Filed 6/5/15 P. v. O’Conner CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                                     or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E060763

v.                                                                       (Super.Ct.No. FVI1302859)

CHARLES EVLIN O'CONNER,                                                  OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of San Bernardino County. Debra Harris,

Judge. Affirmed with directions.

         Nancy Olsen, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

Barry Carlton and Minh U. Le, Deputy Attorneys General, for Plaintiff and Respondent.




                                                             1
       A jury convicted defendant and appellant Charles Elvin O’Conner of first degree

burglary (Pen. Code, § 459, count 1)1 and receiving stolen property (§ 496, subd. (a),

count 2). Defendant waived his right to a jury trial on the alleged prior convictions and

admitted two prior strike convictions (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and

four prior prison terms (§ 667.5, subd. (b)). The trial court sentenced defendant to a third

strike indeterminate term of 25 years to life in state prison for count 1. For count 2, the

court imposed and stayed a term of six years.

       On appeal, defendant argues that: (1) his attorney rendered ineffective assistance

of counsel by failing to object to an officer’s multiple hearsay testimony; (2) there is

insufficient evidence to support the burglary conviction; (3) the trial court abused its

discretion by refusing to strike his prior strike convictions under section 1385; (4) his

sentence of 25 years to life for the burglary conviction constitutes cruel and unusual

punishment; and (5) the reporter’s transcript of the sentencing hearing erroneously states

that the court imposed four one-year enhancements for the four prior prison terms. For

the reasons discussed post, we affirm the judgment, but direct the trial court to modify the

minute order for the sentencing hearing and the abstract of judgment to reflect that the

court stayed the four one-year enhancements.




       1   Unless stated otherwise, all further statutory references are to the Penal Code.



                                               2
                   FACTUAL AND PROCEDURAL BACKGROUND

        1. The Prosecution’s Case

              a. The items found in defendant’s apartment

        Defendant and the victim were both residents of the same apartment complex in

Barstow, California. A few days prior to September 5, 2013, the victim had reported to

the police that several DVD’s and a DVD player were missing from her apartment unit.

On September 5, 2013, one of the complex’s property managers inspected defendant’s

unit for floor damage and conducted a maintenance check of the unit’s attic crawl space.

As the property manager was about to enter the crawl space, defendant approached him

and asked him not to say anything about what he saw in the attic and that he had “F’d

up.” Defendant showed the manager “track marks” on his forearm and told him that he

had been on a “dope run” and had been “up for a while.”

        The manager entered the attic and noticed a bag of DVD’s and a DVD player,

which he recognized as the same player that the victim had reported stolen a few days

previously.2 The manager told defendant that he did not like what defendant was doing.

He left defendant’s unit and told both his wife and his supervisor about what he saw in

the attic.



        2At the time, the manager had heard that someone had taken DVD’s and a DVD
player from the victim, and he had previously seen the DVD player in her unit, so he
knew what it looked like.



                                            3
       The manager and his wife then confronted defendant about the items in his attic

and defendant explained that he had not taken them from the victim, but that “somebody

else had given [them] to him.” When the manager asked why he had not returned the

items to the victim and had instead hidden them in his attic, defendant “got really quiet”

and did not respond. The manager’s wife chastised defendant because he had claimed to

be the victim’s friend. At her demand, defendant retrieved the DVD’s and DVD player

from his attic and gave them to the couple.

       Defendant asked the supervisor not to call the police about the incident. He

apologized and told her that he “had been on a binge,” “slamming speed” for about two

weeks and was “trying to get cleaned up.” The supervisor did not oblige defendant’s

request—she called the police.

       Defendant left the apartment complex before the police arrived. He was arrested

later in the day, after he called the police and they tracked him to a different location.

              b. The victim’s testimony

       The victim testified that at the time her property was stolen (late August 2013),

she and her two children lived in an apartment unit in the Barstow complex. About every

other day, she took her children to visit her mother-in-law so that they could eat because

she did not have food at her apartment. When she returned to her unit on September 1,

she noticed that one of her windows “seemed broken into. It was off the hinges . . . [or]

off the rail—and the blinds were kind of messed up.” Inside the unit, drawers and



                                              4
cabinets were open and “things had been moved around.”3 She noticed that several

CD’s, DVD’s, and her DVD player were missing, and she reported this to the police.

Sometime after September 5, she was called into the police station and she identified the

DVD’s and DVD player as her missing property.

              c. Defendant’s statements regarding the stolen property

                      i. Defendant’s statement to the property manager

       The arresting officer testified at trial that he interviewed the manager after arriving

at the scene on September 5. The officer stated that he “remember[ed] [the manager]

saying that [defendant] told him, yeah, I took it.” On direct examination, the manager

testified that he recalled giving a statement to the officer on September 5, but he could

not remember if he told the officer that defendant had admitted taking the property from

the victim’s apartment. He did remember that defendant had asked him not to say

anything about what was in his attic, but he could not recall whether defendant had

admitted to taking the items. He testified that “it happened a while ago, and my memory

is not the best in the world.”




       3  The probation report contains information, not presented to the jury, which
directly conflicts with the victim’s trial testimony that there was evidence of a forced
entry into her apartment. According to the report, the victim told the police that there was
no sign of forced entry at the time of the theft. She reported that she suspected defendant
committed the burglary because he used to be a maintenance employee at the complex
and still had keys to her apartment.



                                              5
                      ii. Defendant’s police interview

         The prosecution played for the jury the recording of defendant’s interview with the

arresting officer on September 5. During the interview, defendant admitted that he had

fled the apartment complex before the police arrived, but explained that he called the

police about an hour after fleeing.

         He told the arresting officer that he had been using speed and “lost track of

everything [he] was doing . . . .” He then recounted the incident when the manager went

into his attic. Before the manager entered the attic, defendant told him, “it’s up there [in

the attic]. I’m not sure if it’s what I think it is.” He asked the manager to give him time

to go talk to a person called “Scrappy” in apartment 5 (the victim’s apartment) to

“straighten it out.” Defendant explained to the officer that Scrappy lived in apartment 5

with the victim and that Scrappy had told him that “they were gone and never coming

back.”

         During her trial testimony, the victim identified “Scrappy” as the father of her

children. She said that he stayed in the apartment complex, but her testimony was

unclear as to whether he lived in apartment 5 with her or in some other unit.

         When the officer asked defendant if he had taken the property from apartment 5,

he replied that he “got it from the guy that got it from apartment 5, knowing he got it

from apartment 5.” Defendant described the man who gave him the property as a

younger, light-skinned Black male who was short, skinny, and had a “big afro.”



                                               6
Defendant did not know this man’s name, but he called him “the kid.” The kid told

defendant that he got the property from apartment 5, that he was friends with the

residents of that apartment, and that they were not coming back. The kid gave him the

property a few days before September 5, at about 3:30 or 4:30 a.m., when defendant was

sitting on the stairs at the complex, “tweaking around.” Defendant told the officer that

the kid comes and goes and, when he does not have a place to stay, “he’ll come by and sit

on the stairs and drink a beer.” When the officer asked defendant whether the kid gave

him anything else, he responded, “I was just interested in DVD’s. It was my tweak of the

night.”

          On cross-examination, the victim testified that her brother, whom she described as

a short, skinny, light-skinned Black male with an afro, used to stay with her at her

apartment, but that he was not spending time at the apartment complex at the time of the

incident because he was in jail.

          2. The Defense’s Case

          During closing argument, defense counsel admitted that defendant had a serious

drug problem and was in possession of the stolen property, but he argued that the

evidence failed to show that defendant burglarized the victim’s apartment.




                                               7
                                        ANALYSIS

       1. Ineffective assistance of counsel

       Defendant argues that his attorney’s failure to object to the officer’s testimony

(that defendant had told the property manager “yeah, I took it”) constitutes ineffective

assistance of counsel because the testimony was inadmissible double hearsay. He

contends that he was prejudiced by counsel’s failure, because had counsel objected, the

jury would have been instructed to disregard what he characterizes as “the primary basis”

for his burglary conviction.

       To succeed on an ineffective assistance of counsel claim, the defendant must

demonstrate that counsel’s performance was deficient (i.e., it fell below an objective

standard of reasonableness) and that the deficiency was prejudicial. (Strickland v.

Washington (1984) 466 U.S. 668, 687-695 (Strickland); People v. Bolin (1998) 18

Cal.4th 297, 333.) To establish prejudice, the defendant must show that there is a

“reasonable probability” that, but for counsel’s error, the result of the proceeding would

have been more favorable to him. (People v. Seaton (2001) 26 Cal.4th 598, 666.)

       The hearsay exception for party admissions applies to evidence of a statement

“offered against the declarant in an action to which he is a party . . . .” (Evid. Code,

§ 1220.) The exception for prior inconsistent statements applies to evidence of a

statement by a witness that is inconsistent with his or her trial testimony “and is offered

in compliance with Section 770.” (Evid. Code, § 1235; see People v. Johnson (1992) 3



                                              8
Cal.4th 1183, 1219 [“A statement by a witness that is inconsistent with his or her trial

testimony is admissible to establish the truth of the matter asserted in the statement under

the conditions set forth in Evidence Code sections 1235 and 770”].) Evidence Code

section 770 provides that an inconsistent statement is admissible if the “witness was so

examined while testifying as to give him an opportunity to explain or deny the statement”

or “the witness has not been excused from giving further testimony in the action.” Thus,

where an officer testifies about a statement a witness had given him that relayed what the

defendant had previously told the witness, and at trial the witness testifies inconsistently

with that statement, both layers of the officer’s testimony are admissible under the party

admission and prior inconsistent statement exceptions, respectively. (People v. Chism

(2014) 58 Cal.4th 1266, 1293-1295.)

       Here, the first level of hearsay (defendant’s statement that he “took” the property)

falls under the party admission exception because it is a statement by defendant that was

offered against him at trial.

       The second layer of hearsay falls under the prior inconsistent statement exception

because, at trial, the property manager (the declarant) testified that defendant denied

taking the property. He further testified that defendant had told him that someone else

had given him the property. Thus, the manager’s statement to the officer that defendant

had told him that he took the property was inconsistent with his trial testimony that

defendant had told him that he did not steal the property from the victim.



                                              9
       Furthermore, the prosecution gave the manager the opportunity to explain or deny

his prior inconsistent statement. (Evid. Code, §§ 770, 1235.) When the prosecutor asked

the manager on direct examination whether defendant had admitted to him that he stole

the property, he responded that he could not remember. He explained his statement by

saying that, “my memory is not the best in the world,” and had an imperfect recollection

of his conversation with defendant and the officer. Additionally, because he was excused

subject to recall, the manager could have been called to further explain his inconsistent

statement after the officer testified.

       We conclude that each layer of the officer’s testimony is admissible, the

defendant’s “yeah, I took it” under the party admission exception, and the officer’s

testimony under the prior inconsistent statement exception. It follows that defendant’s

trial counsel’s omission of an objection to the officer’s testimony was not deficient and

that no ineffective assistance occurred.

       Defendant argues that because the property manager could not recall whether

defendant had made the statement, this layer of hearsay cannot constitute a party

admission. We reject this argument because there is no requirement that a witness must

testify at trial that defendant made the statement in order for the party admission

exception to apply, and defendant cites no authority for this argument. The fact that the

manager could not remember whether defendant told him that he took the property is an

issue of the manager’s credibility, and it is for the jury to decide how much weight to



                                             10
give his statement to the officer. (See People v. Boyer (2006) 38 Cal.4th 412, 480

[“Issues of witness credibility are for the jury”].)

         We also reject defendant’s argument that the statement was not a party admission

because it was too vague and ambiguous to constitute a confession to either of the

charges. Again, there is no requirement that a statement must be an actual confession or

“admission” to the crimes charged for the party admission exception to apply. The

exception applies to any statement by a party when offered against that party. (Evid.

Code, § 1220; see, e.g., Chism, supra, 58 Cal.4th at pp. 1293-1295 [the statement

constituting a party admission was not an admission by defendant that he had committed

the robbery, but rather a statement that he had stopped by the target business before the

robbery and had only seen one clerk].) Defendant’s statement that he “took” the property

falls squarely within the party admission exception.

         Citing People v. Johnson, supra, 3 Cal.4th 1183, defendant argues that the

property manager’s statement cannot constitute a prior inconsistent statement because a

witness’s statement that he or she does not remember an event is not inconsistent with

that witness’s prior statement describing that event. This argument is unavailing because

what the manager could not remember was his statement to the officer, not the event

itself, i.e., his interaction with defendant before and after he found the property in his

attic.




                                              11
       The manager’s ability to remember whether he told the officer that defendant said

he took the property is immaterial to the issue of whether his statement falls under the

prior inconsistent statement exception. The “test for whether a witness’s prior statement

is inconsistent with prior testimony is whether the statement is inconsistent in effect

rather than an express contradiction of terms.” (See Chism, supra, 58 Cal.4th at p. 1295,

citing People v. Cowan (2010) 50 Cal.4th 401, 462 [holding that the witness’s statement

that defendant had been casing the target business before the burglary was inconsistent

with her trial testimony on the issue of when she first heard of the business: at trial she

said she had not heard of it until the morning of the burglary, but her statement to the

officer made it clear she had heard of it before then].) Here, the manager’s trial

testimony was inconsistent as to the issue of what defendant said after being caught with

the victim’s property: in the manager’s statement to the officer, defendant said that he

“took” the property, while according to the manager’s trial testimony, defendant said that

someone had given him the property. (See, e.g., Cowan, supra, 50 Cal.4th at p. 463

[holding that the witness’s prior statement was “inconsistent as to what defendant

purportedly said” because “in her statement to [the officer], [she] said defendant admitted

killing an elderly couple he had found in a bedroom, while in her trial testimony [she]

reported that defendant said only that he would cut [the witness’s daughter’s] throat”].)

Thus, contrary to defendant’s contention, the manager’s statement to the officer was a




                                             12
prior inconsistent statement as to his trial testimony about what defendant said after being

caught with the stolen property in his attic.

       2. Sufficiency of the evidence

       In the alternative to his ineffective assistance of counsel claim, defendant argues

that if the officer’s double hearsay testimony is admissible, it is nevertheless insufficient

evidence to support the burglary conviction.4 Defendant asserts that the testimony is the

only evidence to support the burglary conviction and that it alone is too vague and

ambiguous to constitute substantial evidence. We disagree.

       When considering a challenge to the sufficiency of evidence supporting a

conviction, we must “ ‘review the whole record in the light most favorable to the

judgment to determine whether it contains substantial evidence—i.e., evidence that is

credible and of solid value—from which a rational trier of fact could have found the

defendant guilty beyond a reasonable doubt.’ ” (People v. Jennings (1991) 53 Cal.3d

334, 364.) Even where the evidence of guilt is primarily circumstantial, the standard of

appellate review is the same. (People v. Holt (1997) 15 Cal.4th 619, 668 [“ ‘ “ ‘If the

circumstances reasonably justify the [jury’s] findings, the opinion of the reviewing court

that the circumstances might also be reasonably reconciled with a contrary finding does

not warrant a reversal of the judgment’ ” ’ ”].) To succeed under a substantial evidence

       4 Defendant does not contest the sufficiency of the evidence to support the
receiving stolen property conviction.



                                                13
review, the defendant must establish that no rational jury could have concluded as it

did—it does not matter that “the evidence could reasonably be reconciled with a finding

of innocence or a lesser degree of crime.” (People v. Hill (1998) 17 Cal.4th 800, 849; see

People v. Hovarter (2008) 44 Cal.4th 983, 1015 [“ ‘ “An appellate court must accept

logical inferences that the jury might have drawn from the evidence even if the court

would have concluded otherwise” ’ ”].)

       In the context of a burglary, there is a “long-standing rule of law which allows a

jury to infer guilt of a theft-related crime from the fact a defendant is in possession of

recently stolen property when coupled with slight corroboration by other inculpatory

circumstances which tend to show guilt.” (People v. Barker (2001) 91 Cal.App.4th 1166,

1173, citing People v. McFarland (1962) 58 Cal.2d 748, 754-758, cited with approval in

People v. Grimes (2015) 60 Cal.4th 729, 770.) In People v. McFarland, our Supreme

Court stated that “[p]ossession of recently stolen property is so incriminating that to

warrant conviction there need only be, in addition to possession, slight corroboration in

the form of statements or conduct of the defendant tending to show his guilt.”

(McFarland, supra, 58 Cal.2d at p. 754.) McFarland and another burglary case are

instructive here.

       In McFarland, the defendant was found in possession of property taken during

four recent burglaries and was convicted of all four burglaries. (McFarland, supra, 58

Cal.2d at p. 758.) On appeal, the defendant challenged the sufficiency of the evidence



                                              14
supporting the convictions. (Id. at p. 752.) The court found that the corroborating

evidence of the burglaries was that, when questioned by the police about how he had

acquired the property, defendant “either attempted explanations which the jury was

entitled to reject as false in view of their vagueness and lack of important details, made

statements which could be found to constitute admissions, or remained silent under

circumstances of the type which could be found to permit use of his silence as reflecting

consciousness of guilt.” (Id. at p. 758.) The court held that this evidence, coupled with

defendant’s possession of the stolen property, was sufficient to support his convictions.

(Ibid.)

          In People v. Mendoza (2000) 24 Cal.4th 130, the defendant argued that evidence

of his possession of property taken during two commercial burglaries was insufficient to

support his burglary convictions. (Id. at p. 175.) The court concluded that evidence that

the defendant was seen with the property the day of the burglaries and that he had told the

police he had “ ‘been to Chinatown’ ”—the area where the burglarized businesses were

located—was “adequate corroborating evidence” of his guilt such that, along with the

fact that he was in possession of the recently stolen property upon arrest, a jury could

reasonably infer that he committed the burglaries. (Id. at pp. 175-176.)

          Here, as in McFarland and Mendoza, in addition to defendant’s possession of

recently stolen property, there is adequate corroborating evidence of guilt to support his

burglary conviction. Specifically, the jury heard evidence that he hid the property in his



                                             15
attic, told the property manager he had “F’d up” as the manager was about to enter his

attic, admitted to the manager that he “took” the property, asked the manager’s supervisor

not to call the police, fled from the scene before the police arrived, and told the arresting

officer that he was outside the apartment complex high on speed between 3:30 and 4:30

a.m. on the day he acquired the property.

       Additionally, as was the case in McFarland, on the occasions when defendant was

asked to explain how he had acquired the property and why he had kept it hidden, he

either remained silent or gave an implausible explanation. (McFarland, supra, 58 Cal.2d

at p. 754 [“[i]t has frequently been held that possession of recently stolen property

together with a false explanation will support a conviction”]; see People v. Green (1995)

34 Cal.App.4th 165, 180-181 [“ ‘[w]here recently stolen property is found in the

conscious possession of a defendant who, upon being questioned by the police, gives a

false explanation regarding his possession or remains silent under circumstances

indicating consciousness of guilt, an inference of guilt is permissible’ ”].) Specifically,

the jury could have discredited defendant’s explanation that he had acquired the property

from “the kid” based on the testimony that he remained silent when the manager’s wife

asked him why he had not given the property back to the victim but had instead hidden it

in his attic. The jury could also have discredited his explanation because the victim

testified that her brother, who matched defendant’s description of “the kid,” was in jail

during the time defendant said he gave him the property. The additional corroborating



                                              16
evidence of guilt here is more than sufficient to constitute the slight evidence required to

support a burglary conviction.

       Defendant asserts that the only evidence to support the burglary conviction is his

statement to the manager that he took the property, and he argues that he cannot be

convicted of a crime based on his out-of-court statements alone. Defendant is incorrect

that his statement to the manager is the only evidence to support the burglary conviction.

As just discussed, the jury also heard testimony that defendant hid the property in his

attic, told the manager that he had “F’d up,” tried to convince the manager’s supervisor

not to call the police, fled the scene, and made statements during his police interview

from which a jury could reasonably infer that he had the opportunity to commit the

burglary. Even without the statement that he “took” the property, there was enough

corroborating evidence (in addition to his possession of the property) for the jury to

reasonably infer that defendant committed the burglary.

       Citing cases that say evidence must raise more than a “suspicion” of guilt to

constitute substantial evidence, defendant argues that the statement that he “took” the

property was too vague and ambiguous to support his burglary conviction, especially in

light of the fact that (with the exception of his possession of the property) there was no

direct evidence to link him to the burglary, such as eyewitnesses, fingerprints, or DNA.

Defendant asserts that the statement “omits critical facts” about where or from whom he

“took” the property and that it could instead corroborate his explanation that “the kid”



                                             17
gave it to him. Defendant’s argument misunderstands our task in a substantial evidence

review.

       First, a conviction can be based primarily on circumstantial evidence, so long as

that evidence constitutes substantial evidence. (Holt, supra, 15 Cal.4th at p. 668.) And,

as we concluded ante, the circumstantial evidence of guilt here constitutes substantial

evidence.

       Second, it does not matter that defendant’s ambiguous statement that he “took” the

property supports a reasonable inference that he took it from “the kid,” because the

statement also supports a reasonable inference that he took it from the victim’s

apartment. When presented with two reasonable inferences that can be drawn from the

evidence, we must uphold the inference that supports the conviction. “ ‘Although it is the

duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible

of two interpretations, one of which suggests guilt and the other innocence [citations], it

is the jury, not the appellate court which must be convinced of the defendant’s guilt

beyond a reasonable doubt. “ ‘If the circumstances reasonably justify the trier of fact’s

findings, the opinion of the reviewing court that the circumstances might also be

reasonably reconciled with a contrary finding does not warrant a reversal of the

judgment.’ ” ’ ” (Holt, supra, 15 Cal.4th at p. 668.) In other words, we assume that the

jury assessed defendant’s out-of-court statement and did not believe that he was referring

to his interaction with “the kid” when he said he “took” the property. (People v. Dowl



                                             18
(2013) 57 Cal.4th 1079, 1092 [“To be sure, defendant offered [exculpatory] explanations

. . . but the jurors did not have to believe them”].) Defendant’s statement need not clearly

and unambiguously point to his guilt in order for the jury to consider it as a factor in

assessing whether he committed burglary. We thus conclude that there was substantial

evidence supporting the verdict, which evidence includes but is not limited to, his

statement to the manger that he “took” the property.

       3. The trial court’s refusal to strike defendant’s prior strike convictions

       After the jury convicted defendant of first degree burglary and receiving stolen

property, he waived his right to a jury trial on the alleged prior convictions. He admitted

two prior strike convictions—a first degree burglary conviction from 1995 and a criminal

threats conviction from 2012. He also admitted four prior prison term allegations.

Before sentencing, defendant moved the court to strike one or more of his prior strike

convictions under section 1385, pursuant to People v. Superior Court (Romero) (1996) 13

Cal.4th 497.

       After hearing oral argument and discussing the briefs, probation report, and

defendant’s background and criminal history with counsel, the court stated its grounds for

denying defendant’s motion. It explained that while defense counsel’s briefs were

“compassionate and had a point,” it nevertheless found defendant’s past and current

offenses were such that he was precisely the type of serious felon that the California




                                             19
voters had in mind when enacting the three strikes law.5 The court found that defendant

“[took] advantage of a position of trust or confidence to commit the crime. . . . these were

neighbors . . . the defendant probably knew the victim was not at home, however, did not

know when the victim would return with [her children].” It also found that the property

loss to the victim was significant because she “had nothing, not even food to eat.” Lastly,

the court found that, according to the probation report, defendant had not shown any

remorse for his crime.

       Defendant contends that the trial court erred when it refused to strike one or both

of his prior strike convictions under section 1385 because his current and prior felony

convictions are not violent and are related to his drug addiction.

       A trial court has the discretion to dismiss a prior strike conviction under section

1385 if the dismissal is in the furtherance of justice. (§ 1385, subd. (a); Romero, supra,

13 Cal.4th at pp. 529-530.) We review rulings on section 1385 motions for abuse of

discretion and will uphold the decision unless it “ ‘falls outside the bounds of reason.’ ”

(People v. Williams (1998) 17 Cal.4th 148, 152, 162.) Our review is extremely

deferential: “ ‘[w]here the record demonstrates that the trial court balanced the relevant



       5  Specifically, the court stated: “The DA highlighted the exact area that I’m
concerned about. When we look at the three strikes law, the voters just took another look
at the three strikes law. They modified it, and this is a burglary, and it falls right in with
what they’ve just considered: That if a person commits another—a third strike, a serious
or violent felony, that they fall within the three strikes law.”



                                             20
facts and reached an impartial decision in conformity with the spirit of the law,’ ” we

must affirm the trial court’s ruling, “ ‘even if we might have ruled differently in the first

instance.’ ” (People v. Carmony (2004) 33 Cal.4th 367, 378.)

       Here, the trial court considered all of the facts and circumstances that would

support dismissing one or both of defendant’s prior strike convictions, but was unable to

justify doing so based on defendant’s current and prior offenses. After reading

defendant’s motion, the court found that there was not enough information in the motion

to warrant its use of discretion to strike a prior conviction under section 1385. Instead of

denying the motion on that ground, the court told defense counsel that he had “given a

passionate response on behalf of [his] client” and asked counsel to prepare a

supplemental motion that contained additional information on defendant’s criminal

history, such as whether his criminal involvement increased or decreased over time and

which offenses were drug related.

       At the sentencing hearing, the court stated that it had read the probation report and

the parties’ briefs (which included defendant’s supplemental motion addressing the

court’s concerns) and had listened to the parties’ arguments. The probation report

detailed defendant’s criminal history, which consists of 15 separate incidents, some of

which involved more than one offense. In addition to his current burglary conviction,

defendant was convicted of five previous felonies, some of which involved dangerous




                                              21
weapons, threats of violence, and burglary.6 He was also convicted of 10 misdemeanors,

most of which involved narcotics and some of which involved resisting and obstructing a

peace officer (§ 148, subd. (a)) and infliction of corporal injury (§ 273.5).

       Before giving its ruling, the court stated, “Because I heard the trial in this matter,

and I heard the facts, I really wanted to give due consideration to whether or not I’ll

exercise my discretion regarding striking a strike.” The court then stated its findings,

detailed ante, which are thorough and indicate that the court took time to fully consider

defendant’s criminal history and whether he fits within the spirit of the three strikes law.

We therefore hold that the court reached a reasoned and impartial decision and did not

abuse its discretion in refusing to dismiss any of defendant’s prior strike convictions.

       Defendant’s argument that his crimes are nonviolent and related to his drug

addiction does not change our conclusion. The three strikes law does not focus solely on

violent felonies, it also applies to serious felonies, which defendant has a history of

committing. (See Romero, supra, 13 Cal.4th at p. 505 [“In summary, [the three strikes

law has] this effect: When a defendant is convicted of a felony, and it is pleaded and

proved that he has committed one or more prior felonies defined as ‘violent’ or ‘serious,’

sentencing proceeds under the Three Strikes law ”] italics added.)

       6 Defendant’s five previous felony convictions are: burglary conviction in 1995
(§§ 459, 460); threatening a witness conviction in 1997 (§ 140); possession/manufacture
of dangerous weapon conviction in 2006 (§ 12020, subd. (a)(1)); criminal threats
conviction in 2012 (§ 422); and attempted burglary conviction in 2012 (§§ 666, 459).



                                              22
       Moreover, the primary purpose of the three strikes law is to ensure longer

sentences for recidivists. (Romero, supra, 13 Cal.4th at p. 528 [“Plainly the Three Strikes

initiative, as well as the legislative act embodying its terms, was intended to restrict

courts’ discretion in sentencing repeat offenders”].) Assuming that defendant’s crimes

are the result of his drug addiction, his criminal history indicates that he is likely to

continue to reoffend as a result of, or to support, his addiction. (See People v. Gaston

(1999) 74 Cal.App.4th 310, 319-322 [reversing trial court’s dismissal of a prior strike

conviction, stating that “[a]lthough ‘drug use appears to be an underlying factor in

[defendant’s] criminal behavior, and in fact may be the root cause thereof,’ the record is

barren of any attempts by [defendant] to ‘root out’ such destructive drug dependency”

and that his criminal history demonstrated he had “failed to learn anything from the

experience”].) The trial court reviewed defendant’s history of repeated criminal activity

and drug addiction and found him to be within the spirit of the three strikes law. This

decision lay well within the bounds of its discretion under section 1385, and we uphold it.

       4. Cruel and unusual punishment

       Defendant contends that the sentence of 25 years to life for the burglary conviction

constitutes cruel and unusual punishment in violation of the federal and state

constitutions.

       A punishment violates the federal Constitution if it is grossly disproportionate to

the severity of the crime. (U.S. Const., 8th Amend.; Graham v. Florida (2010) 560 U.S.



                                              23
48, 59-60.) A punishment violates the California Constitution if “ ‘it is so

disproportionate to the crime for which it is inflicted that it shocks the conscience and

offends fundamental notions of human dignity.’ ” (People v. Dillon (1983) 34 Cal.3d

441, 478, abrogated by statute on a different ground as explained in People v. Chun

(2009) 45 Cal.4th 1172, 1186.) In determining whether a sentence is cruel and unusual,

California courts: (1) review the nature of the offense and the offender; (2) measure the

punishment at issue against punishments prescribed for more serious crimes in the

jurisdiction; and (3) measure the punishment at issue against punishments prescribed for

the same crime in other jurisdictions. (In re Lynch (1972) 8 Cal.3d 410, 425-427,

superseded by statute on another ground as stated in People v. Caddick (1984) 160

Cal.App.3d 46, 51.) A defendant “must overcome a ‘considerable burden’ to show the

sentence is disproportionate to his level of culpability.” (People v. Em (2009) 171

Cal.App.4th 964, 972, citing People v. Wingo (1975) 14 Cal.3d 169, 174.) Consequently,

“ ‘[f]indings of disproportionality have occurred with exquisite rarity in the case law.’ ”

(Em, at p. 972.)

       Regarding the first step, defendant points out that his current offense “did not

involve actual violence or even a credible threat of violence.” This argument ignores the

fact that defendant’s current offense was a serious felony7 and that three strikes law

       7  Defendant admits that his current offense and prior strike convictions are for
serious felonies.



                                             24
applies to serious felonies. (Romero, supra, 13 Cal.4th at p. 505.) Defendant was the

victim’s friend and neighbor, and by committing the current offense he violated a

position of trust. The seriousness of this offense is compounded by the fact that he did

not know when the victim and her children would return to the apartment—they

frequently traveled back and forth between the apartment and her mother-in-law’s

residence—and by the fact that the victim was so poor that she did not even have enough

money to buy food.

       Defendant’s sentence is not based solely on his current offense, but also on his

past offenses and his recidivism. Defendant’s criminal record contains prior felony

convictions for burglary, attempted burglary, threatening a witness, possession of a

dangerous weapon, and criminal threats, spanning from 1995 to the present. It also

contains numerous convictions involving narcotics, and he admits that he has had a

serious and long-standing drug addiction. Defendant’s criminal history compels the

conclusion that he is a repeat offender who is likely to continue to offend because he has

proved by his criminal history that he is “ ‘unable to bring his conduct within the social

norms prescribed by the criminal law of the State.’ ” (Ewing v. California (2003) 538

U.S. 11, 21 [United States Supreme Court holding that California’s three strikes law is a

constitutional punishment for a repeat offender, even when the defendant’s offenses are

only theft-related].)




                                             25
       The fact that the current offense involved an item of little monetary value does not

affect our conclusion. As the court found, defendant violated a position of trust by

stealing from a neighbor who did not have enough money to provide food for her family

and who could have returned home during the commission of the burglary.

       The second step in the cruel and unusual punishment analysis, measuring the

punishment at issue against punishments prescribed for more serious crimes, is

inapplicable to sentencing under the three strikes law. (People v. Cline (1998) 60

Cal.App.4th 1327, 1338.) This is because it would be “ ‘illogical’ ” to measure the

punishment for defendant’s offense, which includes defendant’s recidivism, against the

punishment of those who have committed more serious crimes but are not career

criminals and are not being sentenced under a recidivist statute. (Ibid.)

       Regarding the third step, a comparison of California’s three strikes law with

recidivist statutes in other states reveals that many other states impose life imprisonment

on habitual criminals, and that some states impose life imprisonment without possibility

of parole. (People v. Cline, supra, 60 Cal.App.4th at p. 1338.) Thus, California’s

punishment of repeat offenders is similar to that of other jurisdictions.

       Based on the above, we conclude that the 25-year-to-life sentence imposed in this

case is not cruel and unusual punishment.




                                             26
         5. The four one-year enhancements

         There is some ambiguity in the record with regard to the outcome of the

enhancements for defendant’s four prior prison terms under section 667.5, subdivision

(b). (See § 667.5, subd. (b) [requiring court to “impose a one-year term for each prior

separate prison term or county jail term” where the current offense is “any felony for

which a prison sentence . . . under subdivision (h) of Section 1170 is imposed”].) Before

the court’s ruling on defendant’s 1385 motion, the prosecutor informed the court that “25

to life was sufficient” punishment for defendant and that, if the court refused to strike

defendant’s prior strike convictions, he would ask the court to strike the four prior prison

terms.

         During the sentencing portion of the hearing, the court imposed a third-strike, 25-

year-to-life term for count 1 and imposed and stayed a six-year term for count 2. With

regard to the enhancements, the court stated that it would “stay the 677.5(b) priors.”

However, when the court summarized defendant’s sentence, it stated, “So the defendant

is sentenced to the State Prison for a total of ten years with six years stayed, plus 25 years

to life.” The minute order from the sentencing hearing states that the four prison priors

were stricken,8 and the abstract of judgment contains no reference to them or to four one-



         8The minute order dated February 21, 2014, states: “Court orders Prior # 01 02
03 04 stricken.”




                                              27
year enhancements. Our issue on appeal is to determine what the trial court meant when

it referred to a 10-year sentence, six years of which are to be stayed, and to determine the

court’s ruling on the enhancements.

       Both parties agree that the court’s reference to a 10-year sentence was an

inadvertent misstatement. In his opening brief, defendant argues that the court’s

intention, as reflected in its statement immediately preceding its reference to the 10-year

sentence, was to stay the four one-year enhancements. The People agree that the court

intended to stay the enhancements. In his reply brief, defendant argues for the first time

that the court intended to strike the enhancements and identifies, also for the first time,

the portion of the minute order that states, “Court orders Prior # 01 02 03 04 stricken.” 9

Defendant asks that we remand this case to the trial court “to properly determine whether

the court intended to strike or stay the sentences on the prior prison terms.” Where a

defendant raises an argument for the first time on reply, the People are deprived of the

opportunity to respond (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764-765);

however, a response from the People is not necessary here because defendant’s argument

does not change our conclusion that the court intended to stay, not strike, the

enhancements.



       9 Defendant makes no mention of this portion of the minute order striking the four
prison priors in his opening brief; rather, he argues that the minute order is silent on the
issue.



                                             28
       “In a criminal case, it is the oral pronouncement of sentence that constitutes the

judgment.” (People v. Scott (2012) 203 Cal.App.4th 1303, 1324, citing People v. Mesa

(1975) 14 Cal.3d 466, 471.) Thus, where there is a discrepancy between the transcript of

the sentencing hearing and the minute order or the abstract of judgment, “[t]he record of

the oral pronouncement of the court controls.” (People v. Farell (2002) 28 Cal.4th 381,

384, fn. 2.) Such discrepancies in minute orders or abstracts of judgment “are subject to

correction at any time, and should be corrected by a reviewing court when detected on

appeal.” (Scott, at p. 1324, citing People v. Mitchell (2001) 26 Cal.4th 181, 188.)

       Here, the court made its intention regarding the enhancements clear when it stated,

“I will stay the 677.5(b) priors.” Thus, the reference to a 10-year sentence that came

immediately after this statement was either an inadvertent mistake or a change in the

court’s ruling. Specifically, “ten years” would constitute a change in the court’s ruling to

stay the enhancements because the ten years presumably consists of the six-year term

(which the court explicitly states is stayed) plus the four one-year enhancements (which

the court does not mention staying). It would be unlikely for the court to change its

ruling so suddenly—to reinstate enhancements it had just ruled it was staying—without

commenting on its reason for the change. We find it much more likely (as do both

parties) that the court simply misspoke when it stated that defendant was sentenced to

state prison “for a total of ten years with six years stayed.”




                                              29
       Based on the court’s clear statement that it intended to “stay the 677.5(b) priors,”

we conclude that the court’s oral pronouncement was to stay the four one-year

enhancements. Because a court’s oral pronouncement controls over the contents of a

minute order, we reject defendant’s argument that the minute order indicates that the

court intended to strike the enhancements. (See, e.g., Scott, supra, 203 Cal.App.4th at

p. 1324.) The minute order and abstract of judgment should therefore be modified to

reflect that the court stayed the enhancements.

                                       DISPOSITION

       The judgment is affirmed. The trial court is directed to modify the minute order

dated February 21, 2014, and the abstract of judgment to reflect the imposition and stay

of the four one-year enhancements for defendant’s four prior prison terms under section

667.5, subdivision (b). The trial court is directed to deliver a certified copy of the

modified minute order and abstract of judgment to the Department of Corrections and

Rehabilitation.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                                 RAMIREZ
                                                                                         P. J.
We concur:

HOLLENHORST
                           J.

CODRINGTON
                           J.

                                              30
