of the seriousness of his conduct or of his responsibility for it. We find nothing in this sentence that is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity. (Lynch, supra, 8 Cal.3d at p. 424.)[10]

Defendant does not attempt to compare his sentence to those for other, more serious crimes. He argues only that his sentence was far less than that of Warfield, who pleaded guilty. Because the sentence was the result of a plea offer, which was also made available to defendant, the comparison is less than compelling.

Defendant compares his situation to that of the defendant in Dillon, supra, 34 Cal.3d 441. In Dillon, the defendant, a 17-year-old high school student with no prior criminal record, received a life sentence after a conviction for first degree felony murder. (Id. at pp. 451, 486, 487.) He was part of a group of boys who hatched a plan to steal marijuana plants from the fields of a nearby farmhouse. They took rifles and shotguns with them for protection, knowing that the owners of the farm conducted an armed patrol at night. While the defendant was lying in wait at the farm, he heard shots. When he saw the owner of the farm approach him holding a shotgun, the defendant fired his rifle at the owner in what he believed was self-defense, killing him. (Id. at pp. 451452, 482.) The defendant received a life sentence on a charge of felony murder. The Supreme Court reduced the conviction to second degree murder after concluding that even a conviction for premeditated murder would have resulted in no greater punishment and that defendant posed no threat of further criminality. (Id. at pp. 487489.)

Defendants situation is considerably different. Defendant is not a teenager but a young adult, and his record is far from clean. The substantial list of prior crimes includes two felonies. His crime was very different, too. It was thoroughly premeditated, rather than the result of spontaneous and panicked self-defense. Although it is true that defendant and Warfield did not hurt their victim physically, they willingly put him through an hour of what must have been agonizing mental suffering. Nothing in the comparison convinces us that defendants sentence was disproportionate to his crime.

III. DISPOSITION

The judgment is affirmed.

_________________________

Margulies, J.

We concur:

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Marchiano, P.J.

_________________________

Swager, J.

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[1] All statutory references are to the Penal Code.

[2] Although defendants name was not included in the carjacking charge in the initial information, he was added in an amended information filed June 15, 2005.

[3] We realize that the Supreme Court referred to a substantial increase in risk in People v. Nguyen (2000) 22 Cal.4th 872, 885886, but this reference was not intended to constitute a ruling on the issue presented here. On the contrary, the matter at issue in Nguyen was whether the harm for purposes of section 209, subdivision (b) could include psychological harm. The court concluded that it could, in part because [t]he Legislatures failure, in new section 209, subdivision (b), to retain the concept of bodily harm in connection with the required asportation seems deliberate. (Id. at p. 885.) So here, we presume that the Legislatures failure to require substantially increased risk was similarly deliberate.

[4] The People concede, and we accept without deciding, that simple kidnapping is a lesser included offense of kidnapping for carjacking in these circumstances. (See, e.g., People v. Navarro (2007) 40 Cal.4th 668, 675 [assuming without deciding that attempted simple kidnapping is a lesser included offense of attempted kidnapping for carjacking]; People v. Greenberger (1997) 58 Cal.App.4th 298, 368.)

[5] Although defendant argues that we should measure prejudice against a standard of substantially increased risk, we decline to use that standard for the reasons discussed above.

[6] Although defense counsel characterizes the drive as a fortunately uneventful, at times boring and sleepy drive, that was true only from the perspective of defendant. The victim testified that he was terrified throughout, fearing both for his safety and the safety of others because he assumed the gun was real and that defendants were prepared to use it.

[7] CALJIC No. 2.71 states: An admission is a statement made by [a] [the] defendant which does not by itself acknowledge [his] [her] guilt of the crime[s] for which the defendant is on trial, but which statement tends to prove [his] [her] guilt when considered with the rest of the evidence. [] You are the exclusive judges as to whether the defendant made an admission, and if so, whether that statement is true in whole or in part. [] [Evidence of an oral admission of [a] [the] defendant not made in court should be viewed with caution.]

[8] Nor do we find that the cumulative impact from the failure to give an instruction on the lesser included offense of simple kidnapping and an instruction under CALJIC No. 2.71 to have been prejudicial.

[9] Because defendant argues only under Lynch, we do not separately discuss the federal standard for cruel and unusual punishment.

[10] Because defendant makes no attempt to compare this sentence to that for similar crimes in other jurisdictions, we do not consider this aspect of the Lynch analysis.