Filed 12/30/14 P. v. Sudduth CA2/7
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 SEVEN


THE PEOPLE,                                                          B251321

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA380443)
         v.

LARRY SUDDUTH,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County, Craig E.
Veals, Judge. As modified, affirmed.
         William L. Heyman, under appointment by the Court of Appeal, for Defendant
and Appellant.
         Kamala D. Harris, Attorney General, Lance E. Winters, Senior Assistant Attorney
General, Linda C. Johnson and Ana R. Duarte, Deputy Attorneys General, for Plaintiff
and Respondent.
                                        _________________________
       Larry Sudduth appeals from the judgment entered following his conviction by a
jury of shooting at an inhabited dwelling and possession of a firearm by a felon, as well
as true findings on related firearm-use allegations. We affirm.
                 FACTUAL AND PROCEDURAL BACKGROUND
       1. The Shooting
       On January 17, 2011 Tinisha Nelson was at her apartment in South Los Angeles
with Chaka Holland, Holland’s boyfriend and Sudduth. Nelson, Holland and Sudduth
had known each other for nearly 20 years and frequently saw one another. They began
drinking and smoking marijuana in the morning and continued through the early
afternoon. Holland’s boyfriend left the apartment around noon. At some time in the
early afternoon the building manager called to ask Sudduth to move his car, a white
Lexus sedan parked next to Nelson’s apartment, because it was blocking the apartment
driveway. Sudduth moved the car as requested, then returned to Nelson’s apartment.
       Nelson, Holland and Sudduth continued to drink, and Sudduth fell asleep on the
couch for approximately 30 to 40 minutes. Nelson and Holland decided to play a trick on
Sudduth and painted his fingernails and applied lipstick to his lips while he slept. When
he awoke, they were laughing. He saw his nails, became very upset and cursed the two
women. As he moved toward Nelson to spit at her, Nelson’s 17-year-old son, Keontay
Lee, who had been upstairs but came down when he heard the argument, intervened and
told everyone to leave. Sudduth cursed them again and threatened to come back with
“something for you all.”
       Nelson did not see Sudduth go to his car but heard what she believed to be the
engine revving. She continued to drink and talk with Holland. Neither noticed if
Sudduth drove away.
       A short time later Nelson was standing in the entry way between the kitchen and
the front door to the apartment1 when she heard gunshots. Nelson panicked and raised
her hands in the air as she moved away. She was shot in the left hand; and, when she


1
       The wooden front door was open, but the metal security door was closed.

                                             2
ducked toward a couch, another bullet ricocheted off the coffee table and struck her left
leg. Holland, who had been standing in the kitchen looking over the driveway, ran to the
wooden door and slammed it shut. She was not injured.
       After the shots stopped, Holland asked Nelson if she was hurt and told her
Sudduth was the shooter. Holland and Lee (who ran downstairs when he heard the shots)
each called the emergency hotline. Los Angeles Police Officers Alberto Franco and
Ruben Cardenas responded to the calls. While Officer Cardenas stayed with Nelson,
Officer Franco interviewed Holland. Holland told the officer she and Nelson had been
partying all day with Sudduth, who had become angry when he awoke after a nap to
discover they had painted his fingernails. She also told Franco she had seen Sudduth
shooting at the house from inside his car, which was parked in the driveway.
       After completing their investigation Officers Franco and Cardenas drove to
Sudduth’s home, located around the corner. Sudduth was not there. The next day
another car belonging to Sudduth was found outside his home. Sudduth’s nickname
“Sleep” had been spray-painted on the car and then crossed out.
       Two days after the shooting Holland was interviewed by Los Angeles Police
Detective Brian Hun. Holland repeated what she had told Franco—she had seen Sudduth
shooting into the apartment. She also told Hun Sudduth was associated with the Carver
Park Compton Crips gang.
       In addition to her injured hand, in the shooting Nelson suffered a broken hip,
which was repaired surgically through insertion of a rod in her leg. She had several
complications and permanent damage as a result of her injury.
       2. The Information and Pretrial Proceedings
       Sudduth was charged by information with one count of shooting at an inhabited
dwelling (Pen. Code, § 246)2 and one count of possession of a firearm by a felon
(§ 12021, subd. (a)(1)). As to count 1 the information alleged Sudduth had personally
inflicted great bodily injury in the commission of the offense (§ 12022.7, subd. (a)). As


2
       Statutory references are to the Penal Code unless otherwise indicated.

                                             3
to both counts the information alleged Sudduth had suffered a prior conviction for first
degree burglary, a serious or violent felony within the meaning of the three strikes law
(§§ 667, subds. (b)-(i), 1170.2, subds. (a)-(d)) and a serious felony within the meaning of
section 667, subdivision (a)(1).
       Sudduth sought and received permission to represent himself. He pleaded not
guilty and filed several motions on his own behalf, including a motion to discover the
disciplinary records of the officers who arrested him and investigated the case based on
his assertion he had never had weapons in his home and believed the officers had planted
them.3 (See Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).) The trial court
reviewed the personnel records identified by the Department and found none that fell
within the scope of Sudduth’s request.
       Shortly before trial Sudduth rejected the People’s offer of a plea agreement
contemplating a state prison term of nine years. After negotiations broke down and the
trial date was imminent, Sudduth requested to be relieved of his pro per status. The court
appointed standby counsel as counsel of record and denied the defense’s request for a
continuance. On the first day of trial the People sought to amend the information to add a
firearm-use allegation to count 1 pursuant to section 12022.53, subdivisions (b), (c) and
(d). The court granted the amendment over Sudduth’s objection.
       3. The Trial
       The People’s case was presented through the testimony of Nelson, Holland and
Lee, Officers Franco and Cardenas, and Detective Hun. Nelson described the events
preceding the shooting and Sudduth’s behavior but was unable to identify Sudduth as the
shooter. She stated that Holland had identified Sudduth immediately after the shooting.
Holland, however, testified she had not seen the shooter and recanted all of her earlier
statements identifying Sudduth as the shooter. To cast doubt on her retraction, the People
were permitted to introduce her prior statement to Hun about Sudduth’s gang
membership as evidence she was afraid to testify truthfully. Confronted with the
3
      Two firearms, neither of which was used in the shooting, were found in a drawer
in Sudduth’s home. Evidence of these weapons was not admitted at trial.

                                             4
statement, Holland denied she was afraid to testify and claimed Hun had misunderstood
her. According to Holland, she had been referring to the fact that many people in the
neighborhood knew and associated with members of the Carver Park Compton Crips but
she had no personal knowledge that Sudduth was a gang member. Nelson and Holland
each admitted they had consumed sizable quantities of vodka and smoked several
marijuana cigarettes before the shooting. Franco testified he could tell Holland had been
drinking but she did not appear to be impaired while he was speaking with her after the
shooting. On cross-examination Nelson, Holland and Lee were also impeached with
evidence each had suffered several prior convictions.
      Two new pieces of evidence emerged at trial. Asked for the first time if she had
spoken with Sudduth since the shooting, Nelson testified he had called her a month after
the shooting to apologize. When she recognized his voice, she hung up the phone
because she was angry and would not forgive him for shooting her. In addition, Lee
testified he had seen a white sedan backing out of the driveway immediately after the
shooting, something he had failed to disclose during the investigation. However, he did
not know who owned the car.
      Sudduth did not testify at trial. Gary Cooper, an investigator for the defense,
testified he had interviewed Holland several months before trial and she had denied she
had seen the shooter. A recording of that conversation was played for the jury. Cooper
also visited Nelson’s apartment on two occasions to inspect evidence of the shooting. On
the second visit he was accompanied by Anthony Paul, a firearms examiner who also
testified for the defense. Cooper and Paul measured the bullet holes in the security door
and matched one of them to a bullet hole in the interior wall of the apartment. Based on
these measurements, Paul opined it was not possible that the shots could have been fired
by someone sitting in a vehicle parked in the driveway.
      4. The Verdicts and Sentencing
      After deliberating for less than three hours, the jury convicted Sudduth on both
charges and found the section 12022.7, subdivision (a), and section 12022.53,
subdivision (d), enhancement allegations true. In a bifurcated proceeding the court found

                                            5
true the allegations Sudduth had suffered a prior serious conviction within the meaning of
the three strikes law and section 667, subdivision (a).
         Sudduth represented himself at sentencing. After the court declined to dismiss the
prior strike conviction, Sudduth was sentenced to an aggregate state prison term of
40 years to life: The five-year middle term for shooting at an inhabited dwelling doubled
to 10 years for the prior strike conviction, plus five years for the serious felony
enhancement and 25 years to life for personal use of a firearm causing great bodily
injury. The term for the great bodily injury enhancement was stayed pursuant to
section 654. The sentence on count 2, based on the middle term of two years for
possession of a firearm by a felon, was imposed to run concurrently with the sentence on
count 1.
                                      CONTENTIONS
         Sudduth contends the trial court abused its discretion and violated his
constitutional rights by permitting the amendment of the information on the first day of
trial to include the section 12022.53 firearm-use allegations and in admitting evidence of
his possible gang affiliation. He also contends there was insufficient evidence to support
the jury’s findings he was the shooter and was in possession of a firearm. He also asks us
to review the sealed record of the Pitchess hearing to determine whether proper
procedures were followed and whether the record is sufficient. Finally, Sudduth contends
the court abused its discretion in failing to dismiss his prior strike conviction and
challenges his sentence as cruel and unusual under the federal and state constitutions.
         The People seek correction of the judgment to modify the fees imposed by the trial
court.
                                        DISCUSSION
         1. The Trial Court Did Not Abuse Its Discretion in Permitting the Amendment of
            the Information To Add Firearm-use Allegations Under Section 12022.53
         The trial court may permit amendment of an information at any time during the
proceedings, even after the evidence has closed, provided the amendment is supported by
evidence at the preliminary hearing and does not prejudice the defendant’s substantial


                                               6
rights. (§ 1009;4 People v. Birks (1998) 19 Cal.4th 108, 129; People v. Arevalo-Iraheta
(2011) 193 Cal.App.4th 1574, 1581; see also People v. Graff (2009) 170 Cal.App.4th
345, 367 [“‘[A] preliminary hearing transcript affording notice of the time, place and
circumstances of charged offenses “‘is the touchstone of due process notice to a
defendant’”’”].) A trial court’s decision to permit the amendment of an information will
not be reversed absent a showing of a clear abuse of discretion. (People v. Bolden (1996)
44 Cal.App.4th 707, 716; People v. Flowers (1971) 14 Cal.App.3d 1017, 1020.)
       Section 12022.53 authorizes “‘“substantially longer prison sentences” for “felons
who use firearms in the commission of their crimes.”’” (People v. Palacios (2007)
41 Cal.4th 720, 725.) “Subdivision (b) provides a 10-year enhancement for using a
firearm; subdivision (c) a 20-year enhancement for intentionally firing the gun; and
subdivision (d) a 25-years-to-life enhancement for intentional discharge causing great
bodily injury or death to someone other than an accomplice.” (Ibid.)5 The People sought

4
        Section 1009 provides, “The court in which an action is pending may order or
permit an amendment of an indictment, accusation or information, or the filing of an
amended complaint, for any defect or insufficiency, at any stage of the proceedings. . . .
The defendant shall be required to plead to such amendment or amended pleading
forthwith, . . . and the trial or other proceeding shall continue as if the pleading had been
originally filed as amended, unless the substantial rights of the defendant would be
prejudiced thereby, in which event a reasonable postponement, not longer than the ends
of justice require, may be granted. An indictment or accusation cannot be amended so as
to change the offense charged, nor an information so as to charge an offense not shown
by the evidence taken at the preliminary examination. A complaint cannot be amended to
charge an offense not attempted to be charged by the original complaint, except that
separate counts may be added which might properly have been joined in the original
complaint.”
5
       Section 12022.53, subdivisions (b), (c) and (d), provide: “(b) Notwithstanding any
other provision of law, any person who, in the commission of a felony specified in
subdivision (a), personally uses a firearm, shall be punished by an additional and
consecutive term of imprisonment in the state prison for 10 years. The firearm need not
be operable or loaded for this enhancement to apply.
       “(c) Notwithstanding any other provision of law, any person who, in the
commission of a felony specified in subdivision (a), personally and intentionally
discharges a firearm, shall be punished by an additional and consecutive term of
imprisonment in the state prison for 20 years.”

                                             7
to amend the information to add to count 1 the allegation that Sudduth had personally
used, discharged and/or caused great bodily injury to Nelson within the meaning of
section 12022.53, subdivisions (b), (c) and (d). Sudduth opposed the amendment,
asserting he would have accepted the People’s proffered plea if he had understood his
sentence could include a life term.
       Notwithstanding Sudduth’s claim, permitting this amendment fell well within the
court’s discretion. The amendment was proposed on the first day of trial before a jury
was impaneled. The amendment had no effect on the nature of the criminal offenses and
enhancements to be proved at trial or on Sudduth’s defense of misidentification. That
such an additional enhancement allegation could be made was clearly foreseeable from
the evidence adduced at the preliminary hearing and the charges contained in the
information: From the outset the People intended to prove Sudduth had personally
discharged a firearm into an inhabited dwelling in a manner that caused Nelson to suffer
great bodily injury; adding the section 12022.53 firearm-use allegations did not expand
that in any way. Simply put, Sudduth, who had elected to represent himself at the
preliminary hearing and during plea negotiations, apparently failed to understand the
significance of the People’s evidence or his overall exposure based on what could be
proved at trial.
       Nor did the amendment violate Sudduth’s due process rights. “Due process of law
requires that an accused be advised of the charges against him [or her] so that he [or she]
has a reasonable opportunity to prepare and present [a] defense and not be taken by
surprise by evidence offered at . . . trial.” (People v. Jones (1990) 51 Cal.3d 294, 317;
see People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1201; People v. Fernandez (2013)
216 Cal.App.4th 540, 554.) Although Sudduth claims he was “actually” surprised by the

       “(d) Notwithstanding any other provision of law, any person who, in the
commission of a felony specified in subdivision (a), Section 246, or subdivision (c) or (d)
of Section 26100, personally and intentionally discharges a firearm and proximately
causes great bodily injury, as defined in Section 12022.7, or death, to any person other
than an accomplice, shall be punished by an additional and consecutive term of
imprisonment in the state prison for 25 years to life.”

                                             8
amendment, as we have explained, the preliminary hearing gave him notice of the facts to
be relied upon by the People in support of the charges as well as the subsequent
amendment. The amendment came at the beginning of trial, when the defense had time
to make any adjustments in the defense strategy, especially given the straightforward and
relatively simple nature of the case. The amendment did not in any way prejudice
Sudduth’s substantial rights. (See Fernandez, at p. 554 [“a defendant’s due process rights
are not prejudiced by amendment of the information . . . so long as defendant’s
substantial rights are not prejudiced”].)
       2. The Admission of Gang Evidence, Even if Erroneous, Was Harmless
       “A trial court’s admission of evidence, including gang testimony, is reviewed for
abuse of discretion. [Citations.] The trial court’s ruling will not be disturbed in the
absence of a showing it exercised its discretion in an arbitrary, capricious, or patently
absurd manner that resulted in a miscarriage of justice.” (People v. Avitia (2005)
127 Cal.App.4th 185, 193; accord, People v. Memory (2010) 182 Cal.App.4th 835, 858;
see People v. Williams (1997) 16 Cal.4th 153, 197 [“a trial court’s decision to admit or
not admit evidence, whether made in limine or following a hearing pursuant to [Evid.
Code, § 402] is reviewed only for abuse of discretion”].) Even when an abuse of
discretion is found, “[t]he erroneous admission of gang or other evidence requires
reversal only if it is reasonably probable that appellant would have obtained a more
favorable result had the evidence been excluded.” (Avitia, at p. 194.) It is the
defendant’s burden on appeal to establish an abuse of discretion and prejudice. (People
v. Garcia (2008) 168 Cal.App.4th 261, 275.)
       To be sure, the admission of gang evidence always carries a risk of prejudice.
“When offered by the prosecution, we have condemned the introduction of evidence of
gang membership if only tangentially relevant, given its highly inflammatory impact.”
(People v. Cox (1991) 53 Cal.3d 618, 660, disapproved on another ground in People v.
Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) Nonetheless, gang evidence, including
evidence about a defendant’s gang membership, is generally admissible if it is relevant to
a material issue in the case other than criminal disposition, is not more prejudicial than

                                              9
probative, and is not cumulative. (See People v. Samaniego (2009) 172 Cal.App.4th
1148, 1167; People v. Albarran (2007) 149 Cal.App.4th 214, 223 (Albarran).) Gang
evidence, however, is not admissible if introduced “only to ‘show a defendant’s criminal
disposition or bad character as a means of creating an inference the defendant committed
the charged offense. [Citations.]’ In cases not involving a section 186.22 gang
enhancement, it has been recognized that ‘evidence of gang membership is potentially
prejudicial and should not be admitted if its probative value is minimal. [Citation.]’
[Citations.] Even if gang evidence is relevant, it may have a highly inflammatory impact
on the jury. Thus, ‘trial courts should carefully scrutinize such evidence before admitting
it.’” (People v. Avitia, supra, 127 Cal.App.4th at pp. 192-193; accord, Albarran, at
pp. 224-225.)
       Evidence of gang membership may be admitted, as it was here, to prove bias or
otherwise challenge the credibility of a witness’s testimony, provided it is not cumulative
to other properly admitted and less inflammatory evidence. (See People v. Adams (2014)
60 Cal.4th 541, 570 [“‘“Evidence that a witness is afraid to testify or fears retaliation for
testifying is relevant to the credibility of that witness and is therefore admissible.
[Citations.] An explanation of the basis for the witness’s fear is likewise relevant to [his]
credibility and is well within the discretion of the trial court.”’”]; People v. Cardenas
(1982) 31 Cal.3d 897, 904-905 [finding prejudicial error when prosecutor allowed to
impeach defense witnesses for bias by showing they belonged to same gang; bias had
been amply established by other evidence]; People v. Maestas (1993) 20 Cal.App.4th
1482, 1497-1498 [evidence of defendants’ common gang membership cumulative when
other evidence established close personal relationship].) “‘It is not necessary to show
threats against the witness were made by the defendant personally, or the witness’s fear
of retaliation is directly linked to the defendant for the evidence to be admissible.’”
(People v. Sanchez (1997) 58 Cal.App.4th 1435, 1449-1450; accord, Adams, at p. 37.)
       After granting Sudduth’s motion in limine to exclude any reference to his possible
gang membership, the People sought to undermine Holland’s refusal at trial to identify
Sudduth as the shooter with her statement to Detective Hun that Sudduth was a member

                                              10
of the Carver Park Compton Crips to explain her reluctance to repeat her previous
identification of him. The court allowed the testimony on the theory Holland was afraid
of retribution. Sudduth’s counsel objected vigorously to this ruling, observing that
Sudduth at age 51 was unlikely to be an active gang member and that the wholly
uncorroborated statement was unduly prejudicial.
       While the basis for the court’s ruling was not without support in case law, as
discussed, this shooting had no gang overtones. Instead, the attack was rooted in
wounded (and drunken) male pride. Sudduth’s attempt to apologize to Nelson
demonstrates remorse for his actions rather than an attempt to intimidate her. No one
asked Holland whether she similarly had resumed her contact with Sudduth, and there
was no evidence she was afraid of him. To the contrary, they had been friends for nearly
20 years. Under these circumstances it is at least equally likely Holland decided she did
not want to testify against a friend or to help the prosecution. Even assuming she was
afraid of Sudduth, as defense counsel pointed out, her fear was more likely engendered
by his extreme reaction to the practical joke, not any possible gang membership.
Holland, predictably, answered she was not afraid to testify and denied telling Hun that
Sudduth was a gang member. The court, as promised, gave a limiting instruction.6 Also
predictably, the prosecutor revisited the issue both in questioning of Holland and in
closing argument, which she ended by stating Holland was too afraid to tell the jury
“what the gang member from her neighborhood had done.” As this sequence shows,
once admitted, gang evidence has the capacity to dwarf other issues in the case.

6
        The court interrupted the prosecutor to interject, “Let me just [say] before you
move on . . . I want to make sure that all of you understand that to the extent evidence is
offered directly or indirectly regarding gang membership on the defendant’s part, it is not
offered for the truth of the matter asserted. You are not to consider it for that purpose,
which is to say if you conclude that the defendant is or may have in the past been a gang
member, you don’t presume from that that he is more likely than not to have committed
the offense or is a bad person or anything of that sort. It is to be considered by you only,
that is, exclusively for its impact on the witness in assessing the witness’s credibility.
Consider it for that purpose and . . . none other. Does everyone understand? Yes.
Everyone is indicating yes. Thank you.”

                                             11
       Nonetheless, in light of the broad discretion accorded trial courts on evidentiary
questions, it is difficult to conclude the court abused its discretion in allowing the
prosecutor to ask whether Holland was frightened to testify because she believed Sudduth
was a gang member. Moreover, in light of Nelson’s testimony that Sudduth, whose voice
she instantly recognized, called her to apologize a month or so after the shooting, any
error was harmless under either the federal constitutional standard (see Chapman v.
California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 17 L.Ed.2d 705]; People v. Gonzalez
(2012) 54 Cal.4th 643, 663 [Chapman harmless-error inquiry asks whether it is clear
beyond a reasonable doubt a rational jury would have found the defendant guilty absent
the error]) or the state law harmless error standard (see People v. Watson (1956) 46
Cal.2d 818, 836; People v. Partida (2005) 37 Cal.4th 428, 439 [under Watson test,
“reviewing court must ask whether it is reasonably probable the verdict would have been
more favorable to the defendant absent the error”]). As defense counsel aptly pointed out
during his scramble to find a way to exclude the statement or mitigate its impact, that
testimony by Nelson was devastating to Sudduth’s misidentification defense.
       3. The Trial Court Used the Proper Procedures in Reviewing Information
          Responsive to Sudduth’s Pitchess Motion
       Prior to trial Sudduth moved under Evidence Code section 1043 and Pitchess v.
Superior Court, supra, 11 Cal.3d 531 for a review of the personnel records of several Los
Angeles police officers. The trial court agreed to inspect the records of Officers Franco,
Cardenas, Vargas, Hun, Estrada, Esparra and Williams to determine whether any of these
officers had a history of misconduct relating to racial prejudice, use of excessive force or
violence, false arrest, falsification of reports, illegal search and seizure or acts of
dishonesty. The court reviewed the requested records in camera and found no
discoverable information.
       At Sudduth’s request, which the People did not oppose, we have reviewed the
sealed record of the in camera proceedings and conclude the trial court satisfied the
minimum requirements in determining whether there was discoverable information. No
abuse of discretion occurred. (See People v. Mooc (2001) 26 Cal.4th 1216, 1225.)


                                               12
       4. Sufficient Evidence Supported The Jury’s Verdicts
       To assess a claim of insufficient evidence in a criminal case, “we review the whole
record to determine whether any rational trier of fact could have found the essential
elements of the crime or special circumstances beyond a reasonable doubt. [Citation.]
The record must disclose substantial evidence to support the verdict—i.e., evidence that
is reasonable, credible, and of solid value—such that a reasonable trier of fact could find
the defendant guilty beyond a reasonable doubt. [Citation.] In applying this test, we
review the evidence in the light most favorable to the prosecution and presume in support
of the judgment the existence of every fact the jury could reasonably have deduced from
the evidence. [Citation.] ‘Conflicts and even testimony [that] is subject to justifiable
suspicion do not justify the reversal of a judgment, for it is the exclusive province of the
trial judge or jury to determine the credibility of a witness and the truth or falsity of the
facts upon which a determination depends. [Citation.] We resolve neither credibility
issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]’ [Citation.]
A reversal for insufficient evidence ‘is unwarranted unless it appears “that upon no
hypothesis whatever is there sufficient substantial evidence to support”’ the jury’s
verdict.” (People v. Zamudio (2008) 43 Cal.4th 327, 357; accord, People v. Manibusan
(2013) 58 Cal.4th 40, 87.)
       Sudduth contends the verdicts lack sufficient factual support for the jury’s findings
he was the shooter and was in possession of a firearm. As discussed, Nelson’s testimony
Sudduth had called her to apologize for shooting her was sufficient evidence on both of
these points. Even without that testimony, the evidence would have been sufficient to
convict him on each count based on the Holland’s identification of him to the responding
officers and the investigating detective in the aftermath of the shooting. The combination
of this testimony left an indelible impression of guilt; indeed, the jury deliberated for only
three hours before finding Sudduth guilty.




                                              13
       5. The Trial Court Did Not Abuse Its Discretion by Declining To Dismiss
          Sudduth’s Prior Strike Conviction
       Section 1385, subdivision (a), vests the court with discretion to dismiss a
qualifying strike conviction “in furtherance of justice.” (People v. Superior Court
(Romero) (1996) 13 Cal.4th 497, 530; People v. Williams (1998) 17 Cal.4th 148, 158.)
“[I]n ruling whether to strike or vacate a prior serious and/or violent felony conviction
allegation or finding under the Three Strikes law . . . or in reviewing such a ruling, the
court . . . must consider whether, in light of the nature and circumstances of his present
felonies and prior serious and/or violent felony convictions, and the particulars of his
background, character, and prospects, the defendant may be deemed outside the [three
strikes] scheme’s spirit, in whole or in part, and hence should be treated as though he had
not previously been convicted of one or more serious and/or violent felonies.” (Williams,
at p. 161.)
       We review the trial court’s decision not to dismiss a prior strike allegation under
section 1385 for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 376.)
“[T]he three strikes law not only establishes a sentencing norm, it carefully circumscribes
the trial court’s power to depart from this norm and requires the court to explicitly justify
its decision to do so. In doing so, the law creates a strong presumption that any sentence
that conforms to these sentencing norms is both rational and proper. [¶] . . . [¶] . . . ‘[I]t
is not enough to show that reasonable people might disagree about whether to strike one
or more’ prior conviction allegations. . . . Because the circumstances must be
‘extraordinary . . . by which a career criminal can be deemed to fall outside the spirit of
the very scheme within which he squarely falls once he commits a strike as part of a long
and continuous criminal record, the continuation of which the law was meant to attack’
[citation], the circumstances where no reasonable people could disagree that the criminal
falls outside the spirit of the three strikes scheme must be even more extraordinary.” (Id.
at p. 378.)
       Sudduth contends the trial court abused its discretion in failing to dismiss the prior
strike conviction for first degree burglary, which occurred on March 12, 1985, 28 years


                                              14
before the trial commenced. He acknowledges the remoteness of a strike is not
determinative (see, e.g., People v. Williams, supra, 17 Cal.4th at p. 163 [13-year-old
strikes]) but contends it should be considered among the circumstances of the strike (id.
at p. 161). In arguing to the trial court he pointed out he had been out of jail for 18 years
during which time he had provided for his family and had suffered no felony convictions
during the 15 years preceding this case. He also asserted it was not fair to label him as a
gang member or “rotten citizen.”
       After reviewing Sudduth’s record the trial court stated, “You have spent time in
state prison as much as 12 years [on the 1985 burglary conviction] . . . and have been
convicted of a number of things. It’s not as long as some records, but it’s serious
offenses. . . . What concerns me greatly is just the degree of depravity involved in this
particular case. . . . People play a practical joke on you and you get upset and arm
yourself and start shooting at these people. It’s amazing to me and it’s only out of sheer
fortuity that this isn’t a murder prosecution. . . .”7 The court then announced its sentence.
       Although it would have been within the court’s discretion to dismiss the 1985
strike, it was not an abuse of that discretion to decide not to do so. Sudduth has not led a
legally blameless life after suffering his strike conviction. (See People v. Williams,
supra, 17 Cal.4th at p. 163 [passage of 13 years between strike offense and new offense
not significant given defendant’s failure to refrain from criminal activity in the interim];
People v. Humphrey (1997) 58 Cal.App.4th 809, 813 [trial court abused its discretion by
striking 20-year-old prior where defendant did not subsequently lead a legally blameless

7
        Sudduth spent five years confined to the California Youth Authority as a juvenile.
As an adult he suffered a misdemeanor conviction for grand theft property in 1983; was
detained on a vehicular manslaughter charge in the same year; was convicted of petty
theft in 1984; was convicted of assault with a deadly weapon and first degree burglary in
1985 (for which the court imposed a 12-year state prison sentence); was detained in 1992
on an assault/mayhem/rape charge and imprisoned for a parole violation; was convicted
of petty theft with a prior conviction in 1992 and sentenced to 16 months in state prison;
and was convicted of possession of a firearm by a felon in 1995 and again sentenced to
16 months in state prison. In October 2000, October 2004 and February 2006 he was
convicted of driving with a suspended license.

                                             15
life]; People v. Jefferson (2007) 154 Cal.App.4th 1381, 1388 [declining to strike 22-year-
old strike].) Moreover, as the court observed, the strike added only five years to
Sudduth’s sentence of 40 years to life. Nothing in Sudduth’s argument convinces us the
court abused its broad discretion.
       6. The Sentence Did Not Constitute Cruel or Unusual Punishment
       Sudduth contends his sentence of 40 years to life constitutes cruel and unusual
punishment in violation of the Eight Amendment to the United States Constitution and
cruel or unusual punishment in violation of the California Constitution. Sudduth has
forfeited these arguments by failing to raise them in the trial court. (See, e.g., People v.
Norman (2003) 109 Cal.App.4th 221, 229 [cruel and unusual punishment arguments must
be raised in trial court because they require fact-specific determinations about the offense
and the offender]; see also People v. Vallejo (2013) 214 Cal.App.4th 1033, 1045; People
v. Kelley (1997) 52 Cal.App.4th 568, 583.) In any event, they fail on their merits.
       The Eighth Amendment’s ban on cruel and unusual punishment prohibits
imposition of a sentence that is grossly disproportionate to the severity of the crime.
(Ewing v. California (2003) 538 U.S. 11, 20-21 [123 S.Ct. 1179, 155 L.Ed.2d 108].) In
Graham v. Florida (2010) 560 U.S. 48 [130 S.Ct. 2011, 176 L.Ed.2d 825] (Graham), the
Supreme Court recognized that punishments prohibited as unconstitutionally
disproportionate to the offense generally fall into two classifications: Those that are
categorically prohibited, and those that are prohibited based on the facts of a particular
case. (Ewing, at pp. 58-59.)
       To determine whether a particular sentence is so grossly disproportionate that it
violates the federal Constitution, the court considers all the circumstances of the case,
including the gravity of the offense and the severity of the penalty as well as whether
more serious crimes are subject to the same penalty in other jurisdictions. (Graham,
supra, 560 U.S. at p. 58; Solem v. Helm (1983) 463 U.S. 277 [103 S.Ct. 3001, 77 L.Ed.2d
637].) No single criterion is dispositive. (Solem, at p. 291, fn. 17.) “‘[O]utside the
context of capital punishment, successful challenges to the proportionality of particular
sentences [will be] exceedingly rare.’” (Id. at p. 290, quoting Rummel v. Estelle (1980)

                                              16
445 U.S. 263, 271 [100 S.Ct. 1133, 63 L.Ed.2d 382].) Still, although deference is given
to the Legislature’s prescribed sentence for a particular crime (Solem, at p. 290), no
penalty is per se constitutional. (Ibid.)
       Similarly, under state law Sudduth must overcome a “considerable burden” in
challenging his penalty as cruel or unusual. (People v. Wingo (1975) 14 Cal.3d 169,
174.) He must demonstrate the punishment is so disproportionate to the crime for which
it was imposed it “shocks the conscience and offends fundamental notions of human
dignity.” (In re Lynch (1972) 8 Cal.3d 410, 424 (Lynch); accord People v. Dillon (1983)
34 Cal.3d 441, 478.) The Lynch court identified three factors for the reviewing court to
consider in assessing this constitutional claim: (1) the nature of the offense and the
offender; (2) how the punishment compares with punishments for more serious crimes in
the jurisdiction; and (3) how the punishment compares with the punishment for the same
offense in other jurisdictions. (Lynch, at pp. 425-427.)
       Sudduth contends section 12022.53, subdivision (d), constitutes cruel and/or
unusual punishment on its face and as applied to him and that his overall sentence of
40 years to life violates the federal and state constitutions as applied. Sudduth’s facial
challenge to section 12022.53, subdivision (d), arises from its “draconian enhancement of
[a sentence by] 25 years to life . . . regardless of the circumstances of the shooting or the
severity of the injury or injuries.” Sudduth acknowledges two appellate courts have held
to the contrary (People v. Martinez (1999) 76 Cal.App.4th 489 and People v. Zepeda
(2001) 87 Cal.App.4th 1183) but contends these cases were wrongly decided and should
not be followed.
       We disagree. In rejecting the contention that section 12022.53 is facially
unconstitutional because the statute does not recognize significant gradations of
culpability and fails to account for mitigating circumstances, our colleagues in Division
Four of this court explained: “Section 12022.53 as a whole represents a careful gradation
by the Legislature of the consequences of gun use in the commission of serious crimes.
The section is limited, in the first place, to convictions of certain very serious felonies. . . .
The statute then sets forth three gradations of punishment based on increasingly serious

                                               17
types and consequences of firearm use in the commission of the designated felonies:
10 years if the defendant merely used a firearm, 20 years if the defendant personally and
intentionally discharged it, and 25 years to life if the defendant’s intentional discharge of
the firearm proximately caused great bodily injury. Furthermore, the provision in question
is an enhancement to the base term for the underlying conviction; a trial court retains
flexibility as to fixing the underlying base term for [the underlying crime].” (People v.
Martinez, supra, 76 Cal.App.4th at p. 495.) The Martinez court also rejected the related
argument section 12022.53 arbitrarily imposes severe punishment in cases involving
criminal use of a gun compared to other dangerous or deadly weapons: “[T]he Legislature
determined in enacting section 12022.53 that the use of firearms in commission of the
designated felonies is such a danger that, ‘substantially longer prison sentences must be
imposed . . . in order to protect our citizens and to deter violent crime.’ The ease with
which a victim of one of the enumerated felonies could be killed or injured if a firearm is
involved clearly supports a legislative distinction treating firearm offenses more harshly
than the same crimes committed by other means, in order to deter the use of firearms and
save lives.” (Martinez, at pp. 497-498.) Martinez concluded, “Lines must be drawn
somewhere, and the Legislature has reasonably drawn the line at great bodily injury. The
fact that [section 12022.53,] subdivision (d) leaves no additional room for trial court
discretion based on different gradations of great bodily injury does not render the
punishment cruel or unusual.” (Martinez, at p. 495; accord, People v. Zepeda, supra,
87 Cal.App.4th at pp. 1214-1215.)
       We also reject Sudduth’s contention his overall sentence, as well as the
section 12022.53, subdivision (d), enhancement, is unconstitutional as applied to him.
Faced with the argument a particular punishment is cruel or unusual, courts examine the
nature of the offense and of the offender, “‘with particular regard to the degree of danger
both present to society.’” (People v. Dillon, supra, 34 Cal.3d at p. 479.) In assessing the
nature of the offense, a court should consider the circumstance of the particular offense
such as the defendant’s motive, the way the crime was committed, the extent of his
involvement and the consequences of his acts. (Ibid.) In analyzing the nature of the

                                             18
offender, a court should consider his “age, prior criminality, personal characteristics, and
state of mind.” (Ibid.) “[A] punishment which is not disproportionate in the abstract is
nevertheless constitutionally impermissible if it is disproportionate to the defendant’s
individual culpability.” (Id. at p. 480.)
       There is nothing about Suddeth’s crime that distinguishes it from the many cases
upholding firearm-use sentence enhancements against similar challenges. (See, e.g.,
People v. Em (2009) 171 Cal.App.4th 964, 973-974; People v. Felix (2003)
108 Cal.App.4th 994, 1000-1002; People v. Taylor (2001) 93 Cal.App.4th 318, 323-324;
People v. Gonzales (2001) 87 Cal.App.4th 1, 18-19; see also People v. Wingo, supra,
14 Cal.3d at p. 174 [defendant must overcome a “considerable burden” in challenging his
penalty as cruel or unusual].) Irrationally angered by a harmless practical joke played on
him by friends he had known for nearly 20 years, Sudduth, a person with a substantial
criminal record who, at the age of 51 should have long ago learned to curb such impulses,
left the apartment, retrieved a gun, returned and fired it multiple times into the room he
knew was occupied, seriously injuring Nelson. As our Division Six colleagues observed
in rejecting a similar argument, “Firearms and felons do not mix. Firearms and alcohol
do not mix. Firearms and poor judgment do not mix. Here we have all three and it was a
recipe for disaster. This mixture could have easily resulted in . . . multiple deaths.”
(People v. Vallejo, supra, 214 Cal.App.4th at p. 1045.) This case, too, could have easily
been a murder prosecution. Sudduth has not demonstrated his case is that “exquisite
rarity” where the sentence is so harsh as to shock the conscience or offend fundamental
notions of human dignity. (See People v. Kinsey (1995) 40 Cal.App.4th 1621, 1631.)8
       Accordingly, there is no basis to find the sentence unconstitutional under either the
United States or California Constitutions. His state prison sentence of 40 years to life


8
        Sudduth also contends imposing a 40-year sentence on a 53-year-old (at the time
of trial) man, far in excess of his life expectancy, is cruel and unusual per se. Numerous
courts have rejected this contention. (See People v. Retanan (2007) 154 Cal.App.4th
1219, 1230-1231; People v. Haller (2009) 174 Cal.App.4th 1080, 1090; People v. Byrd
(2001) 89 Cal.App.4th 1373, 1382-1383.)

                                             19
was properly based on his current crimes, his recidivist behavior and his lack of progress
toward rehabilitation. (See, e.g., People v. Cooper (1996) 43 Cal.App.4th 815, 825-826.)
       7. Remaining Issues
       In light of our decision finding no error by the trial court, we reject Sudduth’s
contention the cumulative effect of errors he raised prejudiced him unfairly. We also
direct the superior court clerk to correct the abstract of judgment to add the mandatory
fees identified by the People. (See People v. Dotson (1997) 16 Cal.4th 547, 554, fn. 6 [an
unauthorized sentence may be corrected at any time].)
                                      DISPOSITION
       The judgment is modified (1) to impose separate court assessments of $40 for each
of the two counts pursuant to section 1465.8, subdivision (a)(1); (2) to delete the $30
assessment originally imposed under that section; and (3) to impose an additional $30
court construction fee pursuant to Government Code section 70373, subdivision (a). As
modified, the judgment is affirmed. The superior court is directed to prepare a corrected
abstract of judgment and forward it to the Department of Corrections and Rehabilitation.



                                                         PERLUSS, P. J.


       We concur:



                     ZELON, J.



                     SEGAL, J. *




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

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