Filed 7/22/16 P. v. Patton CA2/8
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION EIGHT



THE PEOPLE,                                                          B261807

                         Plaintiff and Respondent,                   (Los Angeles County
                                                                      Super. Ct. No. BA409232)
                   v.

MICHAEL PATTON,

                         Defendant and Appellant.



         APPEAL from the judgment of the Superior Court of Los Angeles County.
Mildred Escobedo, Judge. Affirmed.

         William L. Heyman, under appointment by the Court of Appeal, for Defendant
and Appellant.


         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Margaret E. Maxwell and Nathan
Guttman, Deputy Attorneys General, for Plaintiff and Respondent.

                                                 **********
       Defendant and appellant Michael Patton appeals from his conviction by jury of
attempted first degree murder, along with several related felonies. Defendant received a
third strike sentence of 60 years to life. He raises claims of insufficient evidence,
instructional and sentencing error, and asks this court to review the proceedings regarding
his pretrial motion for discovery pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d
531 (Pitchess). Defendant also filed, in propria persona, a petition for habeas corpus
(case No. B262100) which we resolve by separate order.
       Finding no merit to defendant’s contentions, we affirm.
                  FACTUAL AND PROCEDURAL BACKGROUND
       Defendant was charged by information with five felonies: possession of a firearm
by a felon (Pen. Code, §§ 29800, subd. (a)(1), 29900, subd. (a)(1); counts 1 and 2);
possession of ammunition by a felon (§ 30305, subd. (a)(1); count 3); attempted murder
(§§ 187, subd. (a), 664; count 4); and assault with a firearm (§ 245, subd. (a)(2); count 5).
It was alleged as to count 4 that defendant personally used and discharged a firearm
causing great bodily injury in the commission of the offense (§§ 12022.5, subd. (a),
12022.7, subd. (a), and 12022.53, subds. (b)-(d)). As to count 5, it was alleged defendant
personally used a firearm causing great bodily injury in the commission of the offense
(§§ 12022.5, subd. (a), 12022.7, subd. (a)). As to all counts, it was alleged defendant had
suffered two prior serious or violent felonies (§§ 667, subds. (a)(1), (b)-(i), 1170.12).
       The charges arose from an incident that occurred on March 20, 2013, near the Los
Angeles Mission in the skid row neighborhood of downtown Los Angeles. The
testimony and evidence received at trial revealed the following material facts.
       David Johnston is homeless and frequents the area around the Los Angeles
Mission located at the intersection of East 5th Street and Wall Street. He is a “street
performer” who “panhandl[es]” for “tips.” He is four feet six inches tall. At around
6:00 a.m. on March 20, Mr. Johnston was near the Los Angeles Mission standing on the
sidewalk along 5th Street. Several other individuals were there as well, including
defendant. Defendant is an amputee who uses a motorized scooter to get around.



                                              2
       After exchanging words, defendant shot Mr. Johnston five times (two shots to his
chest, one in the back, one to his right hand, and one to his hip). Mr. Johnston ran down
the street to the corner. A woman passing by called 911. Mr. Johnston was taken to Los
Angeles County + USC Medical Center to be treated for his injuries.
       Detective Louis Farias of the Los Angeles Police Department was assigned to
investigate the shooting. Based on information received during the investigation,
Detective Farias, along with several other officers, went to the Harold Hotel located a
short distance from the Los Angeles Mission to look for a possible suspect. They went to
the room where defendant resided and found defendant, along with his motorized scooter,
inside the room.
       Pursuant to a warrant obtained a few hours later, Detective Farias recovered a
“nickel plated revolver with an ivory grip,” some ammunition, and approximately $6,000
in cash from defendant’s room. Detective Farias also retrieved the video footage from
the surveillance cameras located on the outside of the hotel, as well as some footage from
cameras located on the exterior of the Los Angeles Mission.
       Officer Deon Joseph, a veteran officer who worked the skid row area, was also
assigned to the investigation of the shooting. From his 17 years working in the
neighborhood, Officer Joseph had developed relationships in the community, particularly
with the homeless population, and was familiar with both defendant and Mr. Johnston.
He knew defendant often sold cigarettes illegally on the street and had issued him several
warnings not to do so.
       Shortly after the shooting, Officer Joseph went to the hospital to try to speak with
Mr. Johnston. Mr. Johnston seemed groggy and was uncooperative, which Officer
Joseph did not find surprising because, in his experience, homeless people and others
who reside near skid row are often reluctant to speak with law enforcement even when
they are the victims of crime. Mr. Johnston remained uncooperative and would not talk
to Officer Joseph when he returned a short time later.
       The next day (March 21), Officer Joseph returned to the hospital a third time to
obtain a statement from Mr. Johnston about what had happened. He recorded the


                                             3
conversation but did not advise Mr. Johnston that he was doing so, believing he would be
reluctant to speak truthfully about the incident if he knew he was being recorded.
Mr. Johnston was still a little groggy, but coherent and able to have a conversation.
Officer Joseph did not have any trouble understanding him.
       Officer Joseph told Mr. Johnston the detectives might be able to help him with his
probation and receive witness protection, but they needed his help because they had
someone in custody but needed Mr. Johnston to identify the shooter, if possible.
Mr. Johnston said “I know who it is” and “I know how the guy looks.” Mr. Johnston said
he was standing outside the mission with several other people where defendant “was
selling alcohol, cigarettes and beer, and he didn’t want me standing there. When I told
him, I am going to stand there. He said ‘You better leave right now, or I’m going to
shoot you.’ ” Mr. Johnston said he couldn’t believe defendant actually shot him.
Mr. Johnston told Officer Joseph that “[h]e shot me in the back when I turned to run.”
       A six-pack photographic lineup card had been prepared by Detective Farias with
defendant’s photograph in position number six. When Officer Joseph showed
Mr. Johnston the six-pack, he said he recognized everyone. Mr. Johnston expressed
concern that if he pointed out the shooter, and people were going to be in court, then
people would know he had pointed out the shooter. Mr. Johnston said he would not
circle anyone’s photograph or sign anything. Officer Joseph told him to just point to the
correct photograph. Mr. Johnston pointed to defendant with “his pinky finger.” He then
asked Officer Joseph, “[i]s that who you got in custody? Wheelchair ass dude. Ride
around in a wheelchair.”
       At trial, Mr. Johnston said he did not want to testify. He had tried to avoid being
served with a subpoena to appear. Mr. Johnston said he did not know who shot him, but
that it was not defendant. He claimed the shooter was actually someone about six feet
tall. He said he had never spoken to any officers at the hospital. Mr. Johnston said he did
not want to get hurt or in trouble for lying about who shot him.
       Mr. Johnston’s recorded statement to Officer Joseph was played for the jury, as
was the video footage from the exterior security cameras on the Harold Hotel and the Los


                                             4
Angeles Mission. The black and white footage from the Harold Hotel shows the
sidewalk and fencing alongside the Los Angeles Mission. Several individuals are
standing on the sidewalk near a tree, including a man of short stature and a man in a
motorized scooter. The short man is close to the curb with his back to the street. The
man in the scooter is facing away from the camera. It appears that the man using the
scooter and the short man are conversing at times. Suddenly, the short man and another
individual start to run up the street, away from the direction of the camera. The man in
the scooter briefly appears to head in the direction of the short man, but then he abruptly
turns the scooter around and drives down the sidewalk in the opposite direction and out
of view. The other individuals who had been standing around on the sidewalk leave the
area.
        The color footage from the Los Angeles Mission shows a man running up the
sidewalk, to the corner and out of view. The person is dressed in a red shirt, a dark hat
and jeans, and clutches his chest as he runs. The person is dressed exactly as described
by the woman who called 911. A recording of the 911 call was played for the jury.
Mr. Johnston acknowledged during his testimony that he is the person shown running up
the sidewalk.
        Defendant did not testify in his own defense and did not call any witnesses.
Defendant stipulated he had suffered a prior felony conviction for purposes of counts 1
through 3.
        The jury found defendant guilty on all five counts. In a bifurcated proceeding, the
court found true that defendant had suffered two prior convictions for assault with a
firearm (Pen. Code, § 245, subd. (a)(2)), one in 1993 and the other in 2000.
        At the sentencing hearing, the court acknowledged receipt of the sentencing
memoranda from both defense counsel and the prosecution, as well as defendant’s
motion to strike pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497
(Romero). Before any argument took place, defendant requested to proceed without
counsel and the court took defendant’s waiver of counsel on the record in accordance
with Faretta v. California (1975) 422 U.S. 806.


                                             5
       The court granted in part and denied in part defendant’s Romero motion. The
court struck defendant’s two prior strikes with respect to counts 1 through 3, but denied
the motion as to counts 4 and 5.
       The court sentenced defendant as a third-strike offender to a term of 60 years to
life, calculated as follows: 25 years to life on count 4, the base term, plus a consecutive
term of 25 years to life for the firearm enhancement pursuant to Penal Code
section 12022.53, subdivision (d), plus 10 years for the two priors pursuant to
section 667, subdivision (a)(1). The court imposed and stayed sentence, pursuant to
section 654, on the remaining counts. Defendant was awarded 717 days of custody
credits.
       This appeal followed. On February 24, 2015, defendant filed, in propria persona,
a petition for a writ of habeas corpus. This court forwarded a copy of the petition to
defendant’s appointed appellate counsel and ordered the petition (case No. B262100) to
be considered in conjunction with this appeal. Respondent requested transmittal of the
trial exhibits to be included in the appellate record. On December 18, 2015, this court
received from the superior court one envelope of trial exhibits, including the video and
audio recordings of the surveillance video, the 911 call and Mr. Johnston’s statement at
the hospital. Upon review of the record, it was discovered that the transcripts related to
defendant’s Pitchess motion were not included. On our own motion, we ordered the
record augmented and directed the superior court to prepare and transmit the transcripts
of the proceedings dated August 26 and 27, 2013. On June 17, 2016, we received the
sealed transcripts.
       On June 24, 2016, we granted defendant’s request to file a supplemental letter
brief, clarifying that the substantial evidence argument raised as to count 4 also applied to
count 5. Respondent did not file a responsive brief. On the day before oral argument, we
granted defendant’s request to file a second supplemental letter brief arguing instructional
error and ineffective assistance of counsel with respect to the omission of CALCRIM
No. 358. Respondent filed a supplemental opposition letter brief, and defendant filed a
reply brief.


                                              6
                                       DISCUSSION
1.     The Instruction on Attempted Voluntary Manslaughter
       Defendant contends the court erred by refusing his requested instruction on
attempted voluntary manslaughter, a lesser included offense to attempted murder. We
review a claim of instructional error de novo. (People v. Alvarez (1996) 14 Cal.4th 155,
217.) We find no error.
       The court’s obligation to instruct on all principles of law relevant to the issues
raised by the evidence at trial includes the obligation to instruct “ ‘on any lesser offense
“necessarily included” in the charged offense, if there is substantial evidence that only the
lesser crime was committed.’ [Citation.]” (People v. Smith (2013) 57 Cal.4th 232, 239;
accord, People v. Bradford (1997) 15 Cal.4th 1229, 1344-1345.) “An instruction on a
lesser included offense must be given only when the evidence warrants such an
instruction. [Citation.] To warrant such an instruction, there must be substantial
evidence of the lesser included offense, that is, ‘evidence from which a rational trier of
fact could find beyond a reasonable doubt’ that the defendant committed the lesser
offense. [Citation.] Speculation is insufficient to require the giving of an instruction on a
lesser included offense.” (People v. Mendoza (2000) 24 Cal.4th 130, 174, italics added.)
       Attempted voluntary manslaughter is a lesser included offense of attempted
murder. (People v. Van Ronk (1985) 171 Cal.App.3d 818, 824-825.) An attempted
murder may be reduced to attempted voluntary manslaughter where the evidence shows
an attempted intentional killing without malice. Absence of malice may be shown either
by evidence the defendant acted in a sudden quarrel or heat of passion, or in the
unreasonable but good faith belief of having to act in self-defense. (See People v. Barton
(1995) 12 Cal.4th 186, 199 (Barton).)
       Defendant contends he was entitled to an instruction on sudden quarrel/heat of
passion (CALCRIM No. 603). An instruction on sudden quarrel/heat of passion is
warranted where there is substantial evidence the defendant was “ ‘disturbed by passion
to such an extent as would cause the ordinarily reasonable person of average disposition
to act rashly and without deliberation and reflection . . . .’ ” (Barton, supra, 12 Cal.4th at


                                              7
p. 201, italics added.) The “ ‘provocation which incites the defendant to homicidal
conduct in the heat of passion must be caused by the victim [citation] or be conduct
reasonably believed by the defendant to have been engaged in by the victim.’ ” (People
v. Johnston (2003) 113 Cal.App.4th 1299, 1311, italics added; accord, People v. Carasi
(2008) 44 Cal.4th 1263, 1306 [for defense to apply victim must “taunt” the defendant “or
otherwise initiate the provocation”].) “ ‘The provocation must be such that an average,
sober person would be so inflamed that he or she would lose reason and judgment.
Adequate provocation and heat of passion must be affirmatively demonstrated.’ ”
(Johnston, supra, at pp. 1311-1312.)
       We find no evidence whatsoever, let alone substantial evidence, that the shooting
was provoked by Mr. Johnston or that defendant was guilty only of the lesser offense of
attempted voluntary manslaughter. Mr. Johnston’s statement to Officer Joseph was that
he was standing near defendant while he was selling cigarettes and other items to
individuals on the sidewalk. Mr. Johnston said defendant told him to leave or he would
shoot him. When Mr. Johnston did not leave, defendant shot him twice in the chest, at
nearly point blank range, once in the back as he ran away, plus once each in the hand and
in the hip. The black and white video footage, while not clearly showing a gun as
defendant’s back is to the camera, appears to corroborate Mr. Johnston’s version of the
incident. There was no evidence of any kind that Mr. Johnston acted in a provocative
way towards defendant before the shooting.
2.     CALCRIM No. 358
       Defendant contends that at the time of trial in 2014, the court had a sua sponte
duty to instruct with CALCRIM No. 358 whenever a defendant’s extrajudicial statement
was at issue, and that the court failed to so instruct the jury. Alternatively, defendant
contends that even if the court did not have a duty to instruct, defense counsel provided
ineffective assistance by asking the court to withdraw the instruction from the packet of
instructions the court had prepared to give the jury and to not give the instruction.
       During discussions with counsel about jury instructions, the court asked defense
counsel if he wanted to request modification of the proposed instructions and defense


                                              8
counsel said that CALCRIM No. 358 should be excluded because he did not “think there
[was] any evidence [defendant] made any statements.” The court agreed to remove the
instruction from the packet. Shortly thereafter while the parties were discussing whether
an instruction on voluntary manslaughter would be appropriate, the prosecutor read from
the transcript of Mr. Johnston’s pretrial statement to Officer Joseph at the hospital in
which he relayed that defendant told him, just before the shooting, to leave the area or
“I am going to shoot you.” Defense counsel responded, “[i]f I missed that I apologize.”
The discussion then continued about whether the evidence supported an instruction on
voluntary manslaughter, but the issue of CALCRIM No. 358 was not revisited.
       CALCRIM No. 358 provides: “You have heard evidence that the defendant made
[an] oral or written statement[s] (before the trial/while the court was not in session). You
must decide whether the defendant made any (such/of these) statement[s], in whole or in
part. If you decide that the defendant made such [a] statement[s], consider the
statement[s], along with all the other evidence, in reaching your verdict. It is up to you to
decide how much importance to give to the statement[s]. [¶] [Consider with caution any
statement made by (the/a) defendant tending to show (his/her) guilt unless the statement
was written or otherwise recorded.]”
       In 2014, when this case went to trial, the trial court had a sua sponte duty to give
CALCRIM No. 358 whenever evidence of an extrajudicial oral statement by the
defendant was presented by the prosecution to prove the defendant’s guilt. (People v.
Miranda (2015) 236 Cal.App.4th 978, 990 (Miranda).)
       In 2015, the Supreme Court held in People v. Diaz (2015) 60 Cal.4th 1176, 1187
(Diaz) that CALCRIM No. 358 applied in cases involving criminal threats, but otherwise
concluded “it is more appropriate to permit defendants to determine whether to request
the instruction than to require the trial judge to give it in every case.” (Diaz, at p. 1192.)
The Diaz court declined to decide the issue of retroactivity. (Miranda, supra, 236
Cal.App.4th at p. 990.)
       We need not resolve whether the court erred in granting defense counsel’s request
to not instruct the jury with CALCRIM No. 358, because any instructional error was


                                               9
harmless under the state law standard for error enunciated in People v. Watson (1956) 46
Cal.2d 818, 835-836. (See People v. Salazar (2016) 63 Cal.4th 214, 251 (Salazar)
[concluding state law standard of error applies to alleged failure to give cautionary
instruction]; Diaz, supra, 60 Cal.4th at p. 1195 [same].)
       Because CALCRIM No. 358 “is intended to help the jury to determine whether the
statement attributed to the defendant was in fact made, courts examining the prejudice in
failing to give the instruction examine the record to see if there was any conflict in the
evidence about the exact words used, their meaning, or whether the admissions were
repeated accurately.” (People v. Dickey (2005) 35 Cal.4th 884, 905.) Where there is no
conflict in the evidence, but rather, simply a denial by the defendant of the statement
attributed to him or her, the failure to give the instruction has been held harmless. (See,
e.g., Dickey, at p. 906; Diaz, supra, 60 Cal.4th at pp. 1196-1197; People v. Bunyard
(1988) 45 Cal.3d 1189, 1224-1225; Miranda, supra, 236 Cal.App.4th at pp. 990-991.)
       The record demonstrates unequivocally there was no factual dispute about the
words attributed to defendant by Mr. Johnston just prior to the shooting. Moreover, the
jury was properly instructed with CALCRIM No. 226 concerning witness credibility and
the relevant factors to consider in evaluating witness testimony. “ ‘[W]hen the trial court
otherwise has thoroughly instructed the jury on assessing the credibility of witnesses, we
have concluded the jury was adequately warned to view their testimony with caution.’
[Citations.]” (Diaz, supra, 60 Cal.4th at p. 1196 [finding harmless the failure to give the
cautionary instruction where jury was instructed with CALCRIM No. 226 and there was
no factual conflict as to the statement attributed to the defendant]; accord, Salazar, supra,
63 Cal.4th at pp. 250-251 [concluding the same as to CALJIC No. 2.71.7, the predecessor
instruction to CALCRIM No. 358].)
       Here, the jury heard the testimony of Officer Joseph regarding Mr. Johnston’s
pretrial statement and identification of defendant as the shooter, as well as the audio
recording of that statement which includes the statement that just prior to the shooting
defendant told Mr. Johnston to leave or he was going to shoot him. They heard fairly
detailed testimony from Mr. Johnston about his desire not to testify, his fear of retaliation


                                             10
on the street, and his claim that the shooter was not defendant but rather someone who
was “six feet tall.” Both the prosecutor and defense counsel emphasized the
inconsistencies in Mr. Johnston’s testimony and the possible reasons underlying those
inconsistencies, and the jury’s need to carefully evaluate his testimony. As already noted
above, the jury was instructed with CALCRIM No. 226. Defendant has not shown that
an additional instruction advising the jury to view extrajudicial oral statements by
defendant with caution would have resulted in a more favorable verdict to defendant.
       Defendant’s ineffective assistance claim fails for the same reasons. The burden is
on defendant to establish ineffective assistance by a preponderance of the evidence.
(People v. Ledesma (1987) 43 Cal.3d 171, 218.) A defendant “must show both that trial
counsel failed to act in a manner to be expected of reasonably competent attorneys acting
as diligent advocates, and that it is reasonably probable a more favorable determination
would have resulted in the absence of counsel’s failings.” (People v. Cudjo (1993) 6
Cal.4th 585, 623, citing Strickland v. Washington (1984) 466 U.S. 668, 687-696.) On
direct appeal, this burden is stringent. (People v. Mendoza Tello (1997) 15 Cal.4th 264,
266-267.) We cannot say that no reasonably competent attorney would have asked the
court to not give CALCRIM No. 358 in this case. As the Supreme Court recognized in
Diaz, “[t]he cautionary instruction does not reflect a legal principle with which jurors
would be unfamiliar absent the instruction, and the defendant may not always want the
instruction to be given.” (Diaz, supra, 60 Cal.4th at p. 1189.) Moreover, defendant
cannot demonstrate that it is reasonably probable he would have obtained a more
favorable result had the instruction been given.
3.     The Evidence Supporting Counts 4 and 5
       Defendant next argues there is insufficient evidence supporting the jury’s findings
he committed attempted premeditated murder or assault with a firearm. Our task is to
“review the whole record in the light most favorable to the judgment to determine
whether it discloses substantial evidence—that is, 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.” (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) “Reversal


                                             11
on this ground is unwarranted unless it appears ‘that upon no hypothesis whatever is there
sufficient substantial evidence to support [the conviction].’ [Citation.]” (People v. Bolin
(1998) 18 Cal.4th 297, 331; accord, People v. Manriquez (2005) 37 Cal.4th 547, 577
(Manriquez).) We conclude the record contains solid evidence in support of the verdict.
       Defendant contends the evidence is insufficient to establish he was the shooter,
that he had the requisite intent to kill, or to establish premeditation. Defendant argues the
video does not show clearly who is in the motorized scooter, and does not show a gun or
who shot Mr. Johnston. He further argues the incident happened very quickly and that, at
trial, Mr. Johnston denied defendant was the shooter, testifying instead that the person
who shot him was six feet tall.
       In People v. Anderson (1968) 70 Cal.2d 15, 26-27, the Supreme Court “identified
three types of evidence—evidence of planning activity, preexisting motive, and manner
of killing—that assist in reviewing the sufficiency of the evidence supporting findings of
premeditation and deliberation.” (People v. Mendoza (2011) 52 Cal.4th 1056, 1069
(Mendoza).) However, the court made clear “that ‘ “Anderson did not purport to
establish an exhaustive list that would exclude all other types and combinations of
evidence that could support a finding of premeditation and deliberation.” [Citations.]’ ”
(Ibid.; accord, People v. Perez (1992) 2 Cal.4th 1117, 1125, and Manriquez, supra,
37 Cal.4th at p. 577.)
       Further, “it is well settled that intent to kill or express malice, the mental state
required to convict a defendant of attempted murder, may in many cases be inferred from
the defendant’s acts and the circumstances of the crime. [Citation.] ‘There is rarely
direct evidence of a defendant’s intent. Such intent must usually be derived from all the
circumstances of the attempt, including the defendant’s actions.’ ” (People v. Smith
(2005) 37 Cal.4th 733, 741.)
       Defendant, a convicted felon, was carrying a loaded firearm in public. Defendant
told Mr. Johnston he did not like having Mr. Johnston standing near where he was selling
alcohol, cigarettes and beer. When Mr. Johnston told him he was not going to leave,
defendant said “You better leave right now, or I’m going to shoot you.” Mr. Johnston did


                                              12
not leave, and defendant shot him at close range twice in his chest, a vital area of the
body; conduct which could easily have resulted in a lethal injury. Defendant also shot
Mr. Johnston in the back as he ran away. The video footage shows defendant pursuing
Mr. Johnston as he fled, before defendant turns his scooter around and heads in the
opposite direction, fleeing the scene. “The act of shooting a firearm toward a victim at
close range in a manner that could have inflicted a mortal wound had the shot been on
target is sufficient to support an inference of an intent to kill.” (People v. Houston (2012)
54 Cal.4th 1186, 1218; see also Manriquez, supra, 37 Cal.4th at p. 577 [“ ‘[t]he process
of premeditation and deliberation does not require any extended period of time’ ”], and
People v. Brito (1991) 232 Cal.App.3d 316, 323-324 [fact that the defendant made
decision, within a matter of a few seconds, to shoot fleeing victim in back did not defeat
finding of deliberation].) We find it hard to imagine that, with this evidence, any
reasonable juror could entertain a reasonable doubt that defendant deliberately and with
premeditation intended to kill Mr. Johnston. The same evidence plainly supports the
jury’s finding that defendant committed an assault with a firearm.
       Finally, defendant is correct that, at trial, Mr. Johnston denied that he had
identified defendant as the shooter and testified that the person who shot him was not in a
motorized scooter but was actually six feet tall. However, Mr. Johnston also testified in
some detail about his fear of retaliation on the street for identifying the shooter. Given
the ample evidence that corroborated Mr. Johnston’s recorded statement, the jury was
entitled to give credit to Mr. Johnston’s pretrial statement and the corroborating evidence,
over his denials at trial about the true identity of the shooter.
4.     The Romero Motion
       Defendant contends the court erred in denying his Romero motion with respect to
count 4. We disagree.
       We review a court’s ruling on a Romero motion under the deferential abuse of
discretion standard. (People v. Williams (1998) 17 Cal.4th 148, 162 (Williams); accord,
People v. Carmony (2004) 33 Cal.4th 367, 375-376 (Carmony) [holding abuse of
discretion standard applies to review of a trial court’s decision declining to strike a prior


                                               13
strike].) A trial court is “ ‘ “presumed to have acted to achieve legitimate sentencing
objectives” ’ ” and the decision to impose a particular sentence will not be set aside
unless an affirmative showing is made that the sentence is irrational or arbitrary.
(Carmony, at pp. 376-377.) “[A] trial court does not abuse its discretion unless its
decision is so irrational or arbitrary that no reasonable person could agree with it.” (Id. at
p. 377.)
          The court granted defendant’s Romero motion in part, striking the prior strikes for
sentencing purposes as to counts 1, 2, and 3. However, the court denied the motion as to
counts 4 and 5. The court acted within its discretion in denying the motion as to some
counts. (People v. Garcia (1999) 20 Cal.4th 490, 503-504 [trial court may, consistent
with the Three Strikes law, exercise its discretion “to dismiss a prior conviction allegation
with respect to one count, but not with respect to another”].)
          In exercising its discretion whether to strike a prior strike allegation, the court
considers various factors, including the nature and circumstances of the defendant’s
present felonies and prior convictions, the defendant’s background, character, and
prospects, and whether the defendant may properly be deemed outside the spirit of the
Three Strikes law. (Williams, supra, 17 Cal.4th at p. 161.) The Three Strikes law creates
a sentencing norm and “carefully circumscribes the trial court’s power to depart from this
norm.” (Carmony, supra, 33 Cal.4th at p. 378.) “[T]he law creates a strong presumption
that any sentence that conforms to these sentencing norms is both rational and proper.”
(Ibid.)
          Defendant concedes he has two prior strikes for serious felonies under the Three
Strikes law, both for assault with a firearm in violation of Penal Code section 245,
subdivision (a)(2); one conviction was in 1993, the other in 2000. Defendant’s criminal
record also includes two convictions for possession for sale of marijuana, two convictions
for resisting an officer, and a conviction for assault with a deadly weapon by a prisoner.
While defendant had not had a conviction for several years preceding the shooting of
Mr. Johnston, the record nonetheless demonstrates a history of violent criminal conduct



                                                 14
throughout defendant’s adult life. Defendant has not affirmatively shown an abuse of
discretion by the trial court in declining to strike the strikes as to counts 4 and 5.
5.     The Eighth Amendment Claim
       Defendant argues his sentence amounts to cruel and unusual punishment and
violates the Eighth Amendment on the following grounds: (1) Penal Code
section 12022.53, subdivision (d) is facially unconstitutional as it fails to recognize
gradations of culpability; and (2) the statute is unconstitutional as applied to defendant
because it mandates a grossly disproportionate sentence relative to the offense.
       “Whether a punishment is cruel or unusual is a question of law for the appellate
court, but the underlying disputed facts must be viewed in the light most favorable to the
judgment.” (People v. Martinez (1999) 76 Cal.App.4th 489, 496 (Martinez).) We do not
find defendant’s sentence violates the Eighth Amendment.
       Defendant’s facial challenge to Penal Code section 12022.53, subdivision (d) is
unpersuasive. Defendant contends the failure of the statute to recognize gradations in
culpability results in a mandatory, “draconian” enhancement of 25 years to life for use of
a firearm regardless of the circumstances of the shooting. Defendant acknowledges that
at least two courts have rejected the argument, but argues those decisions were “wrongly
decided and should not be followed.” We disagree. We believe the analysis and
holdings of Martinez, supra, 76 Cal.App.4th 489 and People v. Zepeda (2001) 87
Cal.App.4th 1183, 1214-1215 are correct on the issue before us. (See also People v.
Alvarez (2001) 88 Cal.App.4th 1110, 1114-1119 [citing Martinez with approval in
rejecting equal protection challenge to § 12022.53, subd. (d)].)
       As Martinez aptly explains: “[Penal Code] 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 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


                                              15
defendant’s intentional discharge of the firearm proximately caused great bodily injury.”
(Martinez, supra, 76 Cal.App.4th at p. 495.)
       Defendant’s as-applied challenge is equally unavailing. The Eighth Amendment,
which forbids cruel and unusual punishments, contains a “ ‘narrow proportionality
principle’ that ‘applies to noncapital sentences.’ [Citation.]” (Ewing v. California (2003)
538 U.S. 11, 20 [affirming sentence of 25 years to life imposed on a third-strike offender
convicted of felony grand theft for the theft of $1,200 worth of merchandise].) The
Eighth Amendment prohibits only a sentence that is “grossly disproportionate” to the
severity of the charged crime(s). (Ewing, at p. 21.) Outside the context of a capital
sentence, “ ‘successful challenges to the proportionality of particular sentences have been
exceedingly rare.’ [Citation.]” (Ibid.)
       “A sentence violates the state prohibition against cruel and unusual punishment
(Cal. Const., art. I, §§ 6, 17) if ‘ “it is so disproportionate to the crime for which it is
inflicted that it shocks the conscience.” ’ [Citations.] [¶] A sentence violates the federal
Constitution [(U.S. Const., 8th & 14th Amends.)] if it is ‘grossly disproportionate’ to the
severity of the crime.” (People v. Russell (2010) 187 Cal.App.4th 981, 993.)
       Here, defendant had suffered two prior convictions for assault with a firearm. In
the charged offense, the evidence showed that defendant threatened to shoot Mr. Johnston
for no reason other than that defendant did not want Mr. Johnston to stand near him on
the sidewalk. There was no evidence of provocative behavior by Mr. Johnston.
Defendant then shot at Mr. Johnston at close range five times, including once in the back
as Mr. Johnston tried to flee. It was a violent crime carried out by an individual with a
violent criminal history. Defendant has not demonstrated that the sentence is
disproportionate to the offense or otherwise shocks the conscience.
6.     The Pitchess Motion
       Defendant asks this court to review the sealed proceedings, as well as the actual
personnel records reviewed by the trial court, related to his Pitchess motion and to
determine whether any discoverable materials were wrongfully withheld. Respondent
does not object to our review of the sealed transcripts.


                                               16
       In August 2013, defendant moved pretrial to discover any relevant personnel
records related to Detective Farias and Officer Joseph. The supporting declaration of
counsel asserts that Detective Farias and Officer Joseph conducted an illegal search of
defendant’s hotel room, against defendant’s denial of consent and before a search warrant
was obtained; illegally seized various items; and stole some money recovered from a
duffle bag in defendant’s room. The trial court granted defendant’s motion in part,
ordering that as to both Detective Farias and Officer Joseph, any complaints pertaining to
perjury or preparation of false police reports, as well records concerning any response or
discipline imposed following any investigation of such complaints, were to be turned
over to the defense.
       The in camera hearing held August 27, 2013, was transcribed by a court reporter,
the custodian of records was placed under oath, and the record of proceedings was sealed.
We have independently reviewed the sealed transcript of the in camera proceedings and
are satisfied the court did not abuse its discretion in ruling on defendant’s motion.
(People v. Mooc (2001) 26 Cal.4th 1216, 1228-1230; see also People v. Myles (2012) 53
Cal.4th 1181, 1209 [where records reviewed by trial court in camera are adequately
specified in sealed transcript to afford meaningful appellate review, then review of actual
records is unnecessary].)
                                      DISPOSITION
       The judgment of conviction is affirmed.


                                                         GRIMES, J.
       WE CONCUR:
                       BIGELOW, P. J.




                       FLIER, J.




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