Filed 1/9/15 P. v. Smith CA2/1
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION ONE

THE PEOPLE,                                                          B250674
         Plaintiff and Respondent,
                                                                     (Los Angeles County
                                                                     Super. Ct. No. MA052542)
         v.


DEANTE SMITH,
         Defendant and Appellant.




         Appeal from a judgment of the Superior Court of Los Angeles County. Kathleen
Blanchard, Judge. Affirmed with directions.
         William Hassler for Defendant and Appellant.
         Kamala D. Harris, Attorney General, Lance E. Winters, Senior Assistant Attorney
General, Paul M. Roadarmel, Jr., and Brendan Sullivan, Deputy Attorneys General, for
Plaintiff and Respondent.
                                             ____________________
       Defendant Deante Smith appeals from his conviction and sentencing for two
counts of assault with a firearm and two counts of battery causing serious bodily injury,
along with findings on associated allegations that he had personally inflicted great bodily
injury, that he personally used a firearm, and he had two prior serious of violent felony
convictions. His appeal challenges (1) the trial court’s exclusion of certain expert
opinion testimony offered to raise doubt as to the victims’ eyewitness identification of
him; (2) the court’s failure to instruct the jury on the lesser included offense of simple
assault; and (3) the excessive length of the sentence imposed by the court. Respondent
asks that we order clerical corrections to the Abstract of Judgment. We affirm the
judgment.

                                         The Facts1
       Shortly after one o’clock in the morning of March 31, 2011, Donald and Melissa
Howard arrived unannounced at the Lancaster home of Mary Pryzballa, a long-time
friend of Melissa.2 The purpose of the Howards’ early-morning visit was to talk with
Pryzballa about the passing of Melissa’s aunt the previous evening. They parked in the
driveway, went to the porch, and knocked on the door of the unlit house. Hearing no
response, they returned to their car.
       As they prepared to leave, appellant came from the house. When Donald asked
him whether his wife could speak with Pryzballa, appellant reentered the house.3 He
again emerged a few seconds or minutes later, holding a gun. He went to Donald (who


       1
         The facts are recited consistent with the presumption that the court and jury
found all facts supported by substantial evidence that are consistent with the verdicts and
judgment. (Stewart v. Langer (1935) 9 Cal.App.2d 60, 61.) Facts not relevant to the
issues raised by the appeal are omitted.
       2
        The record contains various spellings of Ms. Pryzballa’s name (e.g., Pryzbala,
Pryzbella, Przybyla). We adopt the spelling used in the parties’ briefs and most
frequently in the transcript of proceedings.
       3
           For simplicity, Mr. and Ms. Howard are identified by their given names.


                                              2
was by then sitting in the driver’s seat of the car with the door open) and attacked Donald
with one “straight punch” to his face. Appellant then went to the passenger side of the
car where Melissa was standing, hitting her on the head and knocking her to the ground.
       Donald did not see a gun, but felt that a gun was used to hit him. Melissa saw
appellant approach with a gun, but did not see appellant hitting Donald. Donald revived
his wife and helped her into the car, and she called 911 as they drove away. Donald told
the police in that call that their attacker had used a gun.
       After meeting the police and receiving some medical aid, Donald directed the
police to the site of the attack. In a search of the house they found a photograph of
appellant wedged in the frame of a bedroom mirror, with a note on the back: “To my
future hopefully? Mary Smith. From Mr. D, the real #1. Keeping it 100% for life.”
When showed the photo, Donald and Melissa both identified its subject as their attacker.
(They had met appellant at Pryzballa’s home about a month before the attack, though
they remembered his name only as “D”.) They each also identified appellant from a
photo array about two weeks after the attack.
       The jury was presented with photos of Donald and Melissa taken after the attacks.
The blow to Donald’s nose and forehead left a painful cut requiring stitches and leaving a
scar. Melissa could not recall her injuries in detail, but said her beating left her with
painful bruises on her face, chest, buttocks, ankle, and arm.
       The police found a car in Pryzballa’s garage that she told them was appellant’s,
and that there were indications in the backyard someone had used a trashcan to climb
over a wall. Appellant was arrested in Las Vegas, Nevada, about a year and a half later.
       Pryzballa testified for the defense, most notably that appellant was not present in
her home the night of the attacks, that the car in her garage was not registered to him, and
that she knew him only as a neighbor. The defense also presented the expert testimony of
a university professor of psychology concerning limitations of eyewitness testimony and
lineup identifications.




                                               3
                                     Procedural History
       An amended information filed April 9, 2013, charged appellant in counts 1 and 2
with assault with a firearm on Donald and Melissa, respectively (Pen. Code, § 245, subd.
(a)(2)),4 in count 3 with assault with a deadly weapon on Melissa (§ 245, subd. (a)(1));
and in counts 4 and 5 with battery causing serious bodily injury on Donald and Melissa,
respectively (§ 243, subd. (d)). Special allegations alleged that as to counts 1 through 3
appellant personally inflicted great bodily injury (§ 12022.7, subd. (a)), causing the
offenses to be serious felonies within the meaning of section 1192.7, subdivision (c)(8);
and that he personally used a firearm in committing all the charged offenses (§ 12022.5,
subd. (a)), causing the offenses to be serious felonies within the meaning of section
1192.7, subdivision (c)(8). The information alleged also that appellant had two prior
convictions for serious or violent felonies under the “Three Strikes” law, section 667,
subdivisions (b) through (i), and section 1170.12, subdivisions (a) through (d), and that
he had two prior serious felony convictions under section 667, subdivision (a)(1), section
667.5, subdivision (b), and section 1203, subdivision (e)(4).
       The trial court granted appellant’s motion for acquittal on count 3—assault with a
deadly weapon against Melissa (§ 245, subd. (a)(1))—before the case was submitted to
the jury, based on insufficiency of the prosecution evidence. (§ 1118.1.)
       The jury found appellant guilty on counts 1, 2, 4, and 5, and found the special
allegations to be true. Appellant having waived a jury trial on the Three Strikes and
serious felony prior conviction allegations, after a court trial of the allegations the court
found them to be true. The court sentenced Smith to imprisonment for 81 years to life.5
       Appellant filed a timely appeal from the judgment.




       4
           Statutory references are to the Penal Code unless otherwise specified.
       5
        The court imposed sentences of 32 and 49 years to life on counts 1 and 2,
respectively, and of 29 years (stayed under § 654) on each of counts 4 and 5. It also
imposed fines and fees, and awarded custody credits in amounts not relevant to this
appeal.

                                               4
                                         Discussion
I.     The Trial Court Did Not Unduly Limit The Testimony Of Appellant’s Expert
       Witness Regarding Eyewitness And Lineup Identifications.
       Appellant offered the testimony of Mitchell Eisen, Ph.D., a professor of
psychology who served as Director of a graduate program in forensic psychology at
California State University, Los Angeles. The subject of Dr. Eisen’s intended testimony
was the factors that make lineups suggestible, and affect the accuracy of eyewitness
identifications, including “that this particular photo line-up was suggestive in nature and
how that will have a carry over affect [sic].”
       The trial court denied the prosecution’s motion to exclude the expert’s testimony
altogether. But it ruled also that the testimony could not include hypothetical questions
based on the evidence in this case. “You can ask him what makes a suggestive line-up;
what makes it suggestive. You can ask him about things like that. You cannot ask him
hypotheticals; that is absolutely not proper with an identification witness expert.”
       Dr. Eisen testified on direct examination, without objection, that human memory is
imperfect; that people fill the inherent gaps in their memories with inferences that fit; that
such reconstructed memories are reinforced when witnesses discuss among themselves
the details of an incident they are trying to recall; and that the time a witness is exposed
to a face affects how well he or she can pick the face from a group. Dr. Eisen went on to
testify how system variables (for example, whether the witness is shown an individual
photo or a group of photos) can affect the reliability of the identification. He testified
why it is important to admonish eyewitnesses against unwarranted assumptions about
whether the perpetrator is among those being viewed; how familiarity with the suspect
can affect an identification; how “unconscious transference” (in which a witness
substitutes a familiar face for the imperfectly recalled face of a perpetrator of a crime)
affects eyewitness identifications; the nature and examples of suggestive identification
procedures that affect the reliability of the identification; and the fact that once a person
has made an identification, the person is likely over a period of time to become more
certain of his or her identification. He testified also that his testimony does not involve

                                                 5
review of any evidence concerning the specific facts of the case; his role is to testify to
the broad science of identification, rather than the likelihood that any particular witness’s
identification is right or wrong. “That’s what the jury does . . . .”
       Appellant challenges the trial court’s exclusion of testimony involving
hypothetical questions embodying the facts in this case, arguing that he should have been
permitted to use such questions, as is generally permitted with respect to (for example)
the testimony of a gang expert. The exclusion of such evidence, he contends, deprived
him of his fundamental due process right to present evidence in his defense. We review
the challenged ruling for abuse of discretion. (People v. McDonald (1984) 37 Cal.3d
351, 376, overruled on other grounds in People v. Mendoza (2000) 23 Cal.4th 896, 914;
Amtower v. Photon Dynamics, Inc. (2008) 158 Cal.App.4th 1582, 1599 [“On review, we
may not disturb the trial court’s ruling on the admissibility of opinion evidence absent an
abuse of discretion”].)
       Expert opinion testimony is admissible when its subject is sufficiently beyond the
scope of common experience to be of assistance to the trier of fact. (Evid. Code, § 801,
subd. (a); People v. McDonald, supra, 37 Cal.3d at p. 367.) In People v. McDonald,
supra, our Supreme Court held that “in the appropriate case,” a trial court’s exclusion of
expert testimony concerning eyewitness identification would constitute error: “When an
eyewitness identification of the defendant is a key element of the prosecution’s case but
is not substantially corroborated by evidence giving it independent reliability, and the
defendant offers qualified expert testimony on specific psychological factors shown by
the record that could have affected the accuracy of the identification but are not likely to
be fully known to or understood by the jury, it will ordinarily be error to exclude that
testimony.” (Id. at p. 377.) However, “the decision to admit or exclude expert testimony
on psychological factors affecting eyewitness identification remains primarily a matter
within the trial court’s discretion.” (Ibid.; People v. Sanders (1995) 11 Cal.4th 475, 509.)
       Here, when appellant offered the testimony of a qualified expert on the specific
psychological factors that could affect the accuracy of the eyewitness identifications in
this case, the court ruled the evidence admissible and denied the prosecution’s motion


                                              6
seeking its exclusion. But the court did not permit the witness to go beyond his
explanation of the psychological factors that could affect the accuracy of the eyewitness
identifications in this case, to address hypothetical questions based on the facts of this
case—presumably including (as counsel explained to the court) the indications “that this
particular photo line-up was suggestive in nature and how that will have a carryover
affect [sic].”6
       Appellant’s claim of error therefore is not that the trial court precluded his expert
from explaining the psychological factors that could have affected the accuracy of the
witnesses’ identification of him as their attacker; his testimony on those subjects was
admitted in some detail. Rather, appellant’s claim is that the expert was not permitted to
tell the jury his own opinion about the reliability of Donald’s and Melissa’s
identifications of appellant, based on the various psychological factors about which he
had been permitted to testify.
       When eyewitness identification is a key element of the prosecution’s case, and it is
not substantially corroborated by other evidence, the exclusion of expert opinion
testimony concerning the factors affecting such identifications will ordinarily be error.
(People v. Jones (2003) 30 Cal.4th 1084, 1111-1112; People v. McDonald, supra, 37
Cal.3d at p. 377.) However, the court does not abuse its discretion by excluding expert
opinion testimony where the challenged eyewitness identification testimony is
unequivocal and consistent, is corroborated by multiple witnesses, and is not the only
evidence linking defendant to the crime. (People v. Sanders, supra, 11 Cal.4th at pp.
509-510.) The record in this case meets these criteria.


       6
          An offer of proof is required of a party offering challenged evidence, addressing
“[t]he substance, purpose, and relevance of the excluded evidence” (Evid. Code, § 354,
subd. (a)), and specifying the evidence to be produced. (Bowman v. Wyatt (2010) 186
Cal.App.4th 286, 328-329.) Counsel’s quoted explanation to the trial court—the closest
he came to identifying the nature and content of the evidence he sought to present—falls
far short of the required offer of proof, for it leaves the trial court (and this court) with
little information on which to judge the extent to which it might (or might not) assist the
jury in evaluating the reliability of the identifications.

                                              7
       Donald’s and Melissa’s identification of appellant as their attacker was immediate,
unequivocal, and consistent. Appellant was not unknown to Donald and Melissa the
night of the attack. They had been introduced to appellant by Pryzballa at her home, and
had spent about 15 minutes in his presence during a visit about a month before the attack.
They therefore recognized him when he emerged from Pryzballa’s door the night of the
attack. They both immediately identified appellant as their attacker when they were
showed his photo about an hour after the attack. They both again identified appellant
without hesitation from a photo array about two weeks later. And they identified him
again at trial.
       A number of other pieces of evidence tended to corroborate appellant’s presence at
Pryzballa’s home that night, and his identity as Donald’s and Melissa’s attacker. In their
911 call to the police minutes after the attack, Donald and Melissa identified appellant as
“D,” the name they recalled from having earlier met him. That is the name by which
appellant had identified himself on the back of the photo the police later found on
Pryzballa’s mirror, and is the initial letter of appellant’s given name. In addition,
Pryzballa told the police that night that the car in her garage belonged to appellant. (See
People v. Jones, supra, 30 Cal.4th at pp. 1111-1112 [exclusion of expert opinion
testimony concerning eyewitness identifications is justified when other evidence in case
substantially corroborates identification of the defendant]; People v. Sanders, supra, 11
Cal.4th at p. 510 [trial court did not abuse discretion by excluding expert opinion
testimony on eyewitness identification].)
       Expert opinion is not objectionable merely because it embraces an ultimate issue.
(Evid. Code, § 805.) But an expert’s admissible testimony must be limited to “a subject
that is sufficiently beyond common experience that the opinion of an expert would assist
the trier of fact.” (Evid. Code, § 801, subd. (a).) “‘“Expert opinion is not admissible if it
consists of inferences and conclusions which can be drawn as easily and intelligently by
the trier of fact as by the witness.”’” (Amtower v. Photon Dynamics, Inc., supra, 158
Cal.App.4th at p. 1598; People v. Valdez (1997) 58 Cal.App.4th 494, 506; People v.
Torres (1995) 33 Cal.App.4th 37, 47 [expert opinions regarding defendant’s guilt or


                                              8
innocence are inadmissible because trier of fact is as competent as witness to draw
inferences and conclusions from the evidence].) “[W]hen an expert’s opinion amounts to
nothing more than an expression of his or her belief on how a case should be decided, it
does not aid the jurors, it supplants them.” (Summers v. A. L. Gilbert Co. (1999) 69
Cal.App.4th 1155, 1183.)
       In evaluating and weighing the probative value of the proffered evidence against
its potential for prejudice and undue consumption of time, the trial court is entitled to
(and should) consider the extent to which the additional testimony may or may not assist
the jury in its evaluation of the eyewitness identifications. Here, the trial court applied
Evidence Code section 352 to bar the witness from presenting the jury with his opinions
on those subjects, apparently concluding that the probative value of the evidence was
outweighed by its potential for prejudice and undue consumption of time.
       In People v. Page (1991) 2 Cal.App.4th 161 (Page), the court was faced with
circumstances closely analogous to those in the case at hand. In Page, the defendant was
tried for murder, based in part on a confession he had given to the police. The trial court
admitted the testimony of an expert psychologist for the defense, concerning factors that
can make a person vulnerable to suggestion and lead him to give an inaccurate statement
in an interrogation setting. But much like the challenged ruling in the case at hand, the
court excluded the expert’s proffered testimony specifically relating these principles to
the statements the defendant had given to the police, and expressing his opinion
concerning the confession’s reliability in light of the circumstances shown by the
evidence. (Id. at p. 179.) On appeal, the court affirmed the exclusion of that testimony.
       The court’s analysis in Page is instructive here. There, the expert psychologist
was permitted to testify at length about the factors that may affect the reliability of a
confession. As in the case at hand, there was no blanket exclusion of evidence
concerning the relevant circumstances—in Page, the circumstances under which the
defendant had confessed; in the case at hand, the circumstances under which Donald and
Melissa had each identified appellant as their attacker. Here, Professor Eisen testified at
length concerning how memory works and various factors that tend to influence


                                              9
eyewitnesses to mistakenly identify the perpetrators of traumatic events, to be misled by
identifications given by others, and to erroneously cling to their earlier mistaken
identifications. In each case, this testimony was admissible to present to the jury a body
of information that is sufficiently beyond common experience that the opinion of an
expert on the subject would assist the trier of fact. (People v. McDonald, supra, 37
Cal.3d at p. 369; Page, supra, 2 Cal.App.4th at pp. 187-188.)
       So too, however, here as in Page, the trial court was justified in excluding
testimony going beyond information that might be helpful to the trier of fact in evaluating
the evidence presented at trial, and that would instead have told the jury how it should
apply that general information to the evidence. Here, as in Page, the trial court was
justified in concluding that the testimony given by the experts had sufficiently educated
the jury regarding the applicable general principles, such that “‘the factual issues in the
case [had] become ones that the jurors can answer as easily as the expert.’” (Page, supra,
2 Cal.App.4th at p. 188.) “In other words, an expert’s thorough description of the general
principals to be applied in a given case may make additional (and more specific) expert
testimony superfluous.” (Ibid.) “Having been educated concerning those factors” in
Page, “the jurors were as qualified as the professor to determine if those factors played a
role in [the defendant’s] confession, and whether, given those factors, his confession was
false.” (Id. at p. 189.)
       In the case at hand just as in Page, having been educated concerning the factors
that lead eyewitnesses to make and cling to erroneous identifications, “the jurors were as
qualified as the professor to determine if those factors played a role” in Donald’s and
Melissa’s identification of appellant as their attacker. (Page, supra, 2 Cal.App.4th at p.
189.) The expert’s answers to hypothetical questions that would merely express the
inferences and conclusions the witness would draw from the evidence—inferences and
conclusions that the jury might as easily itself draw—are not necessary or helpful.
“‘Where the jury is just as competent as the expert to consider and weigh the evidence
and draw the necessary conclusions, then the need for expert testimony evaporates.’”
(People v. Vang (2011) 52 Cal.4th 1038, 1054.)


                                             10
       The expert witness in this case having educated the jury concerning the factors
that lead eyewitnesses to make and cling to erroneous identifications, the trial court did
not abuse its discretion when it prevented him from further informing the jury about how
he would apply those factors to the evidence presented for the jury’s consideration. It
was within the court’s discretion to conclude that the proffered testimony was not
sufficiently beyond the jury’s understanding to be helpful in its evaluation of the
evidence. (People v. McDonald, supra, 37 Cal.3d at p. 373 [trial court has broad
discretion to admit or exclude expert testimony]; People v. Clark (1970) 6 Cal.App.3d
658, 664 [same].)
       In the absence of a more complete offer of proof we can only assume that if he had
not been prevented from doing so, appellant’s counsel would have posed hypothetical
questions embodying the various factors that Eisen had testified might affect the
reliability of an eyewitness identification (such as the lateness of the hour, the Howards’
admittedly less-than-complete opportunity to see their attacker, the extremely harrowing
circumstances, their initial identification based on a single photograph rather than an
array, etc.), with reference to the facts surrounding the Howards’ identifications of
appellant as their attacker. These factors and facts were already in evidence, and were
the subject of the testimony Eisen was permitted to present. Nothing indicates that the
jury might have been substantially aided in its evaluation of the evidence by hearing
Eisen’s own conclusions about the facts that the jury was called upon to decide. (See
People v. Vang, supra, 52 Cal.4th at pp. 1051-1052 [hypothetical questions should not be
prohibited solely because they closely track the evidence or express the expert’s opinion,
but the court has discretion to exclude opinion testimony “regarding the actual
defendants, . . . because the jury can determine what the defendants did as well as the
expert . . . .”]; People v. Valdez, supra, 58 Cal.App.4th at p. 506 [expert opinion is not
admissible that consists of inferences and conclusions that can be drawn as easily by the
trier of fact as by the witness].)
       Moreover, even if the trial court’s discretionary ruling precluding Dr. Eisen from
answering hypothetical questions based on the factual circumstances before the jury had


                                             11
been error, we find that it was harmless to appellant’s cause. It is highly improbable that
the jury would have returned a verdict more favorable to appellant if it had heard Dr.
Eisen testify to his belief that Donald’s and Melissa’s identifications of appellant as their
attacker might have been affected by the circumstances about which he had been
permitted to testify at length. (See People v. Vang, supra, 52 Cal.4th at p. 1052 (conc.
opn. of Werdegar, J.).)
II.    The Trial Court’s Failure To Instruct The Jury On The Lesser Included
Offense Of Simple Assault Did Not Prejudice Appellant.
       Appellant contends that the trial court erred by failing to instruct the jury on
simple assault as a lesser included offense of assault with a firearm as charged in counts 1
and 2. And he claims that he was prejudiced by the failure to give the lesser-included-
offense instruction. The record shows otherwise.
       At the jury instruction conference, the trial court discussed with counsel whether
the jury should be instructed on simple assault (§ 240) as a lesser included offense of the
count 1 and 2 charges of assault with a firearm (§ 245, subd. (a)(2)). The court suggested
its doubt that such an instruction would be beneficial to appellant, but stated its
willingness to give such an instruction “based on the request of the two of you,” and that
it would consider giving the instruction if the defendant requested it. “I’m simply trying
to protect the rights of the defendant in this case. But if—I’m not his attorney—tactically
you think you do want that [instruction] in there, then I’ll consider giving it.” Counsel
for both the People and appellant then told the court that neither party was asking that the
jury be instructed on the lesser included offense of simple assault to the count 1 and 2
charges of assault with a firearm.
       At appellant’s request, the court instructed the jury on simple battery (§ 242) as a
lesser included offense to the count 4 and 5 offense of battery with serious bodily injury
(§ 243, subd. (d)). But with the consent of both parties, it did not instruct the jury on
simple assault as a lesser included offense to the count 1 and 2 charges of assault with a
firearm.



                                             12
        A lesser included offense is an offense that is encompassed within the charged
offense. (People v. Breverman (1998) 19 Cal.4th 142, 162.) A trial court has a duty to
instruct the jury on a lesser included offense—with or without a party’s request—
whenever the evidence would support a reasonable jury in concluding that the defendant
is not guilty of the charged offense, but is guilty of the lesser included offense. (People v.
Avila (2009) 46 Cal.4th 680, 705; People v. Cole (2004) 33 Cal.4th 1158, 1215.) On
appeal, we review independently the question whether the trial court improperly failed to
instruct the jury on a lesser included offense. (People v. Souza (2012) 54 Cal.4th 90,
113.)
        The parties have no dispute that simple assault (§ 240) is a lesser included offense
of the crime of assault with a firearm (§ 245, subd. (a)(2)), as many cases have at least
suggested. (E.g., People v. Colantuono (1994) 7 Cal.4th 206, 213, fn. 2 (maj. opn.) &
223, fn. 1 (conc. opn. of Mosk, J.); People v. Miceli (2002) 104 Cal.App.4th 256, 272;
People v. Mitchell (1988) 199 Cal.App.3d 300, 302, fn. 2; see People v. McDaniel (2008)
159 Cal.App.4th 736, 747-748 [simple assault is lesser included offense of aggravated
assault and assault by prisoner].)
        Appellant argues on appeal that the jury should have been instructed on simple
assault as a lesser included offense, because the jury could reasonably have concluded
from the evidence that although appellant assaulted Donald and Melissa, the evidence
was insufficient to show that he used a gun in the assaults. He points to a question
submitted by the jury during its deliberations, asking the court whether the charge of
assault with a firearm required that the defendant “used” the firearm to injure the victim,
or only that the firearm was “present” at the assault. The jury returned its verdicts shortly
after it was told by the court (with the approval of counsel for both parties) that the
firearm’s “mere presence” was not sufficient to support the charge, but proof that the
firearm was “used to inflict injury” was not required.
        Appellant argues that this question indicates the jury’s doubts about whether a
firearm played anything more than a peripheral role in the assault, indicating that it might
have convicted him of simple assault, rather than assault with a firearm, if they had been


                                             13
given that opportunity. Respondent counters that no evidence supports the theory that
appellant did not use a gun. Although Donald saw no gun, appellant’s blows felt as
though they were inflicted by a gun; and Melissa testified that she saw appellant with a
gun, and her injuries could not have been inflicted by fists alone.
       We decline to address whether the evidence did or did not impose a duty on the
court to give the jury the lesser-included-offense instruction. Even assuming that the
court had such a duty, any error in failing to instruct the jury on the lesser included
offense was necessarily harmless by any standard. This is because the jury not only
found appellant guilty of assault with a firearm as to counts 1 and 2, but also
independently found that appellant “personally used a firearm” in committing the
offenses. (§ 12022.5, subd. (a).)
       Because appellant “personally used a firearm” in committing the assaults, he was
necessarily guilty of assault with a firearm, rather than simple assault. The independent
findings that appellant “personally used a firearm” in his assaults of Donald and Melissa
negate any possibility that it might also have found that he did not actually use a firearm.
They are incompatible with the contention that the jury might have convicted appellant of
simple assault rather than assault with a firearm if it had been instructed on assault as a
lesser included offense. The court’s failure to instruct that it was entitled to reach such a
finding therefore necessarily was of no consequence to the verdicts.
III.   Appellant’s Sentence Does Not Inflict Cruel And Unusual Punishment.
       Appellant contends (for the first time on appeal) that his sentence of 81 years to
life in prison under the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12), is so grossly
disproportionate to his offenses that it amounts to cruel and unusual punishment under
the Constitutions of the United States and the State of California.7 In light of his long
history of violent crime, we conclude that appellant’s sentence of 81 years to life



       7
          Appellate courts have the authority to determine whether a sentence results in
cruel or unusual punishment, notwithstanding an appellant’s failure to address the claim
in the trial court. (People v. Meeks (2004) 123 Cal.App.4th 695, 706 [citing cases].)

                                             14
imprisonment does not constitute cruel or unusual under the state or federal
Constitutions.
       California’s Three Strikes law provides for enhancements of prison terms for new
offenses because of prior prison terms. It requires a term of life imprisonment with a
minimum term of at least 25 years for a conviction of a third felony after two or more
prior convictions for what are defined by statute as “violent” or “serious” felonies. (§§
667.5, 1192.7, subd. (c).) Under section 667.5, subdivision (c)(8), a “violent” felony
includes any felony in which the defendant inflicts great bodily injury on any person
other than an accomplice, which has been charged and proved as provided for in sections
12022.7 or 12077.9, and any felony in which the defendant uses a firearm, which use has
been charged and proved as provided in section 12022.5. Under section 1192.7,
subdivision (c)(8), a “serious” felony includes any felony in which the defendant
personally uses a firearm. (People v. Martinez (1999) 71 Cal.App.4th 1502, 1505, fns. 1,
2, 3, 1511.)
       Appellant was convicted of two counts of assault with a firearm (§ 245, subd.
(a)(2)), and two counts of battery causing serious bodily injury (§ 243, subd. (d)). He
was found to have inflicted great bodily injury on his two victims, using a firearm. (§§
12022.7, subd. (a), 12022.5, subd. (a).) He had been found to have a long history of
serious felonious conduct, having sustained two prior serious or violent felony
convictions for carjacking and robbery, and at the time of the current offenses he was on
parole for felony possession of a firearm. As the trial court explained, appellant is
“someone who is in that pattern of the revolving door of the criminal justice system,”
justifying imposition of the additional penalties for recidivism. “Back in 1998 when he
suffered both of the prior strike convictions [under the Three Strikes law], he was
sentenced to nine years in the state prison. Upon being paroled from that, he picked up a
new misdemeanor conviction in 2005. Then in 2007, he picked up two separate felony
cases” (one involving furnishing a controlled substance, the other for possession of an
assault weapon and ammunition by a felon). “[A]nd he did four years in state prison
back in 2007 on that firearm case, and then of course picked up this new case today.”


                                             15
       The trial court found that appellant’s crimes demonstrate “a high degree of cruelty,
viciousness or callousness.” His victims, the Howards, “were basically ambushed” by
appellant. They were attacked without provocation or warning while they “were in a
particularly vulnerable state.”
       Selecting count 2 (the assault on Melissa) as the base term, the court imposed a
total sentence on that count of 49 years to life in prison. Its sentence on that count
consisted of a life term with a minimum parole eligibility of 25 years under section 667,
subdivisions (b) through (i), and section 1170.12, subdivisions (a) through (d); a
consecutive 10-year sentence, the high term under section 12022, based on the
circumstances of the crime (involving great violence, the fact and threat of great bodily
harm, a high degree of cruelty, viciousness or callousness, the victims’ vulnerable state,
and the defendant’s danger to society); an additional consecutive sentence of three years
under section 12022.7, subdivision (a); two additional consecutive five-year terms under
section 667, subdivision (a);8 and an additional one-year consecutive sentence for his
previous prison term for possession of a firearm by a felon (former § 12021, subd. (a)(1)).
The court struck the firearm enhancement with respect to appellant’s other prior felony
conviction.
       For count 1 (the assault on Donald), the court sentenced appellant to a total of 32
years to life in prison, consisting of a life term with a minimum parole eligibility of 25
years under section 667, subdivisions (b) through (i), and section 1170.12, subdivisions
(a) through (d); an additional four-year consecutive sentence, the midterm under section
12022; and an additional three-year consecutive sentence under section 12022.7,
subdivision (a).9


       8
        Section 12022.7, subdivision (a) requires the additional and consecutive term of
three years for the infliction of great bodily injury in the commission of a felony. Section
667, subdivision (a), requires an additional and consecutive term of five years for each
prior conviction for a serious felony, as defined in section 1192.7, subdivision (c).
       9
        For each of counts 4 and 5 the court imposed sentences of 25 years to life, with
four years of enhancements, but stayed those sentences under section 654.

                                             16
       The cruel and unusual punishment clause of the United States Constitution’s
Eighth Amendment provides that “Excessive bail shall not be required, nor excessive
fines imposed, nor cruel and unusual punishments inflicted.” The California Constitution
also provides that “Cruel or unusual punishment may not be inflicted.” (Cal. Const. art. I,
§ 17.) “‘Whether a punishment is cruel and unusual is a question of law for the appellate
court, but the underlying disputed facts must be viewed in the light most favorable to the
judgment.’” (People v. Mantanez (2002) 98 Cal.App.4th 354, 358.)
       A sentence violates these constitutional prohibitions only if it is grossly
disproportionate to the defendant’s crime, in light of both the circumstances of the current
offense or offenses and the defendant’s history as a recidivist offender. In Rummel v.
Estelle, supra, 445 U.S. 263 (Rummel), the United States Supreme Court held that society
is warranted in imposing increasingly severe penalties on recidivist offenders. A
recidivist sentencing statute’s primary goals “are to deter repeat offenders and, at some
point in the life of one who repeatedly commits criminal offenses serious enough to be
punished as felonies, to segregate that person from the rest of society for an extended
period of time.” (Id. at pp. 284-285; Ewing v. California (2003) 538 U.S. 11, 29.)
California courts have adopted this reasoning in upholding life sentences for third strike
offenders. (People v. Martinez, supra, 71 Cal.App.4th at p. 1511.)
       In determining whether a particular sentence under a recidivist sentencing statute
such as the Three Strikes law is unconstitutionally excessive or disproportionate to the
defendant’s crime, the reviewing court determines whether the sentence constitutes cruel
and unusual punishment “as applied to the specific circumstances involved in the case at
issue.” (In re Coley (2012) 55 Cal.4th 524, 553, italics omitted.) The reviewing court
considers three criteria: the gravity of the offense and the harshness of the penalty; the
sentence imposed on other offenders in the same jurisdiction; and the sentences imposed
for the same crime in other jurisdictions. (In re Lynch (1972) 8 Cal.3d 410, 425; People
v. Meeks, supra, 123 Cal.App.4th at p. 707.)
       Appellant argues that his sentence is harsh by suggesting that his release during
his lifetime is unlikely, due to his age and the number of his current and prior serious


                                             17
felony offenses. But appellant does not address the claimed harshness of the sentence in
the context of the number and severity of the crimes for which he was convicted, or his
history of prior violent and serious felony offenses—the factors that justify the state’s
imposition of increasingly severe penalties on offenders who repeatedly commit serious
criminal offenses. (Ewing v. California, supra, 538 U.S. at p. 29; People v. Martinez,
supra, 71 Cal.App.4th at p. 1511.) Nor does appellant suggest that his sentence is harsher
than those imposed on other offenders in this state for similarly violent and serious
offenses, or harsher than sentences imposed in other jurisdictions for such repeated
felony offenses. (See In re Lynch, supra, 8 Cal.3d at p. 425; People v. Meeks, supra, 123
Cal.App.4th at p. 707.)
       Viewed in the light most favorable to the judgment, appellant was convicted using
a handgun to beat two defenseless victims with a handgun, in the dark and without
provocation or warning, causing severe head wounds to one victim and knocking the
other unconscious with his blows. He was sentenced for those offenses based on his
status as a repeat offender, having been convicted of carjacking and more recently for
being a felon in possession of a firearm, an offense for which he was on parole at the time
of the current offenses. On this record, appellant’s sentence does not violate the
prohibitions against cruel and unusual punishments of the California or United States
constitutions.
IV.    Amendment Of The Abstract Of Judgment To Correct Clerical Errors.
       The respondent’s brief asks that we order modification of the abstract of judgment
in this case in two respects: (1) to correct a clerical error regarding the statutory scheme
under which appellant was sentenced; and (2) to correct a clerical error regarding the
statutory scheme under which appellant was awarded presentence credits. Appellant’s
reply brief does not address these requests. Clerical errors in the record may be corrected
by trial or appellate courts at any time. (People v. Mitchell (2001) 26 Cal.4th 181, 185,
187-188.)
       Respondent asks that the abstract of judgment be corrected to reflect that appellant
was sentenced under the Three Strikes law, section 667, subdivisions (b) through (i), and


                                             18
section 1170.12, by checking the corresponding box at Item 8 of the Abstract of
Judgment, page 1. This correction is justified by the trial court’s specific references in its
sentencing statement to the applicable provisions of law.
       Respondent asks also that the abstract of judgment be corrected to reflect that the
trial court awarded appellant presentence conduct credits under section 2933.1, which
provides that a person convicted of a felony listed in subdivision (a) of section 667.5
(encompassing the violent felonies for which appellant was convicted) “shall accrue no
more than 15 percent of worktime credit, as defined in Section 2933.” The trial court’s
application of the 15 percent limitation of section 2933.1, justifying the requested
correction in the abstract of judgment, is shown by its grant of 258 days of credit, “plus
38 days of good time/work time credits, for a total of 296 days of presentence custody
credit”—constituting 15 percent of 258, rounded to the nearest whole number.

                                     Disposition
       The judgment is affirmed. The Abstract of Judgment is ordered corrected as
follows: (1) to reflect that appellant was sentenced under the Three Strikes law, section
667, subdivisions (b) through (i), and section 1170.12, by checking the corresponding
box at Item 8 of the Abstract of Judgment, page 1; and (2) to insert a mark in row A of
Item 15 of the Abstract of Judgment, page 2, indicating the conduct credits are calculated
under section 2933.1.
       NOT TO BE PUBLISHED.

                                                  CHANEY, Acting P. J.

We concur:

              JOHNSON, J.


              BENDIX, J.*

       *
          Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.

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