Filed 7/19/17 P. v. Xavier CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

GARY XAVIER,

Defendant and Appellant.
H042439
(Monterey County
Super. Ct. Nos. SS082323B,
SS091932A)
Defendant Gary Xavier, while incarcerated on unrelated charges, attacked fellow inmates with manufactured weapons on two separate occasions. He was subsequently convicted by a jury of two counts of assault with a deadly weapon by a state prisoner (Pen. Code, § 4501, counts 1 & 3) and two counts of custodial possession of a weapon (§ 4502, subd. (a), counts 2 & 4). The jury further found true the allegations that the offenses constituted serious felonies (§ 1192.7, subd. (c)(23)) and that Xavier personally inflicted great bodily injury on each of the victims (§ 12022.7, subd. (a)). In a bifurcated proceeding, the trial court found Xavier had suffered four prior felony convictions within the meaning of section 1170.12, subdivision (c)(2).
After denying Xavier’s Romero motion, the trial court imposed a sentence of 50 years to life, consisting of consecutive sentences of 25 years to life on counts 1 and 3. The court further imposed, but stayed under section 654, sentences of 25 years to life on counts 2 and 4.
On appeal, Xavier argues the trial court erred in: (1) excluding expert witness testimony he sought to offer regarding alleged corruption among correctional officers; and (2) denying his Romero motion. Xavier also challenges his sentence, claiming that it amounts to unconstitutional cruel and unusual punishment.
We find no merit to any of Xavier’s arguments and will affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Initial charges and consolidated complaint
On September 9, 2008, the Monterey County District Attorney’s Office filed a complaint (case No. SS082323B) charging Xavier with assault with a weapon by a state prisoner (§ 4501) stemming from an incident that occurred on February 1, 2008. Following a preliminary hearing in April 2009, Xavier was held to answer on that complaint.
On August 17, 2009, Xavier was charged in a separate complaint (case No. SS091932A) with assault with a weapon by a state prisoner (§ 4501) arising from an incident that occurred on July 9, 2009. Xavier was held to answer this complaint following a September 18, 2009 preliminary hearing. On October 16, 2009, the trial court granted the prosecutor’s motion to consolidate the two cases for trial.
On March 16, 2015, the Monterey County District Attorney’s Office filed an amended, consolidated information charging Xavier with two counts of assault with a deadly weapon by a state prisoner (§ 4501, counts 1 & 3) and two counts of possession of a weapon while in custody (§ 4502, subd. (a), counts 2 & 4). The information further alleged that, as to counts 1 and 3, the offenses were serious felonies (§ 1192.7, subd. (c)(23)) and that Xavier personally inflicted great bodily injury on the victims (§ 12022.7, subd. (a)). Finally, the information alleged that Xavier had suffered four prior felony convictions within the meaning of section 1170.12, subdivision (c)(2).
B. The trial
1. The prosecution’s case
a. The February 1, 2008 incident
On February 1, 2008, Xavier was an inmate at Salinas Valley State Prison. About 3:00 p.m. that day, correctional officers James Rowe and Ramon Jaime were preparing to return inmates to housing units from the recreational yard. As Rowe unlocked a gate, he heard Jaime say, “Hey, are they playing around?” Rowe turned and saw Xavier striking another inmate, James Caico, in the head and face. Caico fell down as he tried to defend himself from Xavier. Rowe yelled out, “Get down” as he and Jaime ran towards the inmates. Xavier was on top of Caico, striking his head and face with his closed fist as Caico tried to protect himself. As the officers approached, Xavier’s cellmate, Carl Strunk, got up from a nearby bench where he had been sitting, limped over and kicked Caico once in the torso. When Rowe and Jaime were about 20 feet away, Strunk returned to the bench and Xavier got off Caico and lay down on the ground.
Jaime testified he saw Xavier striking inmate Caico in the body and head. After he handcuffed Xavier, Jamie saw a weapon on the ground. The weapon was a razor blade, approximately one to two inches in length and one-half inch wide, with tape wrapped around it for use as a handle.
As Jaime was putting handcuffs on Xavier, Rowe saw Caico get up unsteadily. Caico was bleeding profusely from his head, so Rowe told him to go sit at a nearby table. After Xavier and Strunk were secured, Caico was sent to the correctional treatment center, with multiple lacerations. He had a laceration going from his ear toward the front of his head, a laceration extending from his ear to just above his eye, a laceration along his cheek, a laceration to his left ear, and abrasions to his forehead, temple, and lips. Caico’s lacerations were not consistent with merely being hit by someone’s fist, but they were consistent with being slashed by a razor, like the one found near Xavier.
Xavier and Strunk were moved to holding cells and strip searched. Xavier had a small abrasion on one knee, but otherwise neither he nor Strunk had any visible injuries. While in the holding cell, Rowe testified that Xavier spontaneously said, “This would be a pretty good yard if they got rid of all the Chesters.” Rowe clarified that “Chesters” is used to refer to people convicted of child molestation.
b. The July 9, 2009 incident
On the afternoon of July 9, 2009, correctional officer Veronica Rodriguez and her partner were getting ready to bring the afternoon meals to the inmates in the housing unit. Rodriguez got a call from the sergeant around 3:30 p.m., advising her that an inmate was being transferred to her housing unit from administrative segregation. Xavier arrived at her office with his belongings on a cart, escorted by two officers. Xavier wanted to know who his cellmate would be, and Rodriguez informed him it would be “Inmate [Jason] Smoke.” Xavier responded, “that’s cool.”
Correctional staff escorted Xavier into the housing unit and up to the second floor where his cell was located. Smoke came out of the cell, shook Xavier’s hand and asked if he wanted help bringing his belongings upstairs to the cell. Smoke then came down the stairs to assist Xavier, whose possessions, including a television, were in a laundry cart.
Correctional staff observed that Xavier’s television did not appear to comply with prison regulations. Consequently, Xavier was informed that prison staff would hold the television until they could verify whether it was compliant. Xavier acted “fine” and “normal” during these interactions with prison staff. Correctional staff took the television from the cart and placed it in the office.
As this took place, Xavier and Smoke were moving Xavier’s belongings from the cart upstairs to his cell. After they made two round-trips, Rodriguez saw there were two bags left in the cart and Smoke and Xavier came down to pick them up. Smoke grabbed one bag and started upstairs, with Xavier following behind carrying his bag. Xavier suddenly struck Smoke in the back of the head with his fist and Rodriguez sounded her alarm. Smoke dropped the bag he was carrying and started fighting with Xavier. They came down the stairs and continued fighting in the middle of the housing unit.
Other officers responded and Rodriguez used her pepper spray on both Xavier and Smoke. She saw blood on Smoke’s t-shirt and heard the control officer yell that there was a weapon. Rodriguez stepped back and saw a weapon drop to the ground. More correctional officers arrived on the scene and secured Xavier in handcuffs, while Smoke was treated by medical staff.
Correctional officer Sharon Celaya responded to the shouting and, upon her arrival, observed Xavier, still standing, but bleeding from his right hand. Other officers were yelling at him to “prone out” and as Xavier complied, Celaya heard him yelling at the inmates in a nearby cell to “ ‘Get the weapon, get it, flush it, get rid of it.’ ” Celaya approached Xavier to handcuff him and saw a weapon, consisting of a sharpened piece of metal about six inches long and an inch wide, on the floor about three or four feet away from him. She kicked the weapon away from Xavier and away from the cell doors toward the other responding officers.
Celaya approached Smoke, who had been cuffed by another officer, and searched him. She did not find any weapons or contraband on him, but she observed he was bleeding from a wound in his back.
Smoke was transported to the correctional treatment center, where he was given some initial treatment. Correctional officer Tranada Ross, a squad officer with the investigative services unit at the prison, photographed Smoke’s injuries and collected his clothing as evidence. Ross asked Smoke who caused his injuries and he said he did not know. She asked if he wanted to make a statement, but he declined. Ross testified that, in her experience, only 5 percent of inmates who have been victimized in prison will testify or give statements to correctional officers about the incident in which they were injured.
Dr. Bruce Wilbur, a trauma surgeon, examined Smoke and determined he had multiple superficial stab wounds to the right shoulder and flank, along with a more severe stab wound to the left-lateral chest wall. A chest x-ray showed that Smoke’s left lung cavity had been pierced and his lung was 50 percent collapsed. The wound was potentially fatal if untreated.
Correctional officer Chris Wilson, with the investigative services unit, responded to the incident and began collecting evidence at the scene, taking photographs of, among other things, the weapon on the floor, the layout of the pod and the blood trails. He photographed Xavier, who was having his injured hand bandaged by medical staff. Wilson accompanied Xavier and other officers to the health annex where medical staff could more closely evaluate his injury. While there, Xavier said, “ ‘I am the suspect and I’m crying more than the victim.’ ” Wilson testified that Xavier was calm when he said this, although he was obviously in a great deal of pain. Wilson took Xavier’s clothing into evidence, noting various bloodstains on it. Xavier’s prison-issued boxer shorts had been altered, with an internal pocket, large enough to hold the weapon recovered at the scene, sewn into the crotch. Wilson testified that this is a common alteration to prison issued shorts and that inmates create these pockets to hide contraband, including weapons.
After learning that the weapon used in the attack might have been fashioned by metal cut from a bunkbed or a light fixture, correctional sergeant Marcelino Valdez searched the cell in the administrative segregation unit where Xavier had been housed immediately prior to the incident. Valdez discovered that a section of metal had been removed from a corner of the cell light fixture and replaced with cardboard, secured and covered with a soft paste material. The weapon recovered from the floor near Xavier was approximately the same size as the missing section from the light fixture.
Valdez testified that the day Xavier was released from administrative segregation and was being transferred to his new housing unit, Xavier was asked by correctional staff if he had safety concerns. Xavier said he did not. Valdez was not aware that Xavier had received any notes from other inmates or that Xavier had raised any complaints against correctional staff in the days before his transfer from administrative segregation.
c. Allegations of misconduct by correctional staff
On cross-examination, defense counsel asked Franco and Celaya if they had ever falsified reports. Both officers denied ever doing so. Counsel asked Valdez a series of questions relating to correctional staff, specifically whether correctional officers ever refuse to take reports or complaints from an inmate to superiors, whether officers are not concerned about the safety of inmates making reports, whether he personally had ever gone out of his way to retaliate against an inmate who made a complaint, and whether he had falsified reports about inmates. Valdez responded no to each question, but admitted that an inmate had brought a complaint against him, alleging he had used excessive force against the inmate and falsified reports. Valdez testified the inmate’s complaint arose from a cell search where the inmate was noncompliant and correctional staff used pepper spray on the inmate. Valdez said he was present during the incident but had not participated in it. The inmate filed an administrative appeal alleging the entire incident was orchestrated by Valdez in retaliation for the inmate filing an appeal. Valdez was not disciplined because of the incident, noting that the inmate’s appeal was filed after the search of his cell and thus the search could not have been retaliatory.
B. Defense case
1. Testimony regarding the February 1, 2008 incident
Inmate Hector Demara testified that in February 2008, he saw Xavier fighting with another inmate. A “[c]ouple other white[] [inmates]” were involved, and someone tried to rush Xavier while he was sitting down and Demara saw Xavier fighting back. He denied seeing Xavier attack anyone or use any sort of weapon, but insisted Xavier was merely defending himself. When he provided a statement to correctional officers in 2008 regarding the incident he did not tell them he had seen Xavier attacked first because he “just didn’t want to get involved.”
On cross-examination, Demara admitted he did not see the beginning of the fight or see anyone rushing toward Xavier. Rather, he saw “mostly the end . . . when everybody was still fighting, a couple people were still fighting, swinging, they [i.e., correctional officers] were telling them to get down and all that.” Demara could not recall how many people were involved in the fight, but it was “possibly two or three” besides Xavier. He described it as a “couple of fist fights” that lasted a “[c]ouple minutes . . . maybe less.” When asked if he actually remembered which fight they were talking about, Demara responded, “[m]aybe not. But I think I do recall a little. I do recall which one it is. I do. I do.” Demara admitted that he was convicted of first degree murder in 1992, and had been convicted of possession of a weapon in prison two or three times, most recently in 2007, along with convictions for trafficking controlled substances while incarcerated sometime between 2001 and 2005.
Xavier also testified in his own behalf. Asked about the incident which took place on February 1, 2008, Xavier said he had been at Salinas Valley State Prison a short time, anywhere from seven to 10 days, and his cellmate was Strunk. He had recently been transferred from High Desert State Prison, where he had been stabbed by another inmate.
It was Xavier’s third or fourth day on the yard, when he suddenly heard someone approaching him quickly from behind. As he turned to see what was happening, he was struck on the right shoulder. Because he had just been the victim of a stabbing at High Desert State Prison, Xavier assumed someone was trying to stab him again. His first reaction was to defend himself, so he spun around and started swinging and kicking at whoever had hit him.
He saw Strunk and Caico fighting just to his right and assumed they were both trying to attack him. Caico started hitting Xavier after he turned and started “defending” himself. Caico fell over backwards and Xavier saw he was bleeding. Xavier continued to defend himself, until he heard correctional officers shouting “Get down.” At that point, he knew he would be safe so he assumed a prone position on the ground.
Xavier denied ever seeing the weapon that correctional officers found at the scene, other than in the photographs he was shown after the incident. He never saw his cellmate Strunk with such a weapon either and testified that, although Strunk had some physical disabilities, he could handle all his day-to-day needs on his own. Xavier also denied ever mentioning anything about “Chesters” to Rowe and said he did not learn that Caico was a child molester until after the fight.
Xavier was upset with Strunk after the incident because he believed Strunk owed him the courtesy of notifying him beforehand about the fight so Xavier could have avoided it. However, he and Strunk resolved their differences amicably without “involv[ing] custody staff.” Strunk agreed to plead guilty to attacking Caico because “he committed the crime and he was a lifer.” Xavier said he did not threaten Strunk or otherwise convince him to plead guilty to the attack.
Strunk was called by the defense to testify regarding the 2008 incident. Strunk admitted he was involved in a fight with Xavier and “a pedophile” but said he did not remember how the fight started. Strunk testified he kicked Caico twice, but did not use a weapon during the fight, even though he previously pleaded guilty to felony battery on an inmate with a weapon in connection with the attack on Caico. He also had previously stated in court that Xavier had nothing to do with the stabbing.
Strunk was previously convicted for attempted murder in 2004 and, during that incident, he was shot in the neck, suffering a spinal injury resulting in partial paralysis of the upper body. Strunk is right-handed, but since being shot, his right hand is “minimally functional.”
According to Strunk, he saw Xavier holding a “slicer,” a razor blade affixed to a handle, just before the attack on Caico. As the attack took place, Strunk kicked Caicos once or twice while Xavier was on top of him, “[s]licing at his face, head and face.” Before the incident took place, Xavier told Strunk to “just stand there and look like I was doing something[,] [a]nd then . . . take the rap afterwards.” Strunk said that Xavier had a release date whereas he had a life sentence, so Xavier had more to lose if he were convicted of attacking Caicos. Xavier threatened him both before and after the assault on Caico, saying, “you know what you need to do, you know what’s going to happen if you don’t.” Strunk was afraid that if he did not do as Xavier asked, Strunk would be “the next victim.”
Strunk testified Caico had been asked by other inmates to produce his “paperwork” to show what crimes he had been convicted of, but was reluctant to do so. Caico was given 30 days to provide that documentation or he would be stabbed or slashed.
Strunk said that, after he was diagnosed with emphysema and was transferred out of the general population to a prison medical facility, he decided to “come clean” and see if he could get his guilty plea withdrawn or overturned. Strunk denied receiving any deal in exchange for his testimony.
2. Incidents leading up to the July 2009 attack
Xavier testified that, following the incident with Caico and before the July 2009 incident with Smoke, he had many problems with correctional officers and staff stemming from his attempts to show that officers made false reports about his responsibility for the attack on Caico. He alleged that Jaime’s incident report was inconsistent with his later statements, including his testimony at the preliminary hearing. After he filed administrative appeals against Jaime and another correctional officer, certain other correctional officers began to retaliate against him and harass him. Xavier stated that, in the months before the incident with Smoke, there were “dozens of incidents or retaliation and harassment” and that he made “[n]umerous” complaints about “[r]ights and privileges.”
Xavier said that, in 2008, he tried to bring up the investigation with Jaime and the two “exchanged some words.” The exchange became heated and derogatory with Jaime telling Xavier at some point, “ ‘You keep running your mouth back here, Xavier, you could find yourself dead in one of these cells.’ ” Jaime also mentioned “723” during their exchange, but Xavier did not understand the reference at the time. Xavier said he subsequently learned from other inmates that “723” was a “numerical code for the letters G.W., which is [the] abbreviation for Greenwall.” Xavier described Greenwall as “a group of corrupt guards that were exposed in Salinas Valley State Prison.” Following an official investigation, nine correctional officers were fired due to their involvement in activities such as “fabricating reports, planting . . . weapons, assaulting prisoners in handcuffs.”
When asked whether Jaime ever threatened him again, Xavier stated he “may have made some other off-the-cuff threats, beatings, assaults, stuff of that nature.” Xavier also claimed that another correctional officer named Garcia threatened him by saying “remember I control all your legal work,” which Xavier took to mean that Garcia would “lose, misplace, throw out my submissions of legal work.”
Xavier said he was subjected to various kinds of retaliation from other correction officers, consisting of “[g]eneral disrespect[,] [h]ostility[,] [d]enial of program rights . . . Law library access, things of this nature.” However, he testified also that “it’s tough to [say] what’s retaliation and what’s just common.” On cross examination, Xavier admitted he had been accused of both threatening correctional officers and assaulting correctional officers, but denied ever doing so.
Sometime prior to June 2009, Xavier wrote to his attorney, as well as the Office of the Inspector General, about his allegations that correctional officers had made false reports regarding the incident with Caico. He did not receive any response from the Office of the Inspector General until after July 9, 2009, which was the date of the incident involving Smoke.
In late 2008 or early 2009, Xavier testified he received a “kite” (note) from another inmate named “Billy” which read something like “Have your shit and be ready, you’ve got a hard checking coming.” A “hard checking” meant that Xavier would be assaulted with a weapon and possibly killed. Xavier believed he was being threatened due to an incident that occurred in November 2008. At the time, Xavier was in administrative segregation and another inmate, named Galloway, was being placed in Xavier’s cell. The night before, Xavier saw a weapon being transferred to Galloway and he knew that Galloway was going to stab him. Both Xavier and Galloway were in handcuffs as Galloway was escorted into the cell. As soon Xavier’s handcuffs were removed, he attacked Galloway before correctional officers could remove his handcuffs.
Xavier did not provide the threatening kite he received from “Billy” to a correctional officer. However, at a pre-committee meeting he attended on July 8, 2009, Xavier informed the prison staff that he feared for his safety and wanted to be placed in protective custody. Xavier said the officers at the meeting laughed at him and said “You are a tough guy Xavier; now you want protective custody; now you are going to turn to us; all the litigation.”
3. The July 9, 2009 incident
Xavier attended the July 9, 2009 committee meeting with prison staff to determine if he should be transferred from administrative segregation to a general population housing unit. Xavier claimed that during the meeting he told the prison staff members that he was concerned for his safety and twice asked that they place him in protective custody. A staff member told him to shut up. The second time Xavier requested protective custody, the chief deputy warden told the escorting officers, “ ‘Get him the fuck out of here.’ ” A correctional officer grabbed Xavier by the arm and dragged him back to his cell.
Soon thereafter, Xavier was told he was being transferred to general population housing. Officers arrived to escort him to his new housing assignment. Xavier testified that the officers did not search him or his property before taking him to the new unit.
Before he was transferred, Xavier had sewn a pocket into his boxer shorts and fashioned a weapon “[b]ecause [he] could see what was occurring . . . [with] the kite, the threats.” Xavier believed he “was in bad standing with the white[] [inmates].” As the officers arrived to escort him, Xavier hid the weapon in the pocket inside his boxers.
Xavier did not bother telling either of the officers who were tasked with escorting him about the threats against him, because there was “no point in talking to a line staff” when senior staff had already dismissed his concerns. He did ask that they remove his restraints so he could defend himself. Xavier testified that everyone knew he would be attacked because “it’s all orchestrated. Smoke knows, I know, staff knows.” Nevertheless, the officers refused to remove Xavier’s restraints.
They escorted Xavier to the front of his new cell, and he saw Smoke inside, running in place. Smoke’s fists were clenched and he was “mad dogging” Xavier with an angry look. Xavier again asked that his restraints be removed, but the officers ignored him and opened the cell door. Xavier stuck out his hand toward Smoke, and the two shook hands.
After the officers removed Xavier’s restraints, he and Smoke went downstairs to begin moving Xavier’s property from the laundry cart into his cell. Xavier said Smoke was behind him the whole time, but Xavier kept an eye on him. The correctional officers started to leave the unit until only one officer, Rodriguez, remained. Rodriguez walked out during the last trip Smoke and Xavier made, but as soon as she was out of sight, Xavier saw Smoke come at him from behind. Xavier ducked and ran down the stairs, where he pulled his weapon out of his boxer shorts. Xavier saw Smoke was armed with a similar weapon. As Smoke charged, swinging at him with his weapon, Xavier ducked underneath the blow and hit Smoke once or twice with his own blade. He backed away and told Smoke to get down on the ground, saying “I don’t want no problems.” Smoke ignored him and charged at him three or four more times. Smoke somehow never managed to hit Xavier, but Xavier stabbed or slashed Smoke multiple times.
Officers ran in, yelled at both Xavier and Smoke to get on the ground and used their pepper spray, hitting Smoke in the face. Smoke ran away from Xavier toward one of the cells. Xavier ran toward another cell and tried to stick his weapon underneath the door, telling the occupants to get rid of it. However, one of the inmates kicked the weapon out of his cell and back into the main area of the housing unit. Xavier thereafter submitted to officers and was handcuffed.
4. Xavier’s prior convictions
Xavier testified he was convicted in 2002 for five separate robberies he committed in 1998 and 1999. He said he was armed with a “fake weapon,” specifically a “BB gun, pellet gun, without an air cartridge” in three of the robberies, and he was armed with a buck knife during the other two. The two robberies involving a buck knife carried enhancements for using a dangerous or deadly weapon.
C. The rebuttal case
Correctional captain Jeffrey Hughes testified as a rebuttal witness about the July 9, 2009 classification committee hearing where Xavier’s housing placement was decided. In the three years prior to that meeting, Hughes said he spoke with Xavier somewhere between 50 and 60 times, and Xavier would always tell Hughes he had no safety or security concerns about being placed back in the general population. Hughes, however, believed that Xavier did have safety concerns with the other white inmates at the prison and told him so. Prior to the hearing on July 9, Hughes had another staff member investigate to verify Xavier’s standing among the other white inmates. Hughes learned from this investigation Xavier had an enemy housed in facility C, but there was no proof he was in poor standing with the white inmates generally. Xavier did not express any concerns about his safety during the hearing. Thus, the committee cleared Xavier for release to facility D. Hughes denied that the reports generated by the committee were false, and said he had never “had occasion to find a report . . . to be purposefully inaccurate” in his 19 years as a correctional officer. He admitted to being aware that some correctional staff at Salinas Valley State Prison had gotten in trouble for writing false reports.
D. Jury verdict and court trial on Xavier’s prior convictions
Following deliberations, the jury found Xavier guilty of two counts of assault with a deadly weapon by a state prisoner (§ 4501, counts 1 & 3) and two counts of custodial possession of a weapon (§ 4502, subd. (a), counts 2 & 4). The jury also found true the allegations that these offenses constituted serious felonies (§ 1192.7, subd. (c)(23)) and that Xavier personally inflicted great bodily injury on the victims while committing the offenses (§ 12022.7, subd. (a)).
In a bifurcated proceeding, the court found true that Xavier had suffered the following prior convictions: (1) on April 6, 1994, in Marin County Superior Court of four counts of robbery (§ 211); (2) on August 24, 1994, in San Mateo County Superior Court of one count of robbery (§ 212.5, subd. (b)); (3) on July 11, 1995, in San Francisco County Superior Court of eight counts of robbery (§ 212.5, subd. (b)); and (4) on April 12, 2002, in San Francisco County Superior Court of five counts of second degree robbery (§ 212.5, subd. (c)) with enhancements for prior convictions.
E. Sentencing
After denying Xavier’s Romero motion, the trial court imposed consecutive 25 years to life terms on counts 1 and 3, to be served consecutive to any other terms Xavier was presently serving. The court also imposed, but stayed under section 654, 25 years to life sentences on counts 2 and 4.
II. DISCUSSION
A. No abuse of discretion in excluding Xavier’s expert witness on prison guards
Xavier argues the trial court abused its discretion and violated his constitutional rights by excluding testimony from an expert witness who would have testified regarding alleged corruption among prison guards.
1. Relevant factual and procedural background
Following Xavier’s testimony, the defense sought to call Jim Esten as a “prison expert” to testify about the significance of the number “723,” its relationship to the “Greenwall,” and the concept of a “hard check” within a prison setting. Defense counsel stated that Esten had 30 years of experience with the Department of Corrections and Rehabilitation. Since 1994, Esten had worked as a “consultant and expert, interviewing prisoners, interviewing correctional officers,” and “looking into prison policies, prison conditions, prison relationships between staff and inmates.”
Defense counsel proffered that Esten would explain the term “723” and its connection to the Greenwall, a group which was and is a part of the culture at Salinas Valley State Prison. Esten would also testify that the actions taken by certain correctional officers, as described by Xavier, were consistent with retaliation by the Greenwall. According to defense counsel, Esten would opine that these factors inhibited Xavier’s ability to have prison officials address his safety concerns and gave rise to the circumstances leading to his fight with Smoke.
With respect to the kite Xavier received, informing him that he was subject to a “hard check,” Esten would testify about that term and explain to the jury that such threats are typically issued by prison gangs. This testimony would help show that Xavier had a “reasonable fear . . . for his safety” such that he was justified in defending himself using deadly force.
The prosecutor objected to allowing Esten to testify on these subjects, arguing that Xavier’s testimony was that only one correctional officer, specifically Jaime, mentioned “723” to him at Salinas Valley State Prison and that Jaime was now deceased. In addition, Esten’s familiarity with Salinas Valley State Prison was not current, as it only encompassed conditions at the prison between 2003 and 2004. Thus, Esten’s testimony would be highly speculative and was only being offered to buttress and legitimize Xavier’s prior testimony about retaliation by correctional officers.
The trial court excluded Esten’s testimony under Evidence Code section 352, stating that “the information about the Greenwall is tangential at this point, it’s cumulative, and it would be unduly time consuming and would cause confusion about the issues.” The court also explained that Xavier’s own testimony sought to establish that he feared for his safety and that life in prison was, in general, “pretty horrifying.” However, the ultimate question for the jury was “who started [the fights] and whether . . . Xavier was [acting] in self-defense.”
2. Standard of review and applicable legal principles
Trial courts have the discretion to exclude otherwise admissible evidence pursuant to Evidence Code section 352 “if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” “As a general matter, the ordinary rules of evidence do not impermissibly infringe on the accused’s right to present a defense. Courts retain, moreover, a traditional and intrinsic power to exercise discretion to control the admission of evidence in the interests of orderly procedure and the avoidance of prejudice.” (People v. Hall (1986) 41 Cal.3d 826, 834; People v. Cudjo (1993) 6 Cal.4th 585, 611 (Cudjo).) “We review a trial court’s evidentiary rulings under [Evidence Code section 352] for abuse of discretion.” (People v. Doolin (2009) 45 Cal.4th 390, 437.) A ruling excluding evidence under Evidence Code section 352 will be overturned on appeal only if the trial court “exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.” (People v. Jordan (1986) 42 Cal.3d 308, 316; People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)
Consequently, a trial court has broad discretion in deciding whether to admit or exclude expert testimony under Evidence Code section 352, and its decision will not be reversed on appeal unless a manifest abuse of discretion is shown. (People v. McDowell (2012) 54 Cal.4th 395, 426; People v. McAlpin (1991) 53 Cal.3d 1289, 1299; People v. Sandoval (2008) 164 Cal.App.4th 994, 1001.)
3. Constitutional claims
The People argue that Xavier, by failing to raise any constitutional objections to the exclusion of his expert’s testimony below, has forfeited any such claims on appeal. We disagree to the extent that these claims are premised on the assertion that, in addition to being erroneous under Evidence Code section 352, the trial court’s ruling “ ‘had the legal consequence of violating the Constitution.’ ” (People v. Gutierrez (2009) 45 Cal.4th 789, 809.)
That being said, Xavier’s right to present a defense at trial does not automatically override a court’s exercise of discretion under Evidence Code section 352. “ ‘As a general matter, the ordinary rules of evidence do not impermissibly infringe on the accused’s [constitutional] right to present a defense. Courts retain . . . a traditional and intrinsic power to exercise discretion to control the admission of evidence in the interests of orderly procedure and the avoidance of prejudice.’ ” (Cudjo, supra, 6 Cal.4th at p. 611.) A defendant does not have a constitutional right to present all relevant evidence in his defense, no matter how limited in probative value such evidence will be, and thereby preclude the trial court from using Evidence Code section 352. (People v. Babbitt (1988) 45 Cal.3d 660, 682-683.) “It follows, for the most part, that the mere erroneous exercise of discretion under such ‘normal’ rules does not implicate the federal Constitution. Even in capital cases, we have consistently assumed that when a trial court misapplies Evidence Code section 352 to exclude defense evidence, . . . the applicable standard of prejudice is that for state law error, as set forth in People v. Watson (1956) 46 Cal.2d 818, 836 . . . .” (Cudjo, supra, at p. 611.)
4. No abuse of discretion in excluding the proffered expert testimony
The trial court did not abuse its discretion by excluding Esten’s testimony.
Xavier sought to raise doubts about the credibility of all correctional officers through extrapolation. Esten was to testify that certain guards at Salinas Valley State Prison—none of whom were involved in or testified in this case—had been found to have falsified reports involving incidents inside the prison and even planted weapons and that these guards were part of a clandestine group of correctional officers known as the Greenwall. Xavier asserts that this testimony would have established that corrupt guards might have planted the weapon involved in the assault on Caico, and that Jaime might have lied about the incident.
Certainly, a defendant is entitled to challenge the credibility of a testifying officer by introducing evidence of that officer’s prior misconduct. (See People v. Castain (1981) 122 Cal.App.3d 138, 141-143 [trial court improperly excluded evidence of arresting officer’s prior incidents of excessive force where the officer alleged that the defendant forcibly resisted arrest].) However, where the evidence is only that the testifying officer works at the same facility where other officers engaged in misconduct at some prior unspecified point in time, and there is no evidence that the testifying officer knew of or engaged in that misconduct, the relevancy link is stretched to the breaking point. Essentially, Xavier is asserting that the credibility of the officers who testified against him in this case should be suspected merely because they happen to work at a prison where other correctional officers were previously found to have acted improperly.
In this matter, Xavier could discover, through numerous pretrial Pitchess motions, any past claims of misconduct against the correctional officers involved in this case. He had the ability to examine the correctional officers regarding those claims of misconduct either in the past or in relation to the offenses for which Xavier was on trial. Xavier testified on his own behalf about the Greenwall, as well as his claims that prison officials were retaliating against him and setting him up to be attacked. Ultimately, however, the jury was called upon to decide whether Xavier was the aggressor in each attack, as the officers testified, or whether he was acting in self-defense on each occasion, as he claimed.
In addition to the lack of relevance, Esten’s testimony on the Greenwall would have necessarily consumed a significant amount of time and possibly confused the jury about what was at issue. Following Esten’s testimony about the Greenwall, including its origins, its actions, as well as how it was discovered and whether it continued to operate inside the prison walls, the People would call rebuttal witnesses. Further, the People would likely have to recall the officers who testified previously to ask them what they knew about the Greenwall and whether they, or any correctional officers, were associated with it.
We disagree that exclusion of Esten’s testimony precluded Xavier from presenting a defense. Even without Esten, Xavier gave his personal account of each incident, setting forth the circumstances that supported his claim that he was acting in self-defense each time. He called other witnesses, such as Demara and Strunk, to corroborate his testimony regarding the attack on Caico in 2008. Xavier was permitted to testify that he had, contrary to the officers’ testimony, reported his safety concerns to prison officials but was ignored. He was permitted to testify that correctional officers threatened and retaliated against him for his efforts to challenge the findings that he possessed a weapon when he fought with Caico.
Xavier’s counsel cross-examined the correctional officers who testified and attempted to raise concerns about their credibility or their ability to recall the details of what happened in Xavier’s altercations with Caico and Smoke. Xavier had ample opportunity to present evidence to support his claims that he fought with both Caico and Smoke only to defend himself from their unprovoked assaults. The exclusion of Esten’s testimony that certain correctional officers—none of whom testified in this case—are part of a clandestine group which falsifies reports, plants weapons, and fosters inmate on inmate violence in retaliation against perceived troublemakers like Xavier did not impermissibly infringe on Xavier’s right to present a defense and did not violate his federal constitutional rights. (People v. McNeal (2009) 46 Cal.4th 1183, 1203.)
5. Assuming the trial court erred, the error was harmless
Even assuming the trial court abused its discretion in excluding Esten’s testimony, any error was harmless. Errors regarding the admission of expert testimony are analyzed under the standard articulated in People v. Watson, supra, 46 Cal.2d 818. (Cudjo, supra, 6 Cal.4th at p. 611.)
Based on a review of the evidence presented at trial, it is not reasonably probable that admitting Esten’s testimony would have led to a result more favorable to Xavier. Xavier’s testified he was acting in self-defense in both incidents. He denied that he had or used a weapon when he fought with Caico, and said that Smoke attacked him first, using a weapon.
Many witnesses testified that Xavier was, in fact, the aggressor in both fights. Jaime testified that he saw Xavier attack Caico without any provocation whatsoever. Rowe observed Xavier punching Caico after the fight began, and described Xavier as being the aggressor. Strunk testified Xavier had a weapon with him shortly before the assault on Caico, and further said that Xavier coerced him into taking the blame for the attack. Caico’s injuries were consistent with being slashed with the exact type of weapon officers found on the ground underneath Xavier, and Xavier told a correctional officer after the attack that the prison yard would be a better place if they got rid of child molesters, such as Caico.
As to the incident involving Smoke, Rodriguez testified she saw Xavier punch Smoke from behind as they walked up the staircase carrying Xavier’s belongings. Not a single officer corroborated Xavier’s testimony that Smoke was armed as well. Only one weapon—the one Xavier admitted fashioning from a strip of metal in his cell—was recovered at the scene. Furthermore, Xavier’s only injuries were lacerations on his hand, caused by gripping his own weapon.
Esten would have testified about officers at Salinas Valley State Prison who, at some point in the past, were found to have falsified reports, retaliated against inmates, and planted weapons. However, Esten had no knowledge that any of the officers involved in this case were suspected of being involved in any such activities. It is not reasonably probable that Esten’s testimony would have led to a more favorable result considering this evidence.
B. No abuse of discretion in denying Xavier’s Romero motion
1. Standard of review
In Romero, supra, 13 Cal.4th 497, the California Supreme Court held that section 1385 permits a trial court to “strike or vacate an allegation or finding under the Three Strikes law that a defendant has previously been convicted of a serious and/or violent felony, on its own motion, ‘in furtherance of justice.’ ” (People v. Williams (1998) 17 Cal.4th 148, 158 (Williams); People v. Carmony (2004) 33 Cal.4th 367, 373.) The court further explained that determining whether a dismissal would be “ ‘in furtherance of justice’ ” requires consideration of “whether, in light of the nature and circumstances of [the defendant’s] 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.” (Williams, supra, at p. 161.)
“[A] trial court’s refusal or failure to dismiss or strike a prior conviction allegation under section 1385 is subject to review for abuse of discretion.” (Carmony, supra, 33 Cal.4th at p. 375.) The party attacking the sentence bears the burden “ ‘ “to clearly show that the sentencing decision was irrational or arbitrary.” ’ ” (Id. at p. 376.) Reversal is not required “ ‘ “merely because reasonable people might disagree.” ’ ” (Id. at p. 377.)
2. Analysis
Xavier argues the court abused its discretion in denying his Romero motion in its entirety because his age (48 at the time of sentencing) makes it less likely he would reoffend if he were released in 15 to 20 years, his prior strike offenses were remote in time, and the prior robbery convictions were due to his drug dependency issues. We disagree.
Among the factors a trial court must consider in weighing a Romero motion are the nature and circumstances of the present offenses. (Williams, supra, 17 Cal.4th at p. 161.) In this case, Xavier was convicted of two violent assaults on two inmates and, in both those assaults, Xavier was found to have used a deadly, inmate manufactured weapon on his victims. Smoke suffered a punctured lung, along with other wounds, and Caico was slashed in the head and face multiple times. The jury rejected Xavier’s claims that he acted in self-defense in these incidents, finding that he was the aggressor both times.
The age of Xavier’s prior felonies is a relevant, but not dispositive, consideration in the trial court’s Romero calculus. Prior to the 2008 attack on Caico, Xavier was most recently convicted (in 2002) of several robberies he committed in 1998 and 1999. Consequently, Xavier’s last conviction was approximately six years before he attacked Caico with a razor on the yard at Salinas Valley State Prison. The Three Strikes law rejects remoteness as a basis for avoiding its application, as follows: “The length of time between the prior serious and/or violent felony conviction and the current felony conviction shall not affect the imposition of sentence.” (§ 667, subd. (c)(3).) In Williams, the California Supreme Court found “not significant” the fact that 13 years passed between the defendant’s prior serious and/or violent felony convictions and the current felony conviction, because the defendant did not refrain from criminal activity during that span of time. (Williams, supra, 17 Cal.4th at p. 163.)
Neither does Xavier’s age suffice to bring him outside of the spirit of the Three Strikes law. The fact that defendant is no longer young is not a sufficient reason for striking any of the strike priors. “[M]iddle age, considered alone, does not remove a defendant from the spirit of the Three Strikes law. Otherwise, those criminals with the longest criminal records over the longest period of time would have a built-in argument that the very factor that takes them within the spirit of the Three Strikes law—a lengthy criminal career—has the inevitable consequence—middle age—that takes them outside the law’s spirit.” (People v. Strong (2001) 87 Cal.App.4th 328, 345.)
Finally, Xavier claims his prior robbery convictions were related to his drug dependence, and that his criminal behavior could be eliminated if his dependency were addressed. Yet, Xavier fails to explain, nor was there evidence presented at his trial, to connect his current offenses to his supposed dependency, let alone how addressing his substance abuse problems would make it less likely he would commit violent offenses upon release.
We find no “ ‘ “arbitrary, capricious, or patently absurd” ’ ” (Carmony, supra, 33 Cal.4th at p. 378) exercise of the court’s discretion and no “extraordinary circumstances” compelling a dismissal of Xavier’s strikes under section 1385. Consequently, the court’s denial of the Romero motion was not “so irrational or arbitrary that no reasonable person could agree with it.” (Carmony, supra, at p. 377.)
C. Xavier’s sentence is not unconstitutional
Xavier also contends his 50-years-to-life sentence constitutes cruel and unusual punishment because it is grossly disproportionate to the crime. (U.S. Const., 8th Amend.; Cal. Const., art. I, § 17.) While Xavier invokes both the state and federal Constitutions, the federal Constitution affords no greater protection than the state Constitution when it comes to punishment; consequently, we focus on the state standard. (People v. Martinez (1999) 71 Cal.App.4th 1502, 1510 (Martinez).)
Article I, section 17 of the California Constitution prohibits a punishment that is “grossly disproportionate to the offense for which it is imposed.” (People v. Dillon (1983) 34 Cal.3d 441, 478 (Dillon), superseded by statute on another ground as stated in People v. Chun (2009) 45 Cal.4th 1172, 1186.) In deciding whether a particular sentence is cruel and unusual, California courts use three “techniques”: (1) considering the nature of the offense and the offender; (2) comparing the challenged punishment to those imposed by the same jurisdiction for more serious crimes; and (3) comparing the challenged punishment to those imposed by other jurisdictions for the same crime. (In re Lynch (1972) 8 Cal.3d 410, 425-427 superseded by statute on other grounds as stated in People v. West (1999) 70 Cal.App.4th 248, 256; Martinez, supra, 71 Cal.App.4th at p. 1510.)
With respect to the nature of the offense, we must consider “the totality of the circumstances surrounding the commission of the offense in the case at bar, including such factors as its motive, the way it was committed, the extent of the defendant’s involvement, and the consequences of his acts.” (Dillon, supra, 34 Cal.3d at p. 479.) Here, Xavier engaged in unprovoked attacks on two of his fellow inmates, one of whom suffered a punctured lung. The evidence presented at trial suggested that Caico was attacked because he was suspected of being a child molester. As for Smoke, there was little evidence as to Xavier’s motive.
Turning to Xavier as an offender, we ask “whether the punishment is grossly disproportionate to [his] individual culpability as shown by such factors as his age, prior criminality, personal characteristics, and state of mind.” (Dillon, supra, 34 Cal.3d at p. 479.) Xavier was in his early 40s when he attacked Caico and Smoke. He committed those attacks while incarcerated due to his 2002 convictions for several robberies, and his lengthy criminal record reflects his inability to conform his conduct to the law. Notably, Xavier’s sentence was imposed in part because of those prior offenses as punishment for his recidivism.
Xavier focuses on his drug addiction, claiming that his earlier robberies were carried out to satisfy that addiction. As this court stated in Martinez, supra, 71 Cal.App.4th at page 1511, “drug addiction is not necessarily regarded as a mitigating factor when a criminal defendant has a long-term problem and seems unwilling to pursue treatment.” Furthermore, even if Xavier has ongoing drug dependency issues, there is no indication that his attacks on other inmates were in any sense related to drugs.
The facts of the instant offenses, as well as Xavier’s history of crime, weighs against a conclusion that his sentence is disproportionate. Thus, Xavier has failed to establish that his sentence is disproportionate under the first Lynch technique.
Xavier also notes that the sentence exceeds his life expectancy. He cites no case in which a sentence was found to be cruel and unusual on those grounds, and several published cases have rejected the contention. (People v. Haller (2009) 174 Cal.App.4th 1080, 1089; People v. Retanan (2007) 154 Cal.App.4th 1219, 1231; People v. Byrd (2001) 89 Cal.App.4th 1373, 1382-1383.) We see no reason to deviate from established case law on this issue.
For the foregoing reasons, Xavier’s cruel and unusual punishment challenge to his sentence fails.
III. DISPOSITION
The judgment is affirmed.






Premo, Acting P.J.





WE CONCUR:






Elia, J.








Grover, J.












People v. Xavier
H042439