Filed 2/6/18 P. v. Mansilla CA5




NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT


THE PEOPLE,

Plaintiff and Respondent,

v.

NOEL MANSILLA,

Defendant and Appellant.

F072898

(Super. Ct. No. 1467647)


OPINION

APPEAL from a judgment of the Superior Court of Stanislaus County. Joseph R. Distaso, Judge.
Matthew H. Wilson, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Paul E. O’Connor, Deputy Attorneys General, for Plaintiff and Respondent.
–ooOoo–
INTRODUCTION
On June 21, 2013, defendant Noel Mansilla shot and killed Adolfo Sandoval in Ceres, California. The primary dispute at trial was defendant’s mental state when he shot Sandoval.
On November 5, 2015, defendant was found guilty at the conclusion of a jury trial of first degree murder (Pen. Code § 187, subd. (a); count I) and being a felon in possession of a firearm (§ 29800, subd. (a)(1); count II). The jury found true allegations that defendant caused the victim’s death using a firearm (§ 12022.53, subd. (d)). In a bifurcated proceeding, the trial court found true allegations defendant had a prior serious felony conviction within the meaning of the three strikes law (§ 667, subd. (d)) and had served a prior prison term qualifying him for a status enhancement (§ 667.5, subd. (b)).
On December 11, 2015, the trial court denied defendant’s request to strike the prior serious and violent felony conviction pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). The court sentenced defendant to a term of 25 years to life for first degree murder, doubled to 50 years to life pursuant to the three strikes law, plus a consecutive term of one year four months on count 2. The court sentenced defendant to further consecutive terms of 25 years to life for the gun use enhancement and one year for the prior prison term enhancement.
Defendant contends the prosecutor committed misconduct by analogizing the People’s burden of proof beyond a reasonable doubt to a partly constructed Lego airplane. Defendant argues this lessened the People’s burden of proof. Further, his trial counsel was ineffective in objecting to the analogy. Defendant argues the trial court abused its discretion under Romero for failing to strike the prior serious and violent felony allegation. During the pendency of this appeal, the Governor signed Senate Bill No. 620 (2017–2018 Reg. Sess.) effective January 1, 2018, which amends Penal Code sections 12022.5 and 12022.53, giving trial courts retroactive discretionary authority to strike a defendant’s firearm enhancements alleged as to these statutes. We granted the parties leave to brief the effect of the legislative change. Other than a clerical mistake in the abstract of judgment noted by the People, we find no error and affirm the judgment.
FACTS
Prosecution Case
Defendant and Priscilla Flores were married in 2003 and had three children together. Flores told defendant in 2007 she was ending their relationship and they separated. Flores met Sandoval in 2010 and they started living together the following year along with Flores’s children. Defendant was upset when Flores told him Sandoval had moved in with her.
During a phone conversation on June 21, 2013, defendant told Flores he wanted Sandoval to meet with him around the corner from her residence. There was a restraining order directing defendant to stay away from Flores’s home. Flores denied Sandoval had told defendant he could not see his children or had told defendant he did not “‘know who [he was] messing with.’” Flores did not hear anyone threaten defendant. Flores’s mother, Maria Barrera, also heard the phone conversation and denied Sandoval said these things to defendant.
About two hours after they talked on the phone, Flores saw defendant slowly drive by her house. After passing Flores’s house and seeing Flores, defendant accelerated and then made a U-turn back toward the house; Flores ran into the house and called 911. Flores’s youngest son, her mother, and her sister-in-law were in the house. Sandoval was in the backyard.
Defendant entered Flores’s kitchen and demanded to know who threatened him. Flores and her son told him to leave. Defendant told Sandoval he would kill him. Sandoval was still in the backyard when defendant threatened him. Barrera tried to tell Sandoval and Flores that defendant was holding a gun behind his leg but she was unsure whether they heard her warning. Barrera went next door to call the police from the neighbor’s phone.
Flores had already contacted 911 and was holding the phone in her hand as defendant made his threat. The 911 recording was played for the jury and the jury received a transcript of the recording. During the recording, defendant can be heard saying to Sandoval, “I’ll kill you,” “I’ll kill you, fool,” I’ll kill you, motherfucker.” Flores can be heard repeatedly telling defendant to get out of her house. As the call progresses, Flores says, “What the fuck?” before making an inaudible comment followed by “No. No. No.” When the 911 dispatcher asks for a response after another inaudible statement from Flores, Flores responds, “I need an ambulance right away.”
Flores explained that after she yelled at defendant to get out of her house, defendant kissed their son and pulled out a black semiautomatic gun from his rear pants pocket. Defendant pushed Flores to the ground as she tried to stop him. As Flores was getting back up, defendant started shooting at Sandoval, who was still in the backyard. Sandoval took off running toward the side of the house where there was a gate to the front. Defendant ran after Sandoval, with Flores and her son following behind. As Sandoval rounded the corner of the house, defendant was still shooting at him. Flores had thrown her cell phone at defendant, attempting to stop him.
Sandoval made it through the gate on the side of the house and into the front yard with defendant following him. When they got to the front yard, defendant continued shooting at Sandoval as Sandoval had his palms on the ground and was down on one knee. Flores and her son were yelling at defendant to stop. Defendant told his son he loved him, kissed him again, ran to a car, and fled the scene. There was no physical altercation between Sandoval and defendant. Sandoval was not armed with a gun or knife.
Sandoval was not moving and had gun wounds to his torso and right arm. He had difficulty talking and answering the officers’ questions. When asked who shot him, Sandoval replied, “‘It was her son-in-law.’” Sandoval was transported to the hospital by ambulance where doctors and nurses attended to him until they called a time of death. An autopsy revealed Sandoval was hit by two bullets: one through the right forearm and the other entered his back, exiting his chest. The abdominal bullet went through Sandoval’s liver, stomach, and mesentery. There was approximately 1000 cc’s of blood in Sandoval’s abdomen from these wounds. There was more blood loss from the wound on Sandoval’s arm, though this wound was not fatal. The medical examiner concluded Sandoval died from blood loss caused by the bullet wound to his abdomen.
Aimee De La Torre, defendant’s long-time friend, disposed of defendant’s gun. Defendant told De La Torre he shot Sandoval. De La Torre dropped off defendant at a motel in Modesto.
Defense Case
One of the investigating officers questioned Maria Barrera, who told the officer that when defendant entered the house he said, “‘These are my kids.’”
Defendant testified that on the day of the shooting he was drinking vodka and orange juice after lunch. Defendant could not recall how many drinks he had. Defendant called Flores more than once because he wanted to see his children. Defendant spoke with Sandoval on the phone and told him, “Don’t get in between me and my kids, mother fucker.” Sandoval replied, “‘You don’t know who you’re fucking with.’” Defendant said he was drinking during this conversation. When asked whether he was angry or sad that day, defendant replied, “Mad. I was mad.” Defendant thought Sandoval’s comment was a threat that Sandoval would not let defendant see his children. Defendant also thought Sandoval’s comment implied Sandoval thought he was better than defendant.
Defendant explained when he walked into Flores’s house, he told Sandoval, “Who are you threatening, mother fucker? This is my family. These are my kids.” Defendant could not remember how much time passed between his phone call and when he arrived at Flores’s house. Defendant could not remember if he continued to drink during that interval. Defendant said he had bought a pint of vodka that day and drank the whole thing. Defendant drove De La Torre’s car to Flores’s home.
Defendant said that he was enraged when he reached Flores’s home. Defendant wanted Sandoval to know it was defendant’s family. Defendant did not remember Sandoval saying anything, but explained he was shouting at Sandoval that it was defendant’s family and kids. Defendant admitted he had brought a gun but remembered nothing that happened after he yelled at Sandoval until he was at the motel. The police woke defendant. Defendant said he had only wanted to confront Sandoval face-to-face because Sandoval had disrespected him and would not continue the phone conversation. Defendant denied he went to Flores’s house to beat up Sandoval, hurt him, or kill him.
During cross-examination, defendant said he knew how his gun worked and shot the gun one time the day before killing Sandoval. Defendant said he obtained the gun in October or November of 2012.
The Parties’ Closing Arguments
The prosecutor asked the jury to consider the evidence presented in the People’s case, starting with the 911 call and the tone of defendant’s voice. The prosecutor asked the jury consider whether there was slurring in defendant’s voice and to consider defendant’s assertion that he had too much to drink. The prosecutor argued the only thing defendant was intoxicated with was rage, and he asked the jury to listen to the call. The prosecutor described defendant as a man out of control with anger who was bent on killing Sandoval. The prosecutor argued there was no evidence defendant reeked of alcohol or of voluntary intoxication. Defendant got car keys, drove over to Flores’s house, had the motor skills to walk without falling down and to accurately fire his handgun multiple times while pursuing Sandoval, a moving target.
After shooting Sandoval, defendant did not collapse in the front yard in a drunken stupor; he was able to think through his actions and decide to stay in a rented motel room. The prosecutor argued defendant chose this place to retreat to because he did not want to be caught. According to the prosecutor, these were not the actions of someone who was too intoxicated. Rather, it showed cunning and planning. The prosecutor contended defendant’s drinking did not rise to the level which negated premeditation and specific intent.
The prosecutor argued this case was not one of heat of passion leading to manslaughter because there was no sudden quarrel. Although defendant testified he went over to the house to make a point, the prosecutor contended defendant went there to kill Sandoval. The prosecutor did not think there was any provocation by the victim that would provoke a person of average disposition. The prosecutor described defendant as being a person with a short fuse who angered quickly. The prosecutor pointed out the phone call was not enough to cause provocation because thousands of people have similar conversations fighting over their children and they do not hunt one another down and shoot each other in the back.
The prosecutor noted an average person may get upset and even say some nasty things, but does not go out and kill someone in front of his or her own children. Referring to the pattern instruction on heat of passion, the prosecutor explained “heat of passion does not require anger, rage, or one specific emotion. It can be any violent and intense emotion that causes a person to act without due deliberation and reflection.” The prosecutor described the emotion as sudden with a sudden reaction. The prosecutor argued that after defendant had the phone call with Flores, his actions were not sudden because the drive to Flores’s home in Ceres from where he was in Modesto and the killing occurred hours after the phone call. The prosecutor applied heat of passion analysis to the court’s manslaughter instructions as well.
The prosecutor argued defendant had anger management problems, the anger stayed with him, and even with time to calm down, defendant failed to do so because he is not a person of average disposition. The prosecutor compared defendant’s rage to someone who had decided to ratchet up the violence after exchanging angry words; he concluded defendant committed first degree murder. The prosecutor asked the jury to read the jury instructions and consider whether the elements of the crime had “been met based on the evidence that’s been introduced in this trial.”
The prosecutor explained to the jury that he did not believe defendant qualified for heat of passion or provocation because defendant had so much time to cool off after the phone call with Flores. The prosecutor reiterated defendant had a short fuse, an issue with anger, was intoxicated with rage, and did not act like a person with an average disposition. The prosecutor briefly reviewed evidence supporting the allegation that defendant was a felon in possession of a firearm.
Turning to the question of reasonable doubt, the prosecutor noted the jury might have some questions about what happened, but the instruction on reasonable doubt “talks about [how] we cannot eliminate every possible doubt. Everything is subject to some possible doubt. The issue is did we prove this case beyond a reasonable doubt? And the answer is yes.”
The prosecutor then tried to give the following visual example of reasonable doubt: “And I always like to give the example that my son has Legos, and he likes to play this game where he puts the Legos together, and I have to guess what he’s making. And he puts these Legos together, and he just did this … last weekend, and he’s got about halfway through whatever he’s—.” Defense counsel lodged an immediate objection before the prosecutor finished his analogy and requested a sidebar conversation with the court and the prosecutor. The bench conference was not recorded. The trial court overruled the objection and told the prosecutor to proceed. Defense counsel stated for the record that “it’s an improper argument as it relates to the reasonable doubt instruction.”
The court reminded the jury it was argument and the attorneys are allowed to argue their points. The court advised the jurors they “are instructed to follow the instruction as I’ve given it to them.”
The prosecutor continued with his analogy, saying that while playing with Legos, his son would be “about halfway through making the Legos, and I can see a wing and I can see the tail of this airplane, [and I say], ‘Son, you’re making an airplane.’” The prosecutor’s son tells his father that he’s right. The prosecutor added, “Well, how do I know that? Because he hadn’t assembled the whole thing yet. But you know what? There was enough evidence there to determine what the heck he was making from the wing, from the tail.” The prosecutor explained his analogy was kind of like a trial, where there has “to be enough evidence certainly to determine whether the charges have been shown beyond, proven beyond a reasonable doubt. Not every question … you have will ever be answered in any case. But the issue was[,] was it done beyond a reasonable doubt?”
The prosecutor concluded: “And the evidence, from the testimony with Detective Perry, from the 911 call, from the evidence from [Flores], … Barrera, the evidence has shown beyond a reasonable doubt that this defendant committed first degree murder on that day.”
Responding to the prosecutor’s Lego analogy, defense counsel argued the trial court’s instruction was the reasonable doubt instruction. Counsel explained:
“… And reasonable doubt is not a metaphor, it’s not a simile, it’s not a homey image of the prosecutor playing Legos with his son.
“It is this: Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt, because everything in life is open to some possible or imaginary doubt.
“That is the work of many years, many years of cases, many legal scholars looking at this, and this is how they came up with proof beyond a doubt.
“Now, this goes with the presumption of innocence. [Defendant] is not required to prove he’s innocent, to prove he deserves some largesse of second degree murder or manslaughter or voluntary or involuntary manslaughter. He is not required to convince you that he deserves that. The People have the obligation to prove he is guilty of first degree murder. They have the duty to prove that he is guilty of any crime that you conclude that he committed.”
The trial court advised the jury on reasonable doubt using the standard pattern instructions set forth in CALCRIM No. 220. The court instructed the jury with CALCRIM No. 200, which in relevant part states the jury “must follow the law as I explain it to you, even if you disagree with it. If you believe that the attorneys’ comments on the law conflict with my instructions, you must follow my instructions.” The jury was also instructed with CALCRIM No. 104, which states in relevant part that nothing the attorneys say is evidence and their remarks during opening and closing statements are not evidence, including the questions they ask.
DISCUSSION
I. Comparing Reasonable Doubt to a Half Constructed Lego Toy
Defendant argues the prosecutor’s argument comparing the concept of reasonable doubt to his son’s construction of half of a Lego airplane constituted prosecutorial misconduct because it had the effect of lowering the People’s burden of proof to something less than reasonable doubt. We find the cases supporting defendant’s argument are distinguishable from the instant action, and further, if there was misconduct, it was harmless beyond a reasonable doubt.
During argument to the court or the jury, advocates are given significant leeway in discussing the legal and factual merits of a case. Generally, however, it is improper for the prosecutor to misstate the law, and particularly to attempt to absolve the prosecution from its obligation to overcome reasonable doubt on all of the elements of the charged offense. Bad faith by the prosecutor is not necessary to establish this error. To the extent it suggests a prosecutor must act with a culpable state of mind, the term “prosecutorial misconduct” is a misnomer. (People v. Centeno (2014) 60 Cal.4th 659, 666 (Centeno).)
When attacking the prosecutor’s remarks to the jury, the defendant must show there was a reasonable likelihood the jury misunderstood or applied the complained-of comments in an improper or erroneous manner in the context of the whole argument and instructions. In conducting this inquiry, courts of review do not lightly infer that the jury drew the most damaging rather than the least damaging meaning from the prosecutor’s comments. Centeno noted the case law was replete with innovative but ill-fated attempts to explain the reasonable doubt standard, though the court noted it had stopped short of disapproving use of reasonable doubt analogies or diagrams in argument and has assessed claims of error on a case-by-case basis. (Centeno, supra, 60 Cal.4th at p. 667.)
The prosecutor in Centeno used an incomplete and partly inaccurate map of California to graphically illustrate the concept of proof beyond a reasonable doubt. The map showed San Diego in Northern California and major cities like San Bernardino were missing. The California–Nevada border was depicted. The prosecutor asked the jury whether there could be reasonable doubt the map was of California, even with inaccurate and missing information. The prosecutor followed this observation with the comment that there can be missing evidence in a case, but the jury could still find the defendant guilty beyond a reasonable doubt. (Centeno, supra, 60 Cal.4th at pp. 665–666.)
The Centeno decision compared its facts to other cases in which prosecutors used graphic analogies to demonstrate the concept of proof beyond a reasonable doubt. In People v. Medina (1995) 11 Cal.4th 694, 744 (Medina), the prosecutor used a diagram during voir dire to illustrate the standard of proof. The diagram depicted two horizontal lines, one indicating 100 percent certainty and the second line beneath it indicating the beyond a reasonable doubt standard. The prosecutor in Medina emphasized the jurors should not hold the People to the highest standard, but to the lower standard. The Supreme Court in Medina cautioned against the prosecutor attempting to reduce the concept of guilt beyond a reasonable doubt to a line on a graph or chart. The Medina court ultimately found the error was not prejudicial because the seated jury was later properly instructed on the standard of proof and the prosecutor’s voir dire remarks were made before evidence was received. (Id. at p. 745; Centeno, supra, 60 Cal.4th at p. 667.)
Centeno noted that in People v. Katzenberger (2009) 178 Cal.App.4th 1260, 1264–1267 (Katzenberger), the prosecutor used a slide show displaying pieces of a puzzle. As six of the pieces came onto the screen, the picture became immediately and easily recognizable as the Statue of Liberty, even though two pieces that would have depicted the statue’s face and torch were missing. In response to defense counsel’s objection to the prosecutor’s analogy, the trial court in Katzenberger reread the reasonable doubt instruction to the jury. (Id. at p. 1265.)
The Katzenberger court found the presentation invited the jurors to guess or to jump to a conclusion without considering all of the evidence, an approach completely at odds with the jury’s task of assessing whether the People met their burden of proof beyond a reasonable doubt. (Katzenberger, supra, 178 Cal.App.4th at p. 1267.) Katzenberger ultimately found the error was harmless because defense counsel argued vigorously against the prosecutor’s analogy and the trial court reread the reasonable doubt instruction to the jury. (Id. at pp. 1268–1269; Centeno, supra, 60 Cal.4th at pp. 667–668.)
Centeno next reviewed People v. Otero (2012) 210 Cal.App.4th 865, which had facts very similar to those in Centeno. As in Centeno, the prosecutor in Otero used a map of California that was incomplete and had errors to illustrate the jury could resolve reasonable doubt by filling in the missing pieces to the map. (Otero, supra, at pp. 869–870; Centeno, supra, 60 Cal.4th at pp. 668–669.) Otero found the error harmless because the trial court admonished the jury to disregard the map, properly instructed the jury on the burden of proof, and the prosecution’s case was strong. (Otero, supra, at pp. 873–874; Centeno, supra, at p. 669.)
Analyzing the facts before it, the Centeno court found the error by the prosecutor was not susceptible to a harmless error analysis. Unlike the other authorities where the prosecutors argued the evidence of the case and urged the jury to look at the entire picture, the prosecutor in Centeno began her argument with the outline of California. The visual aid invited the jury to jump to a conclusion before the prosecutor recounted any other hypothesized evidence. The hypothetical was misleading because it failed to accurately reflect the evidence in the case, which Centeno noted was “far from definitive.” (Centeno, supra, 60 Cal.4th at p. 670.) Centeno noted that visual charts, diagrams, lists and comparisons based on the evidence may be effectively and fairly used in argument to assist the jury in its analysis. (Id. at p. 671.)
Centeno explained that one serious problem with the prosecutor’s argument was “[i]t strongly implied that the People’s burden was met if its theory was ‘reasonable’ in light of the facts supporting it.” (Centeno, supra, 60 Cal.4th at p. 671.) The People’s burden, however, is proof beyond a reasonable doubt and the prosecutor “left the jury with the impression that so long as [the prosecutor’s] interpretation of the evidence was reasonable, the People had met their burden.” The Supreme Court described the failure of the prosecutor’s reasoning as “manifest.” (Ibid.) Furthermore, the Supreme Court noted the prosecutor reiterated in her argument that the jury could find the defendant guilty based on a reasonable account of the evidence and “clearly diluted the People’s burden.” (Id. at p. 673.)
Centeno further found the defendant’s trial counsel was ineffective for failing to object to the prosecutor’s improper argument, noting that on appeal, the People conceded the case was a close one. (Centeno, supra, 60 Cal.4th at pp. 674–676.) Analyzing Katzenberger and Otero, Centeno noted the finding of no prejudice in those cases was based on correct instructions on reasonable doubt, defense counsel’s objections to the prosecutor’s argument, the trial court’s admonitions, and the strength of the People’s evidence. (Centeno, supra, at p. 676.) Centeno found none of these mitigating factors in its own trial. Centeno held there was a reasonable probability that, but for defense counsel’s unprofessional error, coupled with the reasonable probability the prosecutor’s argument caused one or more jurors to convict defendant based on a lesser standard of proof, the result of the proceeding would have been different and reversed the conviction. (Id. at pp. 677–678.)
The prosecutor’s statement here was not as egregious as the prosecutor’s argument in Centeno, which set forth a lower burden of proof and was stated several times. Unlike the prosecutor in Centeno, the prosecutor here acknowledged he had to prove his case beyond a reasonable doubt. Twice, however, when the prosecutor referred to his Lego plane analogy, he told the jury he could recognize halfway through that his son was constructing a plane. We agree with defendant this comment could be interpreted by jurors as reducing the People’s burden of proof.
The court in Katzenberger found the error in that case was not prejudicial even under the standard of beyond a reasonable doubt as set forth in Chapman v. California (1967) 386 U.S. 18. (Katzenberger, supra, 178 Cal.App.4th at p. 1269.) We reach the same conclusion here. In addition to the prosecutor acknowledging the People had the burden of proof beyond a reasonable doubt, the trial court correctly instructed the jury with the standard reasonable doubt instruction set forth in CALCRIM No. 220. Also in contrast to the prosecutor’s argument in Centeno, the prosecutor here vigorously and extensively argued the specific evidence supporting the People’s theory that defendant committed first degree murder. The prosecutor referenced specific instructions related to heat of passion and provocation and discussed the evidence presented at trial refuting these defenses.
Unlike defense counsel in Centeno, defendant’s attorney objected to the prosecutor’s argument prior to the unrecorded sidebar discussion. After the trial court overruled the objection, defense counsel stated for the record that he was objecting to the prosecutor’s description of the reasonable doubt instruction. Although the trial court did not reread the reasonable doubt instruction, as a result of defense counsel’s objection the court advised the jury the prosecutor’s comments were attorney argument.
Defense counsel’s closing argument carefully reviewed the reasonable doubt instruction in such close detail, a further reading of the instruction by the trial court would have added little to the jury’s understanding of the People’s burden of proof. Trial counsel’s argument was instructive and acted as an effective counterweight to the prosecutor’s Lego plane analogy.
Finally, this was not nearly as factually close a case as was Centeno. The prosecutor presented very strong evidence that not only included eyewitness testimony of those who saw or heard defendant shooting the victim, but also a 911 recording of the shooting as it occurred. The People’s case was strong. Under these circumstances, we find that even if the prosecutor’s Lego plane analogy constituted prosecutorial misconduct, any error was harmless beyond a reasonable doubt.
II. Effective Assistance of Counsel
Defendant contends his trial counsel was ineffective for failing to ask the trial court to admonish the prosecutor for committing misconduct. We disagree.
Defendant has the burden of proving ineffective assistance of trial counsel. To prevail on a claim of ineffective assistance of trial counsel, the defendant must establish not only deficient performance, which is performance below an objective standard of reasonableness, but also prejudice. Prejudice is shown when there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. (Williams v. Taylor (2000) 529 U.S. 362, 391, 394; In re Hardy (2007) 41 Cal.4th 977, 1018.) A reasonable probability is one sufficient to undermine confidence in the outcome. The second question is not one of outcome determination but whether counsel’s deficient performance rendered the result of the trial unreliable or the proceeding fundamentally unfair. (Id. at p. 1018.)
A court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Tactical errors are generally not deemed reversible. Counsel’s decisionmaking is evaluated in the context of the available facts. To the extent the record fails to disclose why counsel acted or failed to act in the manner challenged, appellate courts will affirm the judgment unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation. Prejudice must be affirmatively proved. The record must affirmatively demonstrate a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. (People v. Maury (2003) 30 Cal.4th 342, 389.) Attorneys are not expected to engage in tactics or to file motions that are futile. (Id. at p. 390; see People v. Mendoza (2000) 24 Cal.4th 130, 166.)
We initially note defense counsel effectively objected to the prosecutor’s Lego plane analogy. This led to the trial court’s admonition to the jury that the prosecutor’s comments were argument. Defense counsel very carefully reviewed the reasonable doubt instruction with the jury during his own closing argument and effectively countered the prosecutor’s Lego plane analogy. Defendant has failed to demonstrate either prong necessary to establish ineffective assistance of counsel: he has not shown counsel’s performance was deficient and fell below professional norms, and he has not demonstrated prejudice. As discussed above, the prosecutor’s case was particularly strong given that most of the evidence against defendant was consistent and largely unrefuted.
III. Alleged Abuse of Sentencing Discretion
Defendant argues the trial court abused its sentencing discretion in failing to strike his prior felony convictions subject to the three strikes law. The trial court sentenced defendant to a term of 25 years to life and doubled the sentence to 50 years to life pursuant to the three strikes law. The trial court added consecutive terms of 25 years to life for the gun use enhancement, one year for a prior prison term enhancement, and 16 months for defendant being a felon in possession of a firearm. Defendant further argues his sentence constituted cruel and unusual punishment under the Constitutions of the United States and California. We find no sentencing error.
A. Romero Discretion
Trial courts have limited discretion under section 1385 to dismiss prior convictions in three strikes cases. (Romero, supra, 13 Cal.4th at p. 530; see People v. Williams (1998) 17 Cal.4th 148, 162.) We are guided by two fundamental precepts in reviewing for abuse of discretion. The burden is on the party attacking the sentence to clearly show the sentencing decision was irrational or arbitrary. In the absence of such a showing, the trial court is presumed to act to achieve legitimate sentencing objectives, and its discretionary determination to impose a sentence will not be set aside on review. (People v. Carmony (2004) 33 Cal.4th 367, 376–377.) “[W]hen a defendant’s criminal conduct has been proven to be immune from ordinary modes of punishment, one of the duties of the judiciary is to protect the public by utilizing recidivist sentencing statutes to incarcerate such persons.” (People v. Castello (1998) 65 Cal.App.4th 1242, 1250–1251.) Also, a trial court’s decision will not be reversed merely because reasonable people might disagree. Appellate tribunals are neither authorized nor warranted in substituting their judgment for the judgment of the trial judge. These precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it. (People v. Carmony, supra, at p. 377.)
In deciding whether to dismiss or vacate a prior strike allegation or finding, or in reviewing such a ruling, “the court in question must consider 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.” (People v. Williams, supra, 17 Cal.4th at p. 161.) By establishing a sentencing norm, circumscribing the trial court’s power to depart from that norm, and requiring the court explicitly to justify its reasons for doing so, the three strikes law creates a strong presumption that any sentence conforming to these sentencing norms is rational and proper. In light of this presumption, a trial court will only abuse its discretion in failing to strike a prior felony conviction allegation in limited circumstances. (People v. Carmony, supra, 33 Cal.4th at p. 378.) These include situations in which the trial court was not aware of its discretion to dismiss or considered impermissible factors in declining to dismiss; or where the sentencing norms produce, as a matter of law, an arbitrary, capricious, or absurd result under the specific facts of a particular case. (Ibid.)
The standard for finding a trial court abused its sentencing discretion in failing to exercise its discretion to strike prior convictions pursuant to section 1385 and Romero is nearly an impossible one to surmount. The California Supreme Court has spoken in Carmony, and we are bound to follow its dictates. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Defendant’s current offense is first degree murder of an unarmed man with little or no provocation by the victim and no substantial basis for heat of passion. Defendant’s criminal history was also one of growing seriousness. As a juvenile, defendant had adjudications in 1996 for kidnapping (Pen. Code, § 207, subd. (a)) and burglary (id., § 459). Defendant had misdemeanor convictions in 2004 for driving while intoxicated (Veh. Code, § 23152, subd. (a)) and being in possession of controlled substances (Health & Saf. Code, § 11377). Defendant was convicted of felony domestic violence (Pen. Code, § 273.5) in 2004, for which he received a jail sentence. In 2007, defendant was sentenced to prison for six years for felony corporal injury to a child leading to a traumatic injury (id., § 273d). This offense included a special circumstance allegation found true that defendant caused great bodily injury to a child five years old or younger (id., § 12022.7, subd. (d)). The probation officer noted defendant did not appear to be remorseful for his conduct.
Given defendant’s pattern of relatively recent serious criminal activity and his willful violation of a lawful restraining order, we cannot say defendant fell outside the spirit of the three strikes law or that the trial court abused its sentencing discretion in denying defendant’s request to have a prior serious and violent felony stricken pursuant to Romero.
B. Cruel and Unusual Punishment
1. Introduction
Defendant contends his indeterminate sentence constitutes cruel and unusual punishment under the California and United States Constitutions for what defendant characterizes as a sentence disproportionate to his crime. Although defendant recognizes state law does not currently support his position, he nevertheless argues this court should find his sentence cruel and unusual.
Plaintiff argues this issue has been forfeited because trial counsel failed to raise cruel and unusual punishment as an issue at the sentencing hearing. Although failure to raise this issue constitutes forfeiture (see People v. Burgener (2003) 29 Cal.4th 833, 886; People v. Russell (2010) 187 Cal.App.4th 981, 993; People v. Norman (2003) 109 Cal.App.4th 221, 229–230), we reach and reject the merits of defendant’s constitutional challenge to his sentence in the interest of judicial economy and to prevent the inevitable claim of ineffectiveness of trial counsel. (People v. Russell, supra, at p. 993; People v. Norman, supra, at p. 230).
2. Lynch Factors
Defendant relies on our Supreme Court’s seminal case, In re Lynch (1972) 8 Cal.3d 410, 425–427. Under article I, section 17 of the California Constitution courts to consider three factors when analyzing whether a sentence is cruel or unusual: (1) the degree of danger the offender and the offense pose to society, (2) how the punishment compares with punishments for more serious crimes, and (3) how the punishment compares for the same offense in other jurisdictions. (People v. Dillon (1983) 34 Cal.3d 441, 479–482; In re Lynch, supra, at pp. 425–427; People v. Andrade (2015) 238 Cal.App.4th 1274, 1310.) The Eighth Amendment to the federal Constitution also contains a narrow proportionality principle reserved for extreme sentences that are grossly disproportionate to the offenses committed by a defendant. (Ewing v. California (2003) 538 U.S. 11, 20.)
3. Danger Offender Poses to Society
The first factor applied to the Lynch analysis of whether a sentence is cruel or unusual is the degree of danger the offender and the offense, or offenses, pose to society. Defendant’s vicious attack on Sandoval occurred with little or no provocation from Sandoval, and defendant’s assertion of heat of passion was particularly weak. Defendant had hours to premeditate and prepare his attack. When he reached Flores’s home, he relentlessly pursued a fleeing Sandoval—who had done nothing to threaten defendant after defendant’s arrival at Flores’s home—shooting at Sandoval multiple times at close range until he inflicted lethal wounds.
Defendant’s prior felony convictions as an adult involved domestic violence and the abuse of a child under five years of age who suffered great bodily injury at defendant’s hands. Defendant has demonstrated during his adult life a predilection to harm, and now to kill, victims who are particularly vulnerable.
The one mitigating factor pointed to by defendant were the five letters of support from family members written for the sentencing hearing. Three of the letters made excuses for defendant’s conduct, including that his grandmother treated him indifferently, his family provided no support when he got into trouble as a juvenile, and he had difficulty finding work as a parolee. All of the letters stated defendant loved his children. These letters, however, do not paint a portrait of someone who has shown remorse for his criminal conduct or who has placed serious effort in trying to rehabilitate himself, but of someone who continues to pose a serious danger to society.
The court in Andrade, for example, did not find a sentence of 195 years disproportionate, shocking, or inhumane for a violent sex offender who lacked a criminal history but who, nevertheless, committed his crimes on young, vulnerable women, threatened his victims, and claimed an affiliation with law enforcement to avoid detection. (People v. Andrade, supra, 238 Cal.App.4th at p. 1310.) It was defendant’s “conduct, not his sentence, that was cruel and unusual.” (People v. Wallace (1993) 14 Cal.App.4th 651, 666.)
4. Proportionality of Sentence to Other Crimes
Comparing defendant’s sentence to other offenses with indeterminate life sentences, we observe that lengthy noncapital sentences have been upheld in a variety of other sentencing scenarios. A defendant—convicted of being a felon in possession of a handgun as a third strike and sentenced to a term of 25 years to life—was not sentenced to a term in violation of the state or federal Constitution. (People v. Cooper (1996) 43 Cal.App.4th 815, 819–831.) The one strike law for sex offenses under Penal Code section 667.61 mandating an automatic minimum sentence of 25 years to life has been upheld against constitutional challenges. (People v. Crooks (1997) 55 Cal.App.4th 797, 803–812; People v. Retanan (2007) 154 Cal.App.4th 1219, 1230–1232 [upholding sentence of 135 years pursuant to one strike law].) A sentence of over 283 years for multiple sex offenses not charged under the one strike law has overcome a challenge based on cruel or unusual punishment. (People v. Wallace, supra, 14 Cal.App.4th at pp. 666–667.)
In People v. Szadziewicz (2008) 161 Cal.App.4th 823, another defendant without a criminal record committed aggravated mayhem (by slashing the victim’s face to the point of being unrecognizable), attempted murder, and first degree burglary. He received a sentence of two concurrent life terms with the possibility of parole plus a determinate sentence of four years. (Id. at pp. 827–831.) The Szadziewicz court did not find the defendant’s sentence disproportionate or cruel and unusual pursuant to the Eighth Amendment. (Szadziewicz, supra, at pp. 844–846.)
There are federal authorities finding disproportionality in three strikes sentences imposed by California courts. We note federal decisions are not binding on this court. (People v. Crittenden (1994) 9 Cal.4th 83, 120, fn. 3.) Even if we found these authorities persuasive, they are for offenses less serious and factually inapposite to the instant action. (Gonzalez v. Duncan (9th Cir. 2008) 551 F.3d 875, 878–889 [28 years to life sentence disproportionate for technical violation of sex registration law]; Reyes v. Brown (9th Cir. 2005) 399 F.3d 964, 966–969 [26 years to life sentence for perjury on driver’s license application overturned]; Ramirez v. Castro (9th Cir. 2004) 365 F.3d 755, 758–775 [25 years to life sentence grossly disproportionate for theft of $200 video recorder]; Banyard v. Duncan (C.D.Cal. 2004) 342 F.Supp.2d 865, 873–887 [25 years to life sentence for possession of rock cocaine for personal use overturned].)
The Eighth Amendment to the United States Constitution forbids extreme sentences grossly disproportionate to the crime committed. (U.S. Const., 8th Amend.) However, the federal and state courts, including recent decisions by the United States Supreme Court, have consistently rejected claims that life terms imposed on recidivists under these circumstances violate the constitutional ban on cruel and unusual punishment contained in the Eighth and Fourteenth Amendments. (Ewing v. California, supra, 538 U.S. at p. 29 [“In weighing the gravity of (the defendant)’s offense, we must place on the scales not only his current felony, but also his long history of felony recidivism. Any other approach would fail to accord proper deference to the policy judgments … in the legislature’s choice of sanctions”]; see Lockyer v. Andrade (2003) 538 U.S. 63; Harmelin v. Michigan (1991) 501 U.S. 957, 965; Rummel v. Estelle (1980) 445 U.S. 263, 284; People v. Cooper, supra, 43 Cal.App.4th at p. 820; People v. Kinsey (1995) 40 Cal.App.4th 1621, 1630–1631; People v. Cartwright (1995) 39 Cal.App.4th 1123, 1134–1137.)
Defendant’s history of recidivism dates back to when he was a juvenile. His juvenile and adult offenses were very serious, not minor. The current offense was extremely serious and unnecessarily deadly. We therefore reject defendant’s argument his sentence was disproportionate compared to other sentences and note the unarmed victim had no ability to defend himself from defendant’s hail of bullets during the ruthless onslaught. We conclude the first factor in determining whether an offense is cruel and unusual—the degree to which the offender poses a risk to society—clearly weighs against defendant. The second factor—how other offenses are punished in California—also does not demonstrate defendant’s sentence was cruel or unusual. The trial court did not abuse its discretion in imposing defendant’s lengthy indeterminate sentence.
IV. Clerical Error
The People assert there was clerical error in the abstract of judgment because defendant’s consecutive sentence of one year for the prior prison term enhancement does not appear in either the indeterminate nor the determinate abstract of judgment. Because the trial court sentenced defendant to a consecutive term of one year for the prison prior enhancement as part of defendant’s sentence for committing first degree murder, we agree the abstract of judgment for defendant’s indeterminate sentence must be amended to include this sentence. Clerical error can be corrected at any time, including on appeal. (People v. Mitchell (2001) 26 Cal.4th 181, 185; In re Candelario (1970) 3 Cal.3d 702, 705.)
V. Senate Bill No. 620
The People agree with defendant that the statutory amendment enacted by Senate Bill No. 620 (2017–2018 Reg. Sess.) is retroactive to all cases still pending on appeal. The People contend, however, that no purpose would be served by remanding the case for the trial court to exercise its discretion to reduce defendant’s sentence by striking the gun use enhancements. We note any case involving ambiguity in the trial court’s pronouncement of sentence would normally lead to remand for the trial court to exercise sentencing discretion it did not have at the time a defendant’s sentence was imposed. There are cases, however, where the trial court’s intent to impose the maximum sentence is so clear and unambiguous that no purpose would be served in remanding the case. (See People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896.) This is such a case.
After denying defendant’s request to strike his prior serious felony convictions pursuant to Romero, the trial court stated it was giving defendant the maximum sentence of 25 years to life for murder “multiplied by two for the strike prior.” The court added an additional sentence of 25 years to life for the gun use enhancement (Pen. Code, § 12022.53, sub. (d)), plus one year for a prior prison term enhancement, plus a consecutive term for defendant being a felon in possession of a firearm (§ 29800, subd. (a)(1)) of one year four months, for a total prison term of 77 years 4 months.
The court observed that if defendant, a felon, had not had a firearm available, the crime would not have occurred. Because of this, the court thought it was “appropriate to sentence him consecutively for a total sentence, which is the maximum allowable under the law, of 77 years … and 4 months to life.” The court further commented: “This crime was a terrible crime. The victim was shot without provocation in his home in front of the defendant’s child as well as Priscilla Flores and her mother.” The court added defendant had a long criminal history, including the strike priors, “and this case calls for the strongest possible sentence.”
The trial court clearly considered other ways to reduce defendant’s sentence, including granting his Romero request and making his sentence on count 2 concurrent. The court rejected these forms of leniency. Furthermore, the court was specifically disturbed that defendant was a felon who committed a crime the court described as terrible, without provocation, and in front of his own son as well as the child’s mother and grandmother. The court specifically sought to impose “the strongest possible sentence.” Given these findings and observations, this record clearly demonstrates the trial court would not exercise its sentencing discretion in any different fashion, nor is there any possibility the court would strike the firearm enhancement.
DISPOSITION
The case is remanded for the trial court to correct clerical error in defendant’s indeterminate sentence abstract of judgment to reflect the trial court’s imposition of a consecutive term of one year for the prison prior enhancement. The amended abstract of judgment shall be forwarded to the appropriate authorities. The judgment is affirmed.



PEÑA, J.
WE CONCUR:



DETJEN, Acting P.J.



BLACK,* J.