Filed 3/20/14 P. v. Duke CA2/8
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION EIGHT



THE PEOPLE,                                                          B246650

                         Plaintiff and Respondent,                   (Los Angeles County
                                                                      Super. Ct. No. BA394774)
                   v.

ALVILEN DUKE,

                         Defendant and Appellant.



         APPEAL from the judgment of the Superior Court of Los Angeles County.
Drew E. Edwards, Judge. Affirmed.

         Gail Ganaja, under appointment by the Court of Appeal, for Defendant and
Appellant.


         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, and Victoria B. Wilson, Deputy
Attorney General, for Plaintiff and Respondent.


                                                 **********
       Defendant and appellant Alvilen Duke appeals from a judgment, following a jury
trial, in which he represented himself. The jury convicted defendant of one count of
inflicting corporal injury on a cohabitant. In a bifurcated proceeding, the court found true
defendant had suffered a prior felony that qualified as a strike under the “Three Strikes”
law. Defendant was sentenced to an eight-year prison term. On appeal, defendant
contends the trial court abused its discretion in refusing to allow impeachment evidence
against the main prosecution witness, and also erred in denying his Romero motion to
strike a prior strike.1 We affirm.
                 FACTUAL AND PROCEDURAL BACKGROUND
       On the afternoon of March 6, 2012, Karen K. was in her apartment with defendant,
who had recently moved in with her. The apartment, No. 310, was on the third floor of
the building. Howard Gray lived in an apartment on a lower floor, across a courtyard
from apartment 310. Mr. Gray often heard yelling and profanity coming from apartment
310 (one female voice, one male).
       On March 6, Mr. Gray heard another loud argument occurring in apartment 310
between a man and a woman. The yelling was on and off for almost an hour. He then
heard a loud noise, like something “slamming” into the pavement in the courtyard.
Mr. Gray ran to his window and saw defendant and Karen2 in the window of their
apartment. He also saw that a window screen was lying in the courtyard below their
third-floor window.
       Mr. Gray saw defendant had his left hand on Karen’s neck, and, from his vantage
point, it appeared defendant was holding Karen about six inches out of the window. Mr.
Gray feared defendant was going to push Karen out of the window completely. He




1      People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
2     Mr. Gray did not personally know defendant or Karen, but recognized them as
neighbors.

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telephoned the apartment manager to report the incident and obtain their apartment
number, and then called 911.
       John Lamberti, an officer with the Los Angeles Police Department, received the
dispatch call to report to the apartment building based on Mr. Gray’s 911 call. Officer
Lamberti and his partner, who had been on patrol, reported to the apartment building and
immediately went upstairs to apartment 310.
       Karen answered their knock at the door, thanked them for coming, pointed at
defendant who was lying on a bed in the front room and said “ ‘[h]e choked me.’ ”
Officer Lamberti saw the window in the apartment was missing a screen, which was later
found in the courtyard below the window. Officer Lamberti spoke with Karen about
what had happened, and she showed him a red mark on her neck and a scratch on her
arm. She said she received those injuries from defendant when he tried to choke her and
she tried to pull away. Officer Lamberti took photographs of both injuries. Karen denied
wanting any medical assistance. Officer Lamberti placed defendant under arrest.
       Defendant was charged by information with one count of inflicting corporal injury
on a cohabitant. (Pen. Code, § 273.5, subd. (a).) It was further alleged defendant had
suffered a prior strike for second degree murder. (§ 667, subds. (b)-(i), § 1170.12,
subds. (a)-(d).) Defendant pled not guilty and denied the special allegation.
       In August 2012, defendant moved, pursuant to Faretta v. California (1975) 422
U.S. 806, to represent himself. Defendant signed a Faretta waiver form and the court
made the requisite findings allowing defendant to represent himself. Standby counsel
was appointed.
       During pretrial proceedings on November 15, 2012, defendant asked the court to
consider his request to strike his prior conviction pursuant to Romero. The court stated
defendant should have filed a written motion, but that if defendant wanted the court to
consider his request, he could make a request of the trial court once he was assigned to a
trial department. The court then told defendant: “In light of the charges I think you
[have] an uphill battle. . . . [But] [y]ou can certainly make your motion, sir.”


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       The next day, the case was sent to the trial department. Before the prospective
jurors were called in, the court asked if there was a disposition in the case. Defendant
told the court he was unwilling to accept the prosecution’s offer of a plea to four years.
The court responded: “That is certainly your right, sir. If it doesn’t go your way at trial
the maximum sentence you could serve is eight years in state prison. You have a fairly
lengthy record. . . . [¶] . . . [¶] . . . If it doesn’t go your way chances are pretty good you
are going to be up to or make maybe the maximum sentence. I want to be clear to you.”
Defendant then asked whether the court would hear his Romero motion. The court
responded: “That motion is not timely filed. That must be filed ten days before. We are
here for trial.”
       The case proceeded to trial. Mr. Gray and Officer Lamberti testified to the facts
set forth above. Mr. Gray’s 911 call was played for the jury. Mr. Gray reported to the
911 operator that “one of [his] neighbors is choking his, looks like his girlfriend, and
holding her partially out the window and they live on the third floor.” The photographs
Officer Lamberti took of Karen’s injuries were also received as exhibits.
       Before Karen testified in the prosecution’s case-in-chief, the court entertained
argument about matters of possible impeachment. The court ruled on defendant’s motion
in limine to exclude his criminal history in the prosecution’s case-in-chief. Defendant
indicated his intent not to testify, and the court indicated that if he changed his mind and
decided to testify, the prosecution could impeach with his 1982 prior murder conviction,
but could not raise a 2001 arrest arising from a domestic dispute which did not result in a
conviction.
       As for Karen, the court ruled that “none of the criminal background in her case
rises to the level of moral turpitude.” The court instructed defendant that he could not
ask about Karen’s “misdemeanor convictions for drug offenses or prostitution.”
Defendant responded that Karen “is a drug addict and she is delusional. It plays an
important part of what she is saying here on the charge.” The court told defendant he was
free to ask Karen about whether she was under the influence of drugs or alcohol at the
time of the offense, but could not impeach with the convictions.
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       Karen testified to the events that transpired on March 6, 2012. She explained she
and defendant had been living together a few months and that she was scared of him
because he was abusive. She admitted they were both yelling at each other on March 6
for awhile, at least 30 minutes, when defendant charged at her and pushed her toward the
window. Karen said he pushed her up against the window and the screen fell out.
Defendant tried to choke her and was pushing against her so that her head and neck were
six inches to a foot out of the window. She was afraid he was violent enough to throw
her out of the window.
       During cross-examination, defendant asked numerous questions directed to
Karen’s alleged drug use and mental health issues, many of which were argumentative
and consisted of testimony by defendant. Objections were sustained and a brief recess
was taken outside the presence of the jury. The court reminded defendant of the scope of
relevant testimony and that he had to comply with the rules of evidence.
       When cross-examination of Karen resumed, defendant inquired several times if
she caused the injuries to her arm and neck that she had showed Officer Lamberti on
March 6. Karen denied she caused the injuries herself. She denied that she knocked the
screen out of the window, and reiterated it happened when “you grabbed me by my throat
and tried to push me out the window.” Defendant asked Karen about whether she was
“high” on March 6, and she conceded that she was. Defendant continued on with a fairly
lengthy cross-examination focused largely on Karen’s alleged motives for testifying
against him.
       The jury found defendant guilty as charged. Defendant waived his right to a jury
trial on the bifurcated prior allegation.
       On January 30, 2013, a day before the court trial on the prior strike, defendant
filed a written motion requesting the court to strike his prior strike. The sentencing
memorandum filed by the prosecutor several weeks earlier included opposition to
defendant’s request to strike the strike. The court denied defendant’s motion, stating it
was not “timely filed.”


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       The prosecution proceeded to prove up the prior strike through the presentation of
a fingerprint expert. The court found true that defendant had suffered the prior
conviction for murder in 1982 in the state of Minnesota. Defendant was sentenced to a
total state prison term of eight years, consisting of the upper term of four years for the
offense, doubled due to the prior strike. Defendant was awarded 586 days of presentence
custody credits, and ordered to pay various fines and fees.
       This appeal followed.
                                       DISCUSSION
1.     The Exclusion of Impeachment Evidence
       Defendant contends the court abused its discretion in refusing to allow the victim,
Karen, to be impeached with evidence of former misdemeanor convictions for
prostitution. The record is unclear whether there were two or three convictions, and the
record does not indicate how old those convictions were. Defendant argues the court
erred in finding the convictions were not crimes of moral turpitude, and therefore not
admissible. Defendant contends the court’s error was an abuse of discretion. We are not
persuaded.
       “A trial court’s exercise of discretion in admitting or excluding evidence is
reviewable for abuse [citation] and will not be disturbed except on a showing the trial
court exercised its discretion in an arbitrary, capricious, or patently absurd manner that
resulted in a manifest miscarriage of justice [citation].” (People v. Rodriguez (1999) 20
Cal.4th 1, 9-10.)
       Respondent argues defendant forfeited the claimed evidentiary error by failing to
object to the court’s ruling or making any offer of proof as to how the victim’s conviction
for prostitution was relevant to the truth of her testimony against defendant. (See People
v. Alvarez (1996) 14 Cal.4th 155, 200 [finding the defendant forfeited appellate challenge
to court’s exclusion of prior misdemeanor prostitution convictions for impeachment
where defendant did not offer any argument as to how “such evidence would have been
relevant for impeachment”].) The record here demonstrates defendant was focused on
seeking to impeach Karen’s testimony with evidence she regularly used drugs and had
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mental health issues. At no time did defendant ever make even a basic argument to
explain how Karen’s misdemeanor convictions for prostitution reflected on her veracity.
       We find defendant has forfeited the claim. Even if he had not forfeited the claim,
and even if we were to assume, solely for the sake of argument, that the impeachment
was improperly excluded (and, to be clear, we do not find any such error), the claimed
error was harmless beyond a reasonable doubt.
       The Supreme Court has explained: “Although the right of confrontation includes
the right to cross-examine adverse witnesses on matters reflecting on their credibility,
‘trial judges retain wide latitude insofar as the Confrontation Clause is concerned to
impose reasonable limits on such cross-examination.’ [Citation.]” (People v.
Quartermain (1997) 16 Cal.4th 600, 623, quoting Delaware v. Van Arsdall (1986) 475
U.S. 673, 679.) “A trial court’s limitation on cross-examination pertaining to the
credibility of a witness does not violate the confrontation clause unless a reasonable jury
might have received a significantly different impression of the witness’s credibility had
the excluded cross-examination been permitted.” (Id. at pp. 623-624.)
       The record contains solid, uncontradicted corroboration of Karen’s testimony
about the incident from both the neighbor, Mr. Gray, and Officer Lamberti. Mr. Gray
said after hearing a loud, profane argument for almost an hour, he heard a loud noise and
then saw defendant and Karen in the window of their third-story apartment. He said
defendant’s hand was around Karen’s neck and he was holding her out the window. His
own account of the incident was corroborated by the tape of his 911 call which was
played for the jury. Officer Lamberti testified to the statement of events he received from
Karen about what happened, which was consistent with her testimony, as well as
Mr. Gray’s testimony. Officer Lamberti also saw the injuries on Karen’s arm and neck
and documented them, and those photographs were received into evidence.
       Further, defendant was given wide latitude to cross-examine Karen about her drug
use on the day of the incident and alleged inconsistencies in her testimony. Defendant
was able to obtain Karen’s admission she was “high” on March 6. Given the state of the
record, it is inconceivable that the jury would have received a “significantly different
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impression” of Karen’s credibility had it heard she had suffered prior misdemeanor
convictions for prostitution.
2.     Denial of the Romero Motion
       Defendant contends the trial court refused to consider his Romero motion on the
grounds it was untimely, which he argues was the equivalent of the court finding it lacked
jurisdiction to dismiss the strike, and that he is therefore entitled to a remand for
consideration of his motion on the merits and resentencing. We are not persuaded.
       We review a court’s ruling on a Romero motion under the deferential abuse of
discretion standard. (People v. Williams (1998) 17 Cal.4th 148, 162 (Williams); accord,
People v. Carmony (2004) 33 Cal.4th 367, 375-376 (Carmony) [holding abuse of
discretion standard also applies to review of a trial court’s decision declining to strike a
prior strike].) A trial court is “presumed to have acted to achieve legitimate sentencing
objectives” and the decision to impose a particular sentence will not be set aside unless
an affirmative showing is made that the sentence is irrational or arbitrary. (Carmony, at
pp. 376-377.) “[A] trial court does not abuse its discretion unless its decision is so
irrational or arbitrary that no reasonable person could agree with it.” (Id. at p. 377.)
       In exercising its discretion whether to strike a prior strike allegation, the court
considers various factors, including the nature and circumstances of the defendant’s
present felonies and prior convictions, the defendant’s background, character, and
prospects, and whether the defendant may properly be deemed outside the spirit of the
Three Strikes law. (Williams, supra, 17 Cal.4th at p. 161.) At sentencing, the trial court
found defendant’s Romero motion was untimely and therefore did not weigh the Williams
factors on the record. However, a court denying a motion to strike need not state the
reasons for its denial on the record. (Carmony, supra, 33 Cal.4th at p. 376 [Penal Code
section 1385 only requires trial court to state reasons for striking a strike, not for denying
to strike]; see also People v. Zichwic (2001) 94 Cal.App.4th 944, 960.)
       However, when a court denying a Romero motion states the reasons for its denial
on the record, the court must state legally correct reasons. A motion to dismiss a prior
strike may be made at any time, up to the entry of judgment. (Romero, supra, 13 Cal.4th
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at p. 524, fn. 11; accord, 5 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Criminal
Trial, § 475, p. 740.) Nonetheless, we disagree the court’s statement that the motion was
untimely somehow suggests that the court thought it lacked the authority to rule on the
merits of the motion. There is simply nothing in the record to suggest that, having heard
defendant’s various motions to strike the strike and received the prosecution’s sentencing
memorandum which included an opposition to the Romero motion, the court (a veteran
criminal jurist) was unaware it had discretion to strike the strike.
       Furthermore, insofar as the court erred in denying the motion as untimely,
defendant has not shown prejudice or any basis for a remand for resentencing. “Romero
establishes that where the record affirmatively discloses that the trial court misunderstood
the scope of its discretion, remand to the trial court is required to permit that court to
impose sentence with full awareness of its discretion as clarified in Romero. (Romero,
supra, 13 Cal.4th at p. 530, fn. 13.) Romero also clearly holds that remand is not
required where the trial court’s comments indicate that even if it had authority to strike a
prior felony conviction allegation, it would decline to do so. (Ibid.)” (People v.
Fuhrman (1997) 16 Cal.4th 930, 944.)
       Nothing in the court’s remarks or decision supports a determination the court was
inclined to find defendant outside the spirit of Three Strikes law. As the trial court stated
in pretrial proceedings, defendant had a lengthy criminal record, and the trial court
underscored that point to defendant in an effort to make him understand that if he
declined the plea offer and went to trial, he risked being sentenced to prison for eight
years. More to the point, we find it is manifestly clear that nothing about defendant’s
record, background, character, and prospects remotely suggests that any trial judge might
find he falls outside the letter or spirit of the Three Strikes law. Defendant’s probation
report details a criminal record spanning more than three decades, across four states, and
consisting of both felony and misdemeanor convictions, including drug offenses,
unlawful possession of a weapon, driving with a suspended license and evading arrest.
The court chose the upper term on the infliction of corporal injury count. The prior strike


                                               9
was a murder conviction arising from the death of a woman who also was in a domestic
relationship with defendant, like the victim in the present case.
       The Three Strikes law creates a sentencing norm and “carefully circumscribes the
trial court’s power to depart from this norm.” (Carmony, supra, 33 Cal.4th at p. 378.)
“[T]he law creates a strong presumption that any sentence that conforms to these
sentencing norms is both rational and proper.” (Ibid.) Defendant has failed to make any
showing that the trial court might have concluded that his was an “extraordinary” case
warranting the striking of defendant’s prior murder conviction. (Id. at. pp. 378-379.)
                                      DISPOSITION
       The judgment of conviction is affirmed.




                                                         GRIMES, J.




We concur:


              BIGELOW, P. J.




              RUBIN, J.




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