APPEAL from a judgment of the Superior Court of Tulare County

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APPEAL from a judgment of the Superior Court of Tulare County Powered By Docstoc
					       Filed 6/9/98


                             FIFTH APPELLATE DISTRICT

       Plaintiff and Respondent,
                                                             (Super. Ct. No. 37062)

RUDY BENEVIDES,                                                    OPINION

       Defendant and Appellant.

       APPEAL from a judgment of the Superior Court of Tulare County. John P.
Moran, Judge.
       A. M. Weisman, under appointment by the Court of Appeal, for Defendant and
       Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant
Attorney General, Robert R. Anderson, Assistant Attorney General, Shirley A. Nelson
and Judy Kaida, Deputy Attorneys General, for Plaintiff and Respondent.
       In the published portion of this Three Strikes case we address whether an appellate
court has the authority to review a trial court’s decision to not exercise its Penal Code

*      Pursuant to California Rules of Court, rule 976.1, this opinion is certified for
publication with the exception of Parts I.-V. and VII. through IX.
section 13851 discretion to dismiss or strike a prior conviction on its own motion in the
interests of justice. As will be discussed, a defendant has no right to make a motion under
section 1385, and a trial court is under no obligation to rule on such a “motion” or state
reasons for its refusal to consider such a request or “motion.” In many cases, like this
one, the trial court refuses to exercise its discretion and provides no reasons for its
inaction. Under these circumstances, we conclude there is only a limited right to
appellate review for alleged abuse of discretion. If the record shows the court was aware
of its discretion, summary denial of the allegation is generally the appropriate disposition.
We hold this is an appropriate case for summary denial of defendant’s contention.
                                PROCEDURAL HISTORY
       By information, defendant was charged with second degree burglary (count 1;
§ 459), petty theft with a prior (count 2; § 666), and receiving stolen property (count 3;
§ 496). It was further alleged defendant had suffered two strike prior convictions
(§ 1170.12, subd. (c)(2)(A)), and that he had served a prior prison term within the
meaning of section 667.5, subdivision (b).
       Defendant pled not guilty and denied the allegations. In bifurcated trials a jury
found defendant guilty as charged, and subsequently the trial court found the prior
conviction/prison term allegations true.
       Defendant’s motion for a new trial was denied. He was sentenced to prison for a
term of 25 years to life on count 1, with the term imposed on count 2 ordered stayed.
Count 3 was dismissed, and the prior prison term enhancement was ordered stricken.
Defendant received 399 total days of credit for time served, including conduct credit.
       Timely notice of appeal was filed.

1      All future references are to the California Penal Code unless otherwise indicated.

                                    FACTUAL HISTORY
       At approximately 12:30 p.m. on January 1, 1996, a female customer who refused
to identify herself contacted a sales clerk at the J C Penney Store in Visalia and reported
observing a man and woman, both described as Hispanic, exiting the north doors of the
store with several sweaters still on hangers. The man and woman entered a blue Blazer
vehicle parked at the curb. The customer wrote down the license plate number of the
vehicle and gave it to the clerk.
       Charlotte Rogers, the assistant manager, reported the theft to mall security and to
the police. Rogers then determined that 20 sweaters with a sales price of $22.99 each
were missing from displays located near the north doors of the store.
       Detective Corey Sumpter of the Visalia Police Department was assigned to
investigate the theft, and he ascertained the vehicle in which the thieves had fled was
registered to Juan and Mary Varela. On January 3, 1996, Sumpter contacted Mary at her
residence.2 Christina Manriquez was present in the kitchen making breakfast. Mary told
Sumpter that defendant and Manriquez had borrowed her vehicle on January 1st and
returned with a large number of sweaters. Mary told Sumpter she had purchased a
sweater with a J C Penney tag from Manriquez for $6. She and Manriquez also gave
Sumpter consent to search the home for the sweaters. Sumpter found a woman’s sweater
in the bedroom occupied by Manriquez and defendant. The two sweaters were later
identified at trial as being the same type as those that were stolen. No other sweaters
were found. Manriquez was arrested and taken into custody.
       Later that day, Sumpter contacted Juan at his residence. Juan told Sumpter that
defendant and Manriquez had borrowed his vehicle and returned later in the afternoon
with about ten sweaters and two to three pairs of jeans. He did not know where they had

2      During this time, defendant lived in the Varela residence, occupying a bedroom
with his girlfriend, Christina Manriquez, who is Mary Varela’s niece.

come from. Juan also told Sumpter his wife had bought one of the sweaters.
       Later, defendant was arrested in a neighboring yard. When initially approached by
officers, he began to run, but was immediately subdued. After waiving his constitutional
rights, defendant denied having been involved in the theft, and stated he was not with
anyone on New Year’s Day. He denied borrowing the Varelas’s vehicle and denied going
anywhere in that vehicle with Manriquez. Sumpter advised defendant that Manriquez had
already been arrested for the theft, and asked whether he had been with her that day.
Defendant stated he probably was because he was always with her. Sumpter advised
defendant that Manriquez had confessed. In response, defendant maintained neither he
nor Manriquez were involved in stealing the sweaters.
       On January 31, 1996, Sumpter again contacted Juan and Mary at their residence
and spoke to them separately. Juan continued to maintain that defendant and Manriquez
had taken his vehicle and stated defendant had a large bag when he returned that
afternoon. Juan stated he tried on a pair of pants that were too big. Mary said she was
asleep on the living room couch when defendant and Manriquez left the residence. When
they returned later that afternoon, she noticed defendant was carrying a bag. Mary said
that later Manriquez asked her if she wanted to buy a sweater, which she did for $5,
knowing it was probably stolen.
       Later, Sumpter received information from Manriquez’s mother that Juan had been
involved in the theft and drove the vehicle. He then spoke to Juan and told him he had
information that Juan had been the driver, and that Juan had lied to him. Juan asked what
would happen if he told the truth. Sumpter said if he told the truth, he would not arrest or
charge him, and would consult the district attorney’s office about immunity in exchange
for his testimony. Juan agreed to tell the truth on the condition he not be charged. Juan
then admitted lying, and told Sumpter he had driven defendant and Manriquez to the J C
Penney Store in his vehicle to steal merchandise; Manriquez went in with defendant, who
was carrying a large white bag; they came out with sweaters in their arms and entered his

vehicle; and defendant gave him heroin in exchange for driving them.
       At trial, Juan testified under a grant of immunity that on January 1, defendant came
into the living room and said, “‘Let’s go. Let’s go to the store and go boosting.’” Juan
interpreted this to mean stealing. Juan drove defendant and Manriquez to the J C Penney
Store and parked near the doors. Defendant carried a white bag as he and Manriquez
entered the store. Approximately 10 minutes later, they came out. Defendant was still
carrying the bag and Manriquez held sweaters, some of which were on hangers. They
returned home and defendant gave Juan $10 worth of heroin.
       Juan admitted lying to Sumpter, and said he had suffered two prior convictions for
providing false information to police officers.
       Mary testified she had been sleeping on her couch the morning of January 1.
Later, she saw defendant and Manriquez enter the house. Defendant was carrying a white
bag, and Manriquez had some sweaters. Manriquez showed her the sweaters and offered
to sell one to her for $6. Mary admitted she knew the sweaters were stolen. In fact, a
short time after defendant and Manriquez had returned, Mary learned Juan had driven
their Blazer during the theft. That evening, Mary purchased a stolen sweater for $5.
Subsequently, she saw defendant leave the house with the white bag. Mary admitted
lying to Detective Sumpter so her husband would not get in trouble.


I.       The trial court properly denied defendant’s motion for mistrial and for a new
trial. *

       Defendant made two motions for mistrial and one motion for a new trial based on
two acts of alleged prosecutorial misconduct in placing inadmissible evidence before the
jury. The first allegation of misconduct relates to the prosecutor’s opening statement.
       At trial, the parties discussed the possible testimony of Christina Manriquez, who

*      See footnote *, ante.

had pled guilty to the charges but was awaiting sentencing. The prosecution intended to
call her as a witness, and defense counsel informed the court and prosecutor that she had
indicated she would assert her right against self-incrimination. The prosecutor said he
would seek to have her statements admitted if Manriquez became unavailable as a witness
by refusing to testify. Defense counsel objected, arguing the statements were
inadmissible hearsay. Subsequently, the prosecutor said he had spoken to Manriquez at
the court’s suggestion, and she indicated she would testify. Defense counsel then stated
that Manriquez immediately called her after speaking with the prosecutor and told her she
“was taking the Fifth.” The matter remained unresolved.
      Defendant claims defense counsel argued that Manriquez’s statements should not
be mentioned by the prosecutor in opening statements until they had testimony on the
issue. However, the record is unclear as the following exchange illustrates:

                    “MS. ELLIOTT: Okay. The District Attorney has just shown
             me -- I haven’t had a chance to really look at two of the things that
             he wants to use in opening. The first one is the names of all
             witnesses in terms of putting them together. I -- I don’t know how
             much objection, but there is still an issue in terms of Christina and
             whether she is going to be taking the Fifth or not.

                    “THE COURT: Have you talked to her?

                    “MR. WESTERLUND: Yes, Your Honor. I talked to her
             after we finished our earlier discussions and she said she is
             cooperating with our office and will testify.

                    “THE COURT: All right. What’s the --

                     “MS. ELLIOTT: She immediately called me after that and
             told me she was taking the Fifth. So I think she just doesn’t want to
             talk to the DA.

                   “MR. WESTERLUND: And this one was based upon Rudy’s
             statement on January 3rd.

                    “MS. ELLIOTT: And this, I object to it coming in in opening
             until we have some testimony to it. I mean --

             “THE COURT: I agree. He can use that in argument.

            “MS. ELLIOTT: Right. If the testimony comes out to
      support it he can use it in argument.

             “MR. WESTERLUND: Well, Your Honor, I intend to go
      over his statement in front of the jury, I just can’t use that?

             “THE COURT: That’s right. At this point.

             “MS. ELLIOTT: Right. You have got to --

             “THE COURT: Some things I allow to be used in opening
      argument like your list of witnesses there. But I don’t want that --
      the evidence up there during opening statement.

             “MR. WESTERLUND: Okay.”
Trial began and the prosecutor gave his opening statement, where he stated:

             “Initially -- now Christina will testify. Now what she testifies
      to we’ll see. But at this point in time she tells Corey Sumpter,
      Detective Sumpter that yes, I sold that sweater to Mary and in fact I
      did steal it from JC Penney’s.

             “As a matter of fact she tells in some detail how she and
      another person went into JC Penney’s, grabbed this stuff, ran out,
      and then came home. As a matter of fact they then sold those door to
      door I guess to people around the neighborhood in that area or
      maybe not even in that area. But, she fesses up to it immediately and
      confesses to it. But she refuses at any time to tell who in fact was
      with her. She doesn’t want to have anything to do with that.

             “ .................................................................................................

             “So, Christina is going to testify today.…

            “ … And I expect her to testify to what she has told Corey
      Sumpter, that in fact she was with somebody. That they did this in
      cahoots and that’s what happened.

             “ .................................................................................................

             “ … And that is then at the preliminary hearing some time ten
      days later after them being booked in, Detective Sumpter does a little
      more work. And in fact talks to Toni Manriquez.

                     “Toni Manriquez is Christina’s mother. Christina is 23. The
              defendant in this case is 33. Toni Manriquez talks with her daughter
              at some point in time. And her daughter indicates who she did the
              crime with. And that was in fact Rudy Benevides. I believe that
              testimony will come out.”
       At the conclusion of testimony on June 24, the court asked Manriquez, “Christina,
the District Attorney advises me that he has discussed with you your testimony in this
case and that you intend to testify, is that correct.?” Manriquez responded, “I intend to
get on the stand, yes.” The next day Manriquez was sworn outside the presence of the
jury and indicated she would not testify. Defense counsel then made a motion for
mistrial, which was denied:

                    “THE COURT: At the conclusion of the trial yesterday she
              advised me on the record that she intended to testify.

                     “MS. ELLIOTT: She advised that she intended to take the
              stand. I think there was a miscommunication. She thought she could
              not not take the stand. But once she took the stand that she would
              take the Fifth.

                     “THE COURT: There was no miscommunication as far as I
              was concerned. My understanding of what she said is that she was
              going to testify. So the prosecutor obviously was acting in good

                    “I am going to advise the jury that she was unavailable as a
              witness and that they should disregard any comments that were made
              by counsel as to what she was going to testify to.

                     “MS. ELLIOTT: All right.

                    “THE COURT: All right. And the motion for mistrial is
       At sentencing defendant made a motion for new trial, arguing that a mistrial should
have been granted based on the use of inadmissible hearsay in the prosecution’s opening
statement. On appeal, defendant contends the prosecutor’s statements violated
defendant’s rights to confrontation and cross-examination under Bruton v. United States
(1968) 391 U.S. 123. The People do not dispute that Bruton error occurred, but instead
argue that in light of the entire record, the prosecutor’s statements did not cause actual
       Bruton error is not prejudicial per se, but because it implicates a federal
constitutional right, the standard of review is whether the error was harmless beyond a
reasonable doubt under Chapman v. California (1967) 386 U.S. 18. (People v. Anderson
(1987) 43 Cal.3d 1104, 1128.) As explained in Anderson:

                     “Under that test, ‘we must determine on the basis of “our own
              reading of the record and on what seems to us to have been the
              probable impact ... on the minds of the average jury,” [citation],
              whether [Sheila's] admissions were sufficiently prejudicial to
              [defendant] as to require reversal.’ [Citations.]

                      “In performing this task we look for guidance to the following
              cases, in which the reversibility of Bruton-Aranda error has been
              considered: [Citations.]

                     “In each of the cases in which the error was held harmless,
              two elements were present: (1) the properly admitted evidence was
              overwhelming; and (2) the evidence provided by the incriminating
              extrajudicial statement was cumulative of other direct evidence
              presented either through eyewitness testimony [citation], or out of
              the defendant's own mouth [citations]. By contrast, in In re Sears,
              supra, 71 Cal.2d at pages 383-388, in which the error was not held
              harmless, neither element was present.

                      “From these cases, therefore, the following rule may be
              derived: if the properly admitted evidence is overwhelming and the
              incriminating extrajudicial statement is merely cumulative of other
              direct evidence, the error will be deemed harmless.” (People v.
              Anderson, supra, 43 Cal.3d at pp. 1128-1129.)
       Here as in Anderson, the properly admitted evidence was overwhelming. Juan’s
testimony was largely that of an eyewitness. It was internally consistent and was
corroborated by other evidence. One of the stolen sweaters was found in the bedroom
defendant shared with Manriquez. The manner in which the theft took place, as described
by Juan, matched the description given by the anonymous customer. Mary testified she
bought a sweater she knew was stolen from Manriquez, and defendant and Manriquez
returned with Juan on the afternoon of January 1. Defendant was carrying a white bag,
and Manriquez had some sweaters. Defendant attempted to flee when approached by
police officers. He also admitted he “probably” was with Manriquez (who admitted her
role in the theft) because he was always with her. Thus, we conclude the prosecutor’s
statements were harmless beyond a reasonable doubt.
       Further, even if we were to determine the evidence was not overwhelming, it
would not change our conclusion. Under the circumstances, the prosecutor’s statements
were rendered harmless by the jury instructions. Normally when Bruton error occurs, an
instruction is given which limits the consideration of evidence to the nontestifying
defendant who implicates the other defendant in an out-of-court statement. In contrast,
here the jury was instructed to disregard the entire out-of-court statement. It was
repeatedly told the attorneys’ statements were not evidence and should not be given any
weight. Unlike the typical Bruton situation, this jury was not placed in a position where it
had to perform “‘a mental gymnastic’” beyond its powers. (People v. Aranda (1965) 63
Cal.2d 518, 525.) In the absence of evidence to the contrary, we presume the jurors
complied with the court’s admonitions and instructions to disregard the statements.
(Bruton v. United States, supra, 391 U.S. at p. 135 [“It is not unreasonable to conclude in
many such cases the jury can and will follow the trial judge’s instructions to disregard
such information”]; People v. Sanchez (1995) 12 Cal.4th 1, 70 ["we presume the jury
treated the court’s instructions as statements of law”]; People v. Scott (1988) 200
Cal.App.3d 1090, 1095 [“Jurors are presumed … to have followed the court’s
       There is nothing in the record to suggest the jury did not follow the court’s
instructions. Consequently, we reject defendant’s prejudicial error contention.
II.    Defendant was not prejudiced by the admission of evidence of his parole status.*

*      See footnote *, ante.

       Dawn King testified for the prosecution that she was a close friend of Manriquez,
and had known defendant for a year and a half to two years. While both Manriquez and
defendant were in custody on the pending charges, defendant called and asked if she
could talk to Mary and Juan and find out if they were going to testify. Assuming they did,
defendant wanted her to find out what they were going to say. When King asked why
defendant wanted to know, he said, “because ‘I am really worried about Christina because
… Christina is the one that’s going to get hurt. And I don’t want to see her get hurt.’”
King denied defendant asked her to tell Mary and Juan not to testify, and said defendant
did not say anything about getting an offer from the district attorney’s office if he would
plead guilty. The following colloquy then ensued:

                    “Q Did you talk to him about whether he would take a year in

                     “A No, I didn’t talk about anything.

                     “Q For a parole violation?

                     “MS. ELLIOTT: Your Honor, I object.

                     “THE WITNESS: I didn’t talk about that.

                     “(Whereupon, a bench discussion was had, not reported.)

              “BY MR. WESTERLUND:

                     “Q So let me see if I got this straight. He didn’t say anything
              about taking a year in prison for a parole violation to you?

                     “A No, Tina and I would talk about this. I would say -- well
              Tina said if you get this you are going to get 25 years, you know, if
              you ended up taking this case for her. You know you are going to
              get 25 years. And he is like well I am not worried about that right
              now, I’m worried about what’s going to happen with her.”
       King acknowledged she spoke several times with Mike Montejano, a district
attorney’s office investigator. Montejano testified King told him that defendant asked her
to ask Mary and Juan not to testify because defendant would receive more time if he was

convicted of the charges. Defendant also told King he would not let Christina Manriquez
take all the rap. Instead, defendant was waiting for a good deal, and wanted to get a year.
The prosecutor then asked, “A year for what?” and Montejano answered, “For a parole
violation.” King also said defendant had told her “they ran off with the sweaters and sold
them to an aunt.”
       Defendant next contends the trial court prejudicially erred by admitting evidence
that he was on parole. The People counter that the evidence was properly admitted to
impeach Dawn King’s testimony, and alternatively that any error was harmless.
       Before trial, defense counsel made a motion that there be no mention defendant
was on parole. The court granted the motion in part. However, the court ruled that King
could mention defendant was on parole because it was part of a statement he purportedly
made to her, i.e., that he was waiting for a good offer. The court stated, “But that’s the
only reference to parole. No references by police officers or such.” The prosecutor
earlier had agreed that “I will inform my officers to such.”
       It is unclear on what grounds the trial court determined that defendant’s alleged
admission was relevant since it did not explain its reasoning. The trial court had already
granted a bifurcated trial motion on the issue of defendant’s prior convictions. Defense
counsel’s in limine motion was to exclude the fact defendant was on parole because this
fact was highly prejudicial and had no probative value. Defense counsel did not seek to
exclude the entire statement, only that portion referring to parole.
       On appeal, the People still fail to articulate what probative value defendant’s
parole status had to the issues in the case. Instead, the People argue it was properly
admissible to impeach King. In fact, the only relevance of the alleged statement is as
evidence of defendant’s consciousness of guilt, i.e., he acknowledged guilt by agreeing to
serve a year for the charged crime.
       It is beyond cavil that evidence of prior bad acts or bad character of a criminal
defendant is generally considered to be highly prejudicial and inadmissible for that


                     “There is little doubt exposing a jury to a defendant's prior
             criminality presents the possibility of prejudicing a defendant's case
             and rendering suspect the outcome of the trial. (See, e.g., People v.
             Price (1991) 1 Cal.4th 324, 431 [evidence defendant could not
             remember dates as he had been in prison so long should have been
             excluded as more prejudicial than probative]; People v. Bracamonte
             (1981) 119 Cal.App.3d 644, 650-651 [limiting instructions
             insufficient to overcome prejudicial effects of trying issue of guilt
             with truth of prior conviction allegations]; People v. Morgan (1978)
             87 Cal.App.3d 59, 76 [evidence of defendant's prior criminality
             ‘obviously of a prejudicial nature’];[3] People v. Cabrellis (1967) 251
             Cal.App.2d 681 [admission of evidence of other crimes offered
             solely to prove defendant's bad character reversible error especially
             when it forces defendant to give up constitutionally protected right
             not to have to testify in own defense].)” (People v. Harris (1994) 22
             Cal.App.4th 1575, 1580-1581 [discussing possible prejudice of
             witness’s inadvertent testimony regarding the defendant’s parole
             officer]; see also People v. Parsons (1984) 156 Cal.App.3d 1165,
             1170-1171 [defendant’s arrest for prior burglary inadmissible as
             prejudicial and improper character evidence]; People v. Williams
             (1981) 115 Cal.App.3d 446, 453 [reference to defendant’s “parole
             officer” improper but harmless in light of proper prior conviction
             evidence]; People v. Glass (1975) 44 Cal.App.3d 772, 781-782
             [reference to the existence of a search warrant for defendant’s person
             which by implication connected him with other criminal activity was
             “serious error, in light of the closeness of the case”]; People v.
             Duran (1969) 269 Cal.App.2d 112, 117-118 [witness’s allusion to
             defendant having been charged with a prior burglary was improper].)
      While defendant’s statement that he was waiting for a good offer was an admission
evidencing a consciousness of guilt, any reference to his parole status should have been
excluded due to the danger of undue prejudice. The People ignore the well-settled case
law and argue the evidence was properly admissible to impeach King’s testimony.

3      People v. Bracamonte (1981) 119 Cal.App.3d 644 was disapproved on other
grounds in People v. Calderon (1994) 9 Cal.4th 69, 80. People v. Morgan (1978) 87
Cal.App.3d 59 was disapproved on other grounds in People v. Kimble (1988) 44 Cal.3d
480, 498.

However, the same factor which makes the parole reference improper with regard to an
admission of consciousness of guilt also makes it improper as impeachment evidence --
its probative value is outweighed by its potential for undue prejudice. The People’s
citation to People v. Vidaurri (1980) 103 Cal.App.3d 450, does not help their position. In
Vidaurri, evidence that defendant knew of the existence of a warrant for his arrest was
highly relevant. Therefore, its admission outweighed the prejudicial effect. The evidence
established his motive in committing four assaults with deadly weapons to escape arrest,
which made up four of the six charges for which the defendant was on trial. Here, as
previously noted, the People have failed both at trial and on appeal to indicate any
relevance of defendant’s parole status to the issues at trial.
       During trial, the prosecutor elicited evidence of defendant’s parole status. After
the evidence came in through Investigator Montejano, defendant made a motion for
mistrial. The court denied the motion, finding the witness had brought up the matter, as
argued by the prosecutor. After the jury returned its verdict, defendant renewed his
mistrial motion. The prosecutor conceded that he, and not Dawn King, initially
mentioned defendant’s parole status. He further conceded this was a violation of the
court’s earlier order. After determining the prosecutor had inadvertently violated the
court’s order,4 the court denied the motion. In doing so it found the reference to
defendant’s parole status could not have had any significant effect on the trial’s outcome
because “the evidence in this case was overwhelming.”

                      “ ‘A mistrial should be granted if the court is apprised of
              prejudice that it judges incurable by admonition or instruction.
              [Citation.] Whether a particular incident is incurably prejudicial is
              by its nature a speculative matter, and the trial court is vested with

4       It is not entirely clear whether the prosecutor actually violated the order. As
previously noted, the court ruled defendant’s statement to Dawn King would be admitted,
but also ruled the law enforcement officers could not mention it. The statement that came
into evidence was the statement defendant allegedly made to Dawn King, but it was
testified to by Montejano, a member of law enforcement.

              considerable discretion in ruling on mistrial motions.’ [Citation.]
              Although most cases involve prosecutorial or juror misconduct as the
              basis for the motion, a witness's volunteered statement can also
              provide the basis for a finding of incurable prejudice. [Citation.]”
              (People v. Wharton (1991) 53 Cal.3d 522, 565.)
       Consequently, the question on appeal is whether in light of the entire record, the
erroneous admission of the evidence was prejudicial. “Generally, improper evidence of a
past crime does not cause reversal where there is heavy evidence of guilt.” (People v.
Cabrellis (1967) 251 Cal.App.2d 681, 688.) Where the record “points convincingly to
guilt,” the error “is consistently regarded as nonprejudicial.” (People v. Stinson (1963)
214 Cal.App.2d 476, 482.) “Improper evidence of prior offenses results in reversal only
where the appellate court’s review of the trial record reveals a closely balanced state of
the evidence.” (Ibid.)
       As we noted earlier, the evidence of guilt, if not overwhelming, was very strong.
Juan’s testimony was largely that of an eyewitness. It was internally consistent and was
corroborated by other evidence. One of the stolen sweaters was found in the bedroom
defendant shared with Manriquez. The manner in which the theft took place, as described
by Juan, was consistent with the description given by the anonymous customer. Mary
testified she bought a sweater she knew was stolen from Manriquez, and that defendant
and Manriquez walked in together when they returned with Juan on the afternoon of
January 1. Defendant was carrying a white bag, and Manriquez had some sweaters.
Defendant attempted to flee when approached by police officers. He also admitted he
“probably” was with Manriquez, who admitted her role in the theft, on the day of the theft
because he was always with her.
       Contrary to defendant’s contention, the evidence was not closely balanced.
Indeed, with the exception of his out-of-court statements to witnesses denying his
involvement in the theft, defendant presented no evidence which pointed to his
innocence. The jury deliberated less than an hour before returning the three guilty
verdicts. Therefore, it is not reasonably probable defendant would have received a more

favorable result absent the improper evidence. (People v. Harris, supra, 22 Cal.App.4th
at p. 1581; People v. Dominguez (1981) 121 Cal.App.3d 481, 501; People v. Williams,
supra, 115 Cal.App.3d at p. 453.) It follows that the trial court did not abuse its
discretion by denying the motions for mistrial.
III.   Giving CALJIC No. 2.11.5 did not prejudice defendant.*
       Defendant contends the trial court’s instruction to the jury pursuant to CALJIC No.
2.11.5 prejudiced his case because it improperly urged the jurors to disregard the
accomplice corroboration instructions as to Juan Varela, and to disregard Mary Varela’s
involvement and motive to testify. Further, according to defendant, the instruction
suggested the jurors ignore factors undermining the credibility of witnesses involved in
the alleged incident who were not being prosecuted for the same offense. Defendant’s
contention is meritless.
       Pursuant to CALJIC No. 2.11.5, the jury was instructed as follows:

                      “There has been evidence in this case indicating that a person
              other than the defendant was involved in the crime for which he is on
              trial. There are many reasons why such person is not here on trial.
              Do not discuss or give any consideration as to why the other person
              is not being prosecuted at this trial or whether she has been or will be
              prosecuted. Your sole duty is to decide whether the People have
              proved the guilt of the defendant.” (Emphasis added.)
       Defendant is correct that generally CALJIC No. 2.11.5 should not be given in
cases when the “other person” is a witness for either the prosecution or the defense. (See
People v. Malone (1988) 47 Cal.3d 1, 50-51; People v. Williams (1988) 45 Cal.3d 1268,
1313.) However, here the “other person” reference was obviously to Christina Manriquez
who never testified. While the instruction would have been more clear if it had
specifically referenced Manriquez by name (People v. Cox (1991) 53 Cal.3d 618, 667, fn.
13) instead of by the word “she,” there was no reasonable possibility the jury would have

*      See footnote *, ante.

mistakenly applied it to Juan and Mary Varela.
       The jury was made fully aware that Juan was an alleged accomplice who had been
given immunity in exchange for his testimony against defendant. The jury also knew
Mary did not want Juan prosecuted and that Mary had not been prosecuted for the theft.
The court properly instructed the jury that the testimony of an accomplice must be
corroborated; on the definition of an accomplice; on the sufficiency of the evidence to
corroborate an accomplice; that one accomplice may not corroborate another; that the
testimony of an accomplice should be viewed with distrust; that the jury should not single
out any instruction; and that the jury was to consider the full range of factors affecting
credibility, including bias, interest, and the motives of any witness. Finally, defense
counsel emphasized in closing argument why the credibility of Juan and Mary was
suspect in light of the relevant law.
       The reasoning in People v. Cox, supra, 53 Cal.3d at pages 667-668 is applicable
here and resolves the issue against defendant:

                      “‘In determining whether an instruction interferes with the
              jury's consideration of evidence presented at trial, we must determine
              “what a reasonable juror could have understood the charge as
              meaning.” [Citation.] While the initial focus is on the specific
              instruction challenged [citation], we must also review the
              instructions as a whole to see if the entire charge delivered a correct
              interpretation of law. [Citation.]’ [Citation.] Here, the court
              specified that the instructions on accomplice liability and the
              restrictions on assessing the weight and credibility of accomplice
              testimony applied to Moore and Brown; whereas, CALJIC No.
              2.11.5 ‘was patently directed at’ Burns and Williams, defendant's
              absent confederates. [Citation.]

                     “The court also charged the jury not to single out any
              instruction (CALJIC No. 1.01) and to consider the full range of
              factors affecting credibility (CALJIC No. 2.20). In this context, we
              conclude ‘a reasonable juror would continue to act in accordance
              with the court's charge on accomplice testimony, but would simply
              refrain from discussing or giving any consideration to the separate
              issue why [Moore and Brown were] not being prosecuted in the

              present action or whether [they] had been or would be prosecuted
              ....’ [Citations.]

                      “Furthermore, we find no inherent contradiction in requiring
              the jurors to determine the accomplice liability of these witnesses in
              assessing the weight of their testimony and also directing them to
              ignore these factors in resolving defendant's guilt. One purpose of
              the instruction is to focus the jury's attention on an individualized
              evaluation of the evidence against the person on trial without
              extraneous concern for the fate of other participants irrespective of
              their culpability. [Citations.]

                    “Given the totality of the foregoing circumstances, we
              conclude the omission of the challenged instruction would not in
              reasonable probability have resulted in a more favorable
              determination. [Citation.]” (Fns. omitted.)

IV. CALJIC No. 2.90 (1994 Revision) on reasonable doubt is constitutionally
       Defendant contends the 1994 revision to CALJIC No. 2.90 contains an incorrect
definition of reasonable doubt. He claims the instruction is faulty because it defines
reasonable doubt in terms of an “abiding conviction” rather than a “moral certainty.”
       We rejected the same argument recently in People v. Light (1996) 44 Cal.App.4th
879. (Accord People v. Torres (1996) 43 Cal.App.4th 1073.) We noted in Light that the
United States Supreme Court in Victor v. Nebraska (1994) 511 U.S. 1 [114 S.Ct. 1239]
held use of the term “abiding conviction” was the proper standard.

                     “Although in this respect moral certainty is ambiguous in the
              abstract, the rest of the instruction … lends content to the phrase.
              The jurors were told that they must have ‘an abiding conviction, to a
              moral certainty, of the truth of the charge.’ … An instruction cast in
              terms of an abiding conviction as to guilt, without reference to moral
              certainty, correctly states the government’s burden of proof.
              [Citations.]” (Id. at p. __ [114 S.Ct. at p. 1247], italics added.)
Therefore, we conclude the instruction on reasonable doubt given by the trial court was

*      See footnote *, ante.

V.     Cumulative error analysis*
       Defendant contends that if the asserted errors do not individually require reversal,
they in combination denied him his fundamental right to a fair trial. Having reviewed the
alleged errors, we conclude they were generally trivial, and the only significant error was
the admission of defendant’s parole status. Even when viewed cumulatively, the errors
fall well below the showing required to warrant a reversal based on cumulative error.
Contrary to defendant’s view, evidence supporting the guilt judgment was not close but
strong and convincing. Consequently, there is no basis for reversal of the judgment of
convictions. (See People v. Garceau (1993) 6 Cal.4th 140, 198; People v. Johnson
(1992) 3 Cal.4th 1183, 1238; People v. Pride (1992) 3 Cal.4th 195, 251-252.)

VI. There was no error in refusing to strike defendant’s prior serious felony
       Defendant argues the trial court abused its discretion by refusing to strike one of
his prior serious felony convictions in the furtherance of justice pursuant to section 1385.5
The People contend the court’s refusal to exercise its discretion to strike a prior is not
appealable. Alternatively, the People argue the court did not abuse its discretion. For the
reasons that follow, we hold there is a limited review of the matter on appeal.
       At trial, defense counsel urged the trial court in off-the-record discussions to strike
defendant’s prior convictions under People v. Superior Court (Romero) (1996) 13 Cal.4th
497. At sentencing, defense counsel requested the court consider striking one of the prior
strikes. Both times the court refused to exercise its discretion to strike any of defendant’s
prior convictions, but gave no reasons for the refusal. However, according to the

*      See footnote *, ante.
5      Section 1385, subdivision (a) provides, in pertinent part:
       “(a) The judge ... may, either of his or her own motion or upon the application of
the prosecuting attorney, and in furtherance of justice, order an action to be dismissed.
The reasons for the dismissal must be set forth in an order entered upon the minutes.”

prosecutor’s statements at sentencing, the court had indicated off the record that it felt
defendant was “the model citizen for the three strikes law .…”
       Neither defendant nor the People provide authority which squarely resolves the
question of whether an appellate court has authority to review a trial court’s decision (or
non-decision) to not exercise its section 1385 discretion to strike or dismiss a prior
conviction on its own motion. Our independent research also fails to reveal any
dispositive authority on this issue.
       Defendant cites People v. Warren (1986) 179 Cal.App.3d 676, to support his
contention that we are obligated to review the court’s refusal to exercise its Romero
discretion to strike a prior conviction. However, Warren does not support his position.
There, based on a favorable diagnostic report by the Department of Corrections, the trial
judge said that if he were a state governor and not just a judge, he would exercise the
executive power of commutation and reduce the defendant’s sentence of life without
possibility of parole to life with the possibility of parole. (Id. at pp. 680-681, 683-684).
The court refused to exercise its section 1385 discretion to strike the special
circumstances finding. It did so on the ground that such an act of judicial discretion
would be a violation of the doctrine of separation of powers prohibited by the
Constitution. (Id. at p. 684.) We held the exercise of the court’s section 1385 discretion
would not be a violation of the separation of powers doctrine. (Id. at pp. 692-693.)
Consequently, we remanded so the court could reconsider whether it should exercise its
discretion in light of our opinion. (Id. at p. 695.) Thus, we did not review the record to
determine if the court abused its discretion by refusing to exercise it, and we did not find
the trial court committed an abuse of discretion in refusing to strike the special
circumstances. We simply determined the trial court misunderstood the scope of its
power under the Constitution.
       When a court exercises its extraordinary power of dismissal, it must explain its
action on the record in order to facilitate review and public awareness. (§ 1385, subd. (a);

People v. Bracey (1994) 21 Cal.App.4th 1532, 1541; People v. Harris, supra, 227
Cal.App.3d at pp. 1228-1229.) There is no similar requirement that a court explain its
decision not to exercise its power to dismiss or strike. (People v. McCowan (1986) 182
Cal.App.3d 1, 17.) Further, the extraordinary power to dismiss under section 1385 may
be exercised only upon the court’s own motion or the motion of the People. Section 1385
does not confer a motion or right to relief upon the defendant. (People v. Barraza (1994)
30 Cal.App.4th 114, 121, fn. 8; People v. Superior Court (Flores) (1989) 214 Cal.App.3d
127, 136; People v. Ritchie (1971) 17 Cal.App.3d 1098, 1104.) A defendant may,
however, informally ask or suggest that the trial court exercise its discretion under section
1385. (Ibid.) It follows that since the defendant has no right to make a motion under
section 1385, a trial court is under no obligation to rule on such a “motion.” (People v.
Sassounian (1986) 182 Cal.App.3d 361, 413.) It further follows that if the court does not
exercise its power to dismiss or strike, there is no review available to defendant on
appeal. (People v. Benson (1976) 64 Cal.App.3d Supp. 10, 13 [“Section 1385 … merely
denies appellate relief to a defendant whose motion to dismiss has been denied by the trial
court because of a lack of standing”].)
       Appellate review is available when a trial court’s refusal or failure to exercise its
section 1385 discretion to dismiss or strike is based on a mistaken belief regarding its
authority to do so. In those situations, relief on appeal is to remand or permit the
defendant to petition by writ of habeas corpus. The appellate courts do not have the
power to substitute their discretion for that of the trial court or to direct the trial court to
exercise its discretion to dismiss. (People v. Superior Court (Flores), supra, 214
Cal.App.3d at p. 136 “The Legislature limited the right to initiate the use of section 1385
to the People and to the court”]; see also People v. Fuhrman (1998) 16 Cal.4th 930, 946-
947, fn. omitted [“We express no opinion on the manner in which the trial court should
exercise its discretion in the event defendant files a petition for writ of habeas corpus”].)
We simply may review for an abuse of discretion where the court exercises its section

1385 authority to dismiss. (People v. Williams (1998) 17 Cal.4th 148, 158-159.) There is
no authority granting the appellate courts the ability to review a court’s informed decision
to not exercise its section 1385 power in the furtherance of justice.6
       Our conclusion is supported by Romero. At footnote 13, the court held that a
petition for writ of habeas corpus filed by a defendant in the sentencing court “may be
summarily denied if the record shows that the sentencing court was aware that it
possessed the discretion to strike prior felony conviction allegations without the
concurrence of the prosecuting attorney and did not strike the allegations .…” (People v.
Superior Court (Romero), supra, 13 Cal.4th at pp. 530, fn. 13; accord People v. Fuhrman,
supra, 16 Cal.4th at p. 942.)
       Here, we have a record which shows the trial court was aware of its discretion
pursuant to section 1385, and refused to exercise it to strike any of defendant’s priors.
Under these circumstances, we summarily reject defendant’s contention that the trial
court abused its discretion by not striking any of his priors.
VII.   Remand for resentencing due to misdemeanor status is not required.*
       Defendant contends that because the trial court never stated it knew defendant was
convicted of “wobblers” under section 17, a remand is necessary so the trial court may
determine whether defendant’s offenses should be treated as misdemeanors.
       At sentencing, the prosecutor correctly pointed out the probation report
erroneously indicated that count 2 (petty theft with a prior) should be reflected as a felony
under section 666, instead of a misdemeanor under section 484. Section 666 provides:

6       Of course, where the trial court expresses clearly improper reasons for refusing to
exercise its discretion, the appellate court must correct the error. For example, if the trial
court indicates it would normally exercise its power to dismiss under the circumstances of
the case but refuses to do so on the basis of the defendant’s race, gender, religious beliefs,
etc., such a reason would be arbitrary and capricious as a matter of law, and would thus
merit appellate intervention.
*      See footnote *, ante.

                      “Every person who, having been convicted of ... robbery ...
              and having served a term therefor in any penal institution or having
              been imprisoned therein as a condition of probation for that offense,
              is subsequently convicted of petit theft, then the person convicted of
              that subsequent offense is punishable by imprisonment in the county
              jail not exceeding one year, or in the state prison.”
       After the jury found defendant guilty of petty theft under section 484, the court
found true the allegation that defendant had suffered a prior conviction for robbery and
served a prison term, as alleged in the information. Thus, defendant’s count 2 conviction
qualified for felony status because it was punishable by imprisonment in state prison
under section 17 which defines a felony as “a crime which is punishable with death or by
imprisonment in state prison.” (§ 17, subd. (a); People v. Banks (1959) 53 Cal.2d 370,
381-382; People v. Samarjian (1966) 240 Cal.App.2d 13, 23 [“The general rule … is that
where the offense is alternatively a felony or a misdemeanor, it is regarded as a felony for
every purpose until judgment”].) Consequently, the prosecutor properly brought the error
in the probation report to the court’s attention. Defendant does not contend otherwise.
       Defendant does argue that since no one mentioned the convictions in counts 1 and
2 were wobblers under section 17, “the court and parties thought the offenses were
straight felonies rather than wobblers.” In turn, defendant concludes the trial court
abused its discretion by ignoring the alternative sentencing option. Stated simply, the
record does not support defendant’s premise or conclusion. As we stated in People v.
Alvarez (1996) 49 Cal.App.4th 679, 694:

                      “It has long been settled that the burden is on an appellant to
              affirmatively show in the record that error was committed by the trial
              court: ‘[I]t is settled that: “A judgment or order of the lower court is
              presumed correct. All intendments and presumptions are indulged to
              support it on matters as to which the record is silent, and error must
              be affirmatively shown. This is not only a general principle of
              appellate practice but an ingredient of the constitutional doctrine of
              reversible error.” [Citations.]’”
       The record provides no basis for us to speculate that the trial court was unaware
defendant’s offenses were wobblers or that it erroneously believed defendant’s offenses
were “straight felonies.” Therefore, we reject defendant’s contention.
       In his reply brief, defendant relies on the recent case of In re Manzy W. (1997) 14
Cal.4th 1199 to support his position. However, that case is distinguishable because the
applicable statute was Welfare and Institutions Code section 702--not section 17.
Welfare and Institutions Code section 702 specifically directs the juvenile court that “If
the minor is found to have committed an offense which would in the case of an adult be
punishable alternatively as a felony or misdemeanor, the court shall declare the offense to
be a misdemeanor or a felony.” There is no similar requirement in section 17 or any other
applicable statute. Under section 17, “‘it is the punishment specified by the sentence
which determines the character of the crime “for all purposes .…”’” People v.
Samarjian, supra, 240 Cal.App.2d at p. 23.) By sentencing a defendant to state prison, a
sentencing court, in essence, declares the wobbler offense to be a felony for all purposes.
(Ibid.; People v. Banks, supra, 53 Cal.2d at p. 381.) Hence, no remand is required.
VIII. Defendant’s sentence of 25 years to life is not cruel or unusual.*
       Defendant does not challenge the constitutionality of the Three Strikes law on its
face as providing for cruel or unusual punishment, although such a challenge has been
rejected in People v. Cartwright (1995) 39 Cal.App.4th 1123, 1134. Instead, defendant
contends the sentence of 25 years to life is cruel or unusual punishment as applied to him
because it is grossly disproportionate to the offense he committed. We disagree.
       A sentence may violate article I, section 17, of the California Constitution if it is so
disproportionate to the crime for which it is imposed that it "shocks the conscience and
offends fundamental notions of human dignity." (In re Lynch (1972) 8 Cal.3d 410, 424.)
When applying the Lynch test for disproportionality, a court considers certain factors: 1)
the degree of danger the offender or the offense pose to society; 2) how the punishment
compares with the punishments for more serious crimes in the same jurisdiction; and 3)

*      See footnote *, ante.

how the punishment compares with punishment for the same offense in other
jurisdictions. (Id. at pp. 425-427.)
       A.     Offense and Offender
       Defendant attempts to minimize the seriousness of his felony offenses. He does so
on the ground he was convicted of only second degree burglary and petty theft with a
prior, which may be punished either as felonies or misdemeanors with a maximum term
of three years. However, in People v. Cooper (1996) 43 Cal.App.4th 815, at page 825,
we held:

                      “Further, appellant was punished not just for his current
              offense but for his recidivism. Recidivism justifies the imposition of
              longer sentences for subsequent offenses. [Citation.] The
              imposition of a 25-year-to-life term for a recidivist offender, like
              appellant, convicted of a nonviolent, nonserious felony but with at
              least 2 prior convictions for violent or serious felonies is not grossly
              disproportionate to the crime.”
       Defendant, age 32 at the time of the current offenses, committed his first criminal
offense of which we are aware when he was 24 years old. On March 4, 1987, he
committed a battery and was granted probation requiring 10 days in jail. On January 30,
1989, defendant violated a county ordinance and received five days in jail. The following
month defendant was under the influence of a controlled substance on two occasions,
receiving 180 and 185 days in jail and 3 years of summary probation. On February 18,
1989, defendant committed Vehicle Code violations of driving without a license, failing
to stop at a stop sign, having no proof of financial responsibility, and failure to appear.
He received 15 days in jail. On November 30, 1990, defendant was found in violation of
his probation, and sentenced to 30 days in jail. That same day, he received a jail sentence
of 40 days for an attempted receiving stolen property, and was granted three years
probation. In a separate case, also on the same day, defendant was sentenced to 28 days
in jail and was granted summary probation for theft. On October 10, 1991, while still on
probation, defendant was sentenced to six years in prison for robbery with personal use of

a firearm. The same day he received a concurrent prison term of three years for another
robbery. On September 19, 1994, defendant violated his parole by using heroin. On
October 13, 1994, defendant again violated his parole by using methamphetamine. On
March 19, 1995, defendant violated his parole a third time by failing to follow
instructions, using methamphetamine, and absconding. He was returned to prison for five
months. At the time of these offenses on January 1, 1996, there was an outstanding
warrant for defendant’s arrest out of Sacramento for a parole violation.
         As we stated in People v. Ingram (1996) 40 Cal.App.4th 1397, at pages 1415-

                       “Defendant is precisely the type of offender from whom
                society seeks protection by the use of recidivist statutes. There is no
                indication defendant desires to reform or to change his criminal
                behavior. The record reflects an individual who preys on innocent
                people in order to support a serious drug habit which he has made
                minimal efforts to resolve.

                       “ .................................................................................................

                       “Fundamental notions of human dignity are not offended by
                the prospect of exiling from society those individuals who have
                proved themselves to be threats to the public safety and security.
                Defendant's sentence is not shocking or inhumane in light of the
                nature of the offense and offender.” (Fn. omitted.)
         Habitual offender statutes have long withstood the constitutional claim of cruel or
unusual punishment. (In re Rosencrantz (1928) 205 Cal. 534; People v. Weaver (1984)
161 Cal.App.3d 119, 126.) In short, considering the nature of defendant's offense and the
nature of his criminal history, the sentence he received does not offend fundamental
notions of human dignity or shock the conscience. (Compare People v. Ingram, supra, 40
Cal.App.4th 1397 [sentence of 61 years to life not cruel and unusual for two burglaries
with two prior burglaries]; People v. Cooper, supra, 43 Cal.App.4th 815 [sentence of 25

7      Disapproved on other grounds in People v. Dotson (1997) 16 Cal.4th 547, 560,
footnote 8.

years to life not cruel and unusual for felon in possession of a firearm with two prior
robberies]; People v. Kinsey (1996) 40 Cal.App.4th 1621, at pp. 1630-1631 [sentence of
29 years to life not cruel and unusual for attempted willful infliction of corporal injury
upon a cohabitant with one prior robbery and two prior attempted robberies].)
       B.     Punishment for more serious crimes in California
       Defendant’s comparison of his punishment to that of a murderer is misguided. As
noted above, the Three Strikes law punishes not only his current offenses, but also his
recidivism. (People v. Cartwright, supra, 39 Cal.App.4th at pp. 1136-1137.) Thus,
defendant has not met his burden as required under Lynch to demonstrate that the
challenged punishment is more extreme than the punishment for more serious crimes in
the same jurisdiction. (In re Lynch, supra, 8 Cal.3d at p. 426; see People v. Ingram,
supra, 40 Cal.App.4th 1397; People v. Cooper, supra, 43 Cal.App.4th 815; In re
DeBeque (1989) 212 Cal.App.3d 241, 254-255.)
       C.     Punishment for similar offenses in other jurisdictions
       Similarly, defendant has failed to meet his burden of showing the challenged
punishment is more extreme than the punishment for the same crime in other jurisdictions
with recidivist statutes. California’s Three Strikes law while possibly more severe in
some respects than the schemes of other jurisdictions, is less severe in others. "We
simply note California's Three Strikes scheme is consistent with the nationwide pattern of

substantially increasing sentences for habitual offenders." (People v. Ingram, supra, 40
Cal.App.4th at p. 1416.)

IX. The provisions limiting conduct credits to one-fifth the total term of
imprisonment do not violate the right to equal protection.*
       Defendant contends subdivision (c) of section 667 cannot be applied to him
without violating his right to equal protection of the laws under the Fourteenth
Amendment to the United States Constitution and under article I, section 7, subdivision
(a) of the California Constitution. Specifically, defendant contends that in adopting the
limitation on credits found in subdivision (c) of section 667, the state has created a
classification which will treat him differently from other similarly situated prisoners. No
matter how sterling his conduct in prison, he must serve at least 20 years. If he had
committed his current offense in the past and the serious felonies currently, he would be
able to earn credits in an amount up to one-half of his term. We have previously rejected
this identical contention in People v. Applin (1995) 40 Cal.App.4th 404, 407-412, and we
see no reason to repeat our reasoning here. (See also People v. Cooper, supra, 43
Cal.App.4th at pp. 828-830; People v. Spears (1995) 40 Cal.App.4th 1683, 1687-1688;
People v. McCain (1995) 36 Cal.App.4th 817, 819-822; People v. Sipe (1995) 36
Cal.App.4th 468, 483-484.) We decline defendant’s invitation to reconsider our position
on the issue.
       The judgment is affirmed.

WE CONCUR:                                               _________________________
                                                                       WISEMAN, J.
STONE (W.A.), Acting P.J.


*      See footnote *, ante.

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