Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. EE605050
McAdams, J.
A jury found defendant Anthony Troy Baker guilty of robbery, resisting arrest by means of force or violence, a felony, and receiving stolen property. (Pen. Code §§ 211/212.5, subd. (c); 69; 496, subd. (a).) In a bifurcated trial, the jury found true the allegations that defendant had suffered seven prior serious or violent felonies within the meaning of the Three Strikes law, including a prior robbery, and had served a prior prison term for a violent felony. (§§ 667, subds. (b)-(i)/1170.12; 667, subd. (a); 667.5, subds. (a) & (c).) The trial court sentenced defendant to three consecutive 25 year terms plus an additional five years for the prior robbery conviction, for a total term of 80 years to life. On appeal, defendant contends that the trial court erred prejudicially by: (1) denying his Marsden motion to substitute counsel (People v. Marsden (1970) 2 Cal.3d 118 (Marsden)); (2) allowing two deputies to testify that he refused to attend his trial, and then instructing the jury that his refusal to attend trial could reflect a consciousness of guilt; (3) denying his motion to strike his prior convictions pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero), and (4) imposing consecutive sentences under the Three Strikes law on counts 2 and 3. We affirm.
Unless otherwise indicated, all further statutory references are to the Penal Code.
STATEMENT OF FACTS
At approximately 1:00 a.m. on April 12, 2006, Marcelina Surco walked to her car in the parking lot next to a restaurant in Sunnyvale’s Town and Country Mall where she had just eaten dinner with friends. Her purse was hanging over her left shoulder. She had just opened her car door and sat down in the driver’s seat when an African American man wearing a hooded jacket stepped between the open car door and the car and said, “How are you?” Surco had never before seen the man – later identified by her as defendant – and responded “I’m okay” as she tried to close the car door. Defendant grabbed the purse and pulled it away from her person; it fell to the ground. Then defendant groped her crotch and her breast over her clothing and dragged her out of the car and around the parking lot for about 12 feet. Surco was extremely frightened; she thought defendant was going to kill her.
When defendant started to drag Surco back to the car, she began to yell for help. He forced Surco back into her car and made her lie down on the front seats. He again grabbed at her crotch, vaginal area and breasts, then grabbed the purse from the ground and ran away.
The police arrived three to five minutes later. Sobbing and trembling, Surco told the police what had happened and described her assailant. She said her purse contained $40 in cash, a checkbook, her Kaiser and ATM cards, her driver’s license, credit cards, Cache Creek casino resort card, two $1 casino chips, photographs and a slip of paper with a friend’s Philippine address, as well as her employer’s ATM card, library and Blockbuster cards and driver’s license.
Surco’s description of the robber was broadcast over the police radio. About nine minutes later, police officer Alan Hartnett saw a person matching the description – defendant – walking towards him. Defendant turned around and ran when he saw Hartnett. Hartnett yelled at defendant to stop, but defendant kept running, with Hartnett in pursuit. Other officers joined the chase, spotted defendant and saw him run into a backyard. Another officer, McDowell, saw defendant crouched in the backyard and said, “Sunnyvale police, put your hands up.” Defendant ignored the officer and jumped over fences and in and out of other backyards. Yet another officer, Cortese, confronted defendant in a parking lot and repeatedly ordered him to stop and get on the ground. Defendant continued to run away, with the officer in pursuit. Eventually, Cortese caught defendant and ordered him to stay down. When defendant refused to comply, Cortese hit defendant several times with his baton. Defendant got up and started to run, but Cortese grabbed him by the legs; Cortese fell down. Officer Kassel arrived on the scene and tackled defendant to the ground. After more resistance and struggle, defendant was finally subdued and handcuffed. Cortese suffered numerous cuts and abrasions on his hands and knees.
In the meantime, Officer Miller found strewn in the driveway of one of properties traversed by defendant credit cards, driver’s licenses and other items belonging to Surco and her employer. A Visa card belonging to Jasmine Duong was also found.
Surco was taken to the arrest scene, where she identified defendant as her assailant. When defendant was searched before booking at the jail, police found a flash memory drive belonging to Kevin Hathaway in a pouch tied around defendant’s neck; Surco’s Cache Creek resort card and her employer’s Blockbuster card in defendant’s wallet; and a driver’s license belonging to Shahbazian in the insole of defendant’s shoe.
In addition, a householder found amid his broken patio furniture, Surco’s checkbook, some casino chips, a VIP Preferred card in Surco’s name and a slip of paper with a Philippine address on it.
Hathaway’s flash memory drive was stolen from him at a San Jose Starbuck’s store in late March 2006. Shahbazian’s expired driver’s license was stolen from her desk drawer at work. Doung’s wallet was stolen from her car sometime before April 12, 2006; in it were credit cards and her check register.
DISCUSSION
1. Denial of Marsden Motion
Defendant contends the court erroneously denied defendant’s June 27, 2006 Marsden motion because (1) there was an obvious breakdown in the attorney-client relationship and (2) counsel was ineffective, having done little investigation or trial preparation. He asserts the error violated his Sixth Amendment right to counsel and is reversible per se. We disagree.
a. Factual Background
On June 27, 2006, the day trial was originally scheduled to begin, defendant submitted a written motion to discharge his attorney and request substitute counsel. In it, defendant alleged that defense counsel had failed to perform an independent investigation into the prosecution’s complaint; failed to “cross-reference officer(s) and witnesse(s) statements, so as to impeach the creditability [sic] in a preliminary hearing, as well as prepare an affirmative defense by securing [an] expert witness to challenge or refute any lab evidence”; failed and refused “to prepare or introduce motion(s) to suppress or argue the relevancy of testimony or [r]eal evidence that could prejudice” him at the preliminary hearing or trial; and finally, due to his inadequate representation, defense counsel had “taken on the role of a surrogate for prosecutor against defendant’s interest, creating an irreconcilable conflict.”
In a closed hearing from which the prosecutor was excluded, defendant stated his reasons for his dissatisfaction with counsel. On four occasions, defendant left defense counsel phone messages and defense counsel did not return his calls. Outside the courtroom, defendant had seen defense counsel only three times. Defense counsel’s investigation had been nil. Asked by the court to explain his specific complaints about the investigation, defendant stated that defense counsel had failed to cross-examine or “basically talk to the officer” who testified at the preliminary hearing. He also complained that defense counsel had not gotten discovery before the preliminary hearing and that defendant had asked for but had not received all the police reports (especially those from Mountain View police) or lab results of the “blood trace evidence.” Further, he complained that every time he came to court the prosecution handed him another amended complaint, and no one seemed to want to abide by the rules for “changing the information in the complaint.” Finally, he complained that defense counsel had been on vacation for a month. Asked by the court if he had any other complaints, defendant said “Not at this time, Your Honor.”
The court then asked defense counsel to respond, and to describe his experience in criminal practice. Defense counsel stated that he had been a public defender since September 1997, had been working on felony cases since 1999, and had tried 23 cases to a jury, done hundreds of preliminary hearings and numerous other cases. Defense counsel had asked his investigator to print out 100 to 200 photographs that the district attorney had submitted on a CD. He had not done any further investigation because defendant had not told him about any witnesses defendant wanted him to interview, and had not asked him to take pictures of the crime scene. Defendant had not divulged his defense to defense counsel. He said that he had a very strong defense that he would reveal “in open court in front of the judge, the D.A., the jury and everybody else when the appropriate time comes.”
Defense counsel said he had interviewed defendant two or three times at the jail, and that one of those interview had lasted for an hour. During that time, defendant had not told him anything that would assist him in a defense, but he had asked for discovery. Defense counsel had been able to provide most of what defendant had asked for; he had provided transcripts of the 911 tapes, copies of all the police reports he had been given, a copy of the preliminary hearing (provided that morning) and copies of the latent print examination. He was not aware of any lab report; the only blood at the scene belonged to defendant inasmuch as defendant had suffered cuts and abrasions in his altercation with police. There did not appear to be any reason for the officers to analyze the blood, and since he was not aware of any reason why a blood test would be relevant, he had not requested one.
He had made two different discovery requests of the District Attorney’s office to provide all the reports, including any from Mountain View police, fingerprint analysis, and rap sheets on the complaining witness. In addition, he had attached a Brady letter (Brady v. Maryland (1963) 373 U.S. 83) for “anything that could be possibly be exculpatory in this matter.” He had been told there were no reports from Mountain View police. He had redacted the reports given to defendant as required by law. He was not aware of any impeachment of the police officers at the preliminary hearing that defendant thought he should have done, and he did not think it was always good practice to impeach witnesses at the preliminary hearing instead of waiting until trial, and tactically believed it was best to avoid impeaching witnesses on trivial, minor inconsistencies at either the preliminary hearing or trial. Furthermore, he had not interviewed the police officers prior to the preliminary hearing because the police departments in question had blanket office-wide policies of refusing to speak with public defenders or public defender investigators about pending cases.
Defense counsel admitted he had been on vacation, but said he had told defendant ahead of time. When he came back from vacation, he had 10 or 20 voicemail messages from somebody in custody, but no identifying information was left and so he did not know which of his 10 to 15 incarcerated clients might have called him. He had the case for about six weeks prior to going on vacation, and he believed that during that time he had been able to see defendant at the jail, or talk to him on the phone, whenever defendant called him. In addition, he had a lengthy interview with defendant in the court room prior to the preliminary hearing. He believed he had “been able to communicate with Mr. Baker insofar as he has been willing to help me.”
Defense counsel said he was very concerned about defendant’s case and had pointed out to defendant several times that the evidence against him was overwhelming, and in order to help him, defense counsel needed defendant to provide the information that he had so far been unable or willing to provide.
The court asked defendant to respond. Defendant denied calling defense counsel while he was on vacation. He believed it was defense counsel’s job to talk to the officers: “Let them tell him no, so it’s in the record.” He complained that on the day of the preliminary hearing, he had seen the police officers go over their statements in the back of the courtroom, and defense counsel did not object. Further, he did not object when the complaining witness sat in court and listened to the reading of the charges against him at the arraignment, and did not cross-examine or impeach her when she “embellished her statement after hearing the formal arraignment complaints.” Defendant thought the witness should have been excluded from the arraignment hearing, and the police officers should not have been allowed to talk to each other and go over their statements in the presence of the witness.
The court asked defense counsel to respond. Defense counsel pointed out that he had made a motion to exclude witnesses from the preliminary hearing and it had been granted. Defendant had declined to waive formal reading of the amended complaint, and so the public was able to hear about the charges and the strike prior convictions. He was not aware of any legal basis for excluding the public from the arraignment.
The court asked defendant to respond. Defendant said he felt he had a right to have the complaint read aloud. He had never denied his strike priors to defense counsel, but if defense counsel had investigated them, he would have found that defendant had never been convicted of some of them. If defense counsel had “filed the right paperwork as far as the prior complaints … [t]hat could have been handled before we ever got to the preliminary hearing.”
The court reviewed defendant’s written motion and asked defense counsel to respond to the allegations which had not so far been addressed. Defense counsel reiterated that he had not seen any lab evidence that expert testimony would be valuable in refuting; he had not seen any basis for a motion to suppress; he had not seen any police misconduct and defendant had not mentioned any to him. “As far as being a surrogate for the prosecutor, I’m not sure exactly what he’s saying, but I think the Court knows that I’m certainly not a surrogate for [the prosecutor in this case] or anybody else in the prosecutor’s office.”
Again the court asked defendant to respond. Defendant complained that the police had seized a great deal of property that did not belong to the supposed victim; that at the preliminary hearing the prosecutor had made reference to a driver’s license that was not illegal for him to possess, because the individual to whom the license belonged had not objected to defendant’s possession of it; and that the police investigation had been selective. He believed that everything outside of the supposed victim’s evidence was irrelevant unless the police were going to bring charges for it.
Defense counsel responded that at the time of the preliminary hearing, the prosecutor had said he would provide additional police reports demonstrating that the items belonging to people other than Surco were stolen, and that the prosecutor did eventually provide him with those reports. Furthermore, as the evidence relating to Surco was ample to carry the People’s burden of showing a violation of section 496 at the preliminary hearing, and the People could not allege multiple counts of section 496 violations, he was not terribly concerned about the references to the other evidence. As for the jewelry and other articles that defendant had in his possession which were not proven to have been stolen, defense counsel thought “the trier of fact would take that for whatever it was worth when it was introduced at the preliminary hearing.” The court asked for further comments, if any, but neither defendant nor defense counsel had anything more to say.
The court ruled as follows. “Based on what I’ve heard and the written submission in this matter, I do find [defense counsel] has properly represented Mr. Baker and will continue to do so. To the extent there has been a personality conflict issue raised – I think that was only raised peripherally by Mr. Baker’s inability to contact [defense counsel] and sort of overall frustration with the way the defense is going in terms of investigation, I find there has not been a breakdown in the relationship between [defense counsel] and Mr. Baker to make it impossible for [defense counsel] to effectively represent Mr. Baker. [¶] So, for those reasons, the motion is denied.”
b. Governing Legal Principles
Our Supreme Court has recently reiterated the well-settled rules that govern our inquiry into alleged Marsden error. “When a defendant seeks to discharge his appointed counsel and substitute another attorney, and asserts inadequate representation, the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of the attorney’s inadequate performance. [Citation.] A defendant is entitled to relief if the record clearly shows that the first appointed attorney is not providing adequate representation [citation] or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result. [Citation.] The decision whether to grant a requested substitution is within the discretion of the trial court; appellate courts will not find an abuse of that discretion unless the failure to remove appointed counsel and appoint replacement counsel would substantially impair the defendant’s right to effective assistance of counsel.” (People v. Abilez (2007) 41 Cal.4th 472, 487-488 (Abilez), internal quotation marks omitted.)
The denial of a defendant’s motion to substitute counsel implicates the Sixth Amendment. “On direct review of the refusal to substitute counsel, the Ninth Circuit Court of Appeals considers the following three factors: (1) timeliness of the motion; (2) adequacy of the court’s inquiry into the defendant’s complaint; and (3) whether the conflict between the defendant and his attorney was so great that it resulted in a total lack of communication preventing an adequate defense. [Citations.] It found, and we agree, that these elements are consistent with California law under People v. Marsden, supra, 2 Cal.3d 118, and its progeny.” (Abilez, supra, 41 Cal.4th at pp. 490-491, internal quotation marks omitted.)
c. Analysis
The trial court’s core duty under Marsden is to conduct an adequate inquiry into the defendant’s reasons for his dissatisfaction with counsel, by permitting the defendant to fully air his complaints and eliciting a response from defense counsel. Here, the trial court’s conduct of the Marsden hearing was exemplary, and defendant does not argue otherwise. Instead, he argues that the trial court came to the wrong conclusion when it determined that there was not an irreconcilable breakdown in the attorney-client relationship, and that defense counsel’s limited investigation, as of the date of the Marsden hearing, did not constitute ineffective assistance of counsel.
Defendant relies most heavily on the fact that defense counsel had sent out only one investigation request. He claims for the first time on appeal that “a competent defense attorney would have, at the very minimum, sent a defense investigator to interview … Ms. Surco, as well as the civilian witnesses who had property stolen from them[;] canvass the area around the restaurant parking lot where the robbery took place…[;] attempted to interview the restaurant employees … [and] also canvassed the area where [defendant] was arrested by police because there could have been potential witnesses in the apartment complex.” He cites In re Hall (1981) 30 Cal.3d 408 at page 425, for the proposition that defense counsel, presumably in every felony case, has “the duty to conduct an independent investigation by having his own investigator interview all of the potential civilian witnesses.”
There are two problems with defendant’s assertions. First, defendant did not complain, at the time of the Marsden hearing, of counsel’s failure to canvass the restaurant or the arrest scene for possible witnesses, failure to interview restaurant employees, and failure to interview the owners of all the stolen property found on defendant. These issues were “not raised until after the trial court had denied defendant’s Marsden motion”; therefore, they “cannot be used to undermine the trial court’s exercise of discretion in denying the motion.” (Abilez, supra, 41 Cal.4th at p. 489.)
As for Ms. Surco, defendant’s main complaint was that she had embellished her statement after listening to the reading of the charges against him at arraignment, and defense counsel had not objected to her presence at the arraignment or “impeached” her with her pre- and post- arraignment statements at the preliminary hearing. Defense counsel explained that he had tactical reasons for withholding impeachment at the preliminary hearing, that defendant had wanted to hear the charges read aloud at arraignment (a fact which defendant admitted), and that he knew of no basis for excluding the public from arraignments. Defense counsel also explained that he did not object at the preliminary hearing to the evidence that items stolen from individuals other than Ms. Surco were found on defendant, because the prosecutor already had ample basis for the receiving stolen property charge based upon the items stolen from Ms. Surco, and the prosecutor had charged only one count of receiving stolen property.
The second problem with defendant’s argument is that In re Hall, does not stand for the bald proposition for which he cites it. The defense attorney in the Hall case did not hire a trained investigator (a practice the Court refused to condemn as ineffective assistance of counsel) and then “systematically ignored the information provided by petitioner’s family and failed to interview or subpoena numerous witnesses expressly made known to him. … [He] thereby rendered futile the efforts of petitioner and his family in supplying lists of potential witnesses and in reporting other relevant information they had acquired.” (In re Hall, supra, 30 Cal.3d at p. 425, italics added.) Not “every decision to curtail investigation in an area based on the improbability of finding evidence is ineffective assistance. [Citation.] Courts must be careful not to second-guess resource allocation; it is for counsel to decide what leads are or are not worth exploring.” (In re Thomas (2006) 37 Cal.4th 1249, 1264, fn. 4.) Neither Hall nor Thomas requires defense counsel to dedicate himself to finding ephemeral witnesses he has no reason to believe actually exist. Under the circumstances present here, the trial court would have been warranted in concluding that the failure to conduct the type of investigation posited by appellate counsel did not establish ineffective assistance of counsel.
Defendant also argues that the very fact that he refused to give his attorney the names of any defense witnesses showed an absence of trust and a deep, irreconcilable conflict with his attorney. We disagree. A defendant’s bare allegation that he does not trust his defense attorney is insufficient to compel the trial court to replace counsel. “ ‘If a defendant’s claimed lack of trust in, or inability to get along with, an appointed attorney were sufficient to compel appointment of substitute counsel, defendants effectively would have a veto power over any appointment, and by a process of elimination could obtain appointment of their preferred attorneys, which is certainly not the law.’ ” (Abilez, supra, 41 Cal.4th at p. 489.) We note that defendant himself never claimed to distrust defense counsel, or that his ability to communicate with counsel had completely broken down. He agreed, in fact, that he and defense counsel had several conversations. Here, as in Abilez, “[t]o the extent there was a credibility question between defendant and counsel at the hearing, the court was entitled to accept counsel’s explanation. [Citation.] Defendant was given full opportunity to air all of his complaints, and counsel to respond to them.” (Abilez, at p. 488, internal quotation marks omitted.) Counsel addressed defendant’s specific complaints and adequately explained his reasons for acting as he did. The trial court listened at length to both sides and concluded that counsel had not rendered ineffective assistance, and no irreconcilable breakdown in attorney-client communication had occurred, thus no basis for substitution existed. That decision was not arbitrary or unreasonable on the facts before the trial court. There was no abuse of discretion.
Defendant also relies on four federal court of appeals cases to support his claim that his Sixth Amendment right to counsel was violated: Brown v. Craven (9th Cir. 1970) 424 F.2d 1166 (Brown); United States v. Williams (9th Cir. 1979) 594 F.2d 1258 (Williams); United States v. Mullen (4th Cir. 1994) 32 F.3d 891(Mullen) and United States v. Moore (9th Cir. 1998) 159 F.3d 1154 (Moore). Each of these cases is factually distinguishable and none compels us to reverse the trial court.
As our Supreme Court noted in Abilez, in Brown “the court that entertained the defendant’s Marsden motion made ‘no adequate inquiry into the cause of [the defendant’s] dissatisfaction with his counsel’….” (Abilez, supra, 41 Cal.4th at p. 491.) Here, by contrast, the court’s determination was made after an exhaustive inquiry. In Williams, the relationship between the defendant and defense counsel had been so “stormy” that there had been “quarrels, bad language, threats and counter-threats” between the two. (Williams, supra, 594 F.2d at p. 1260.) In Mullen, there was “a total breakdown in communication” between the defendant and her attorney. (Mullen, supra, 32 F.3d at p. 897, italics added.) Here, defendant and defense counsel had engaged in at least two lengthy conferences and a few shorter ones. Finally, in Moore, the testimony of defendant and defense counsel demonstrated as serious a breakdown in the attorney-client relationship as the one in Williams: the defendant had threatened to sue the attorney for malpractice and the attorney joined in the defendant’s motion for substitution of counsel. (Moore, supra, 159 F.3d at pp. 1158-1160, fn. 4.) Again, no disagreement of a similar magnitude was evident here. The facts of these cases convince us that the trial court did not err here. Defendant’s Sixth Amendment rights were not violated.
2. Testimony and Instruction about Defendant’s Refusal to Attend Trial
a. Factual Background
After the jury was sworn and the trial court denied defendant’s second Marsden motion, defendant refused to attend trial. Defendant contends the court erred prejudicially by allowing deputy sheriffs Horton and Cardoza to testify that each had informed defendant on successive days that the trial judge ordered him to be present in court for a possible in-court identification, and that defendant did not appear. He also argues that it was error for the court to instruct the jury at the conclusion of trial as follows. “The defendant has not been present with us during the trial. Please do not speculate as to the reasons for that. However, if the defendant refused a court order to come to court for possible in-court identification, that conduct may show that he was aware of his guilt. If you conclude that the defendant refused such an order, it is up to you to decide its meaning and importance. However, evidence of such refusal cannot prove guilt by itself.” (Cf., Judicial Council of Cal. Crim. Jury Instns. (2006) CALCRIM No. 371.) Defendant objected to the testimony on Evidence Code section 352 grounds that the danger of undue prejudice outweighed its probative value. He objected to the instruction as well.
CALCRIM No. 371, Consciousness of Guilt: Suppression and Fabrication of Evidence, states: “<Alternative A—suppression> [¶] [If the defendant tried to hide evidence or discourage someone from testifying against (him/her), that conduct may show that (he/she) was aware of (his/her) guilt. If you conclude that the defendant made such an attempt, it is up to you to decide its meaning and importance. However, evidence of such an attempt cannot prove guilt by itself.]”
b. Defendant’s Contentions
On appeal, defendant contends the testimony and the instruction violated his federal constitutional right to due process and a fair trial. (People v. Falsetta (1999) 21 Cal.4th 903, 913; Estelle v. McGuire (1991) 502 U.S. 62, 70.) He argues that the testimony and the instruction were constitutionally unfair because the evidence was completely irrelevant and reflected negatively on his character. (McKinney v. Rees (9th Cir. 1993) 993 F.2d 1378.) He argues the evidence did not show he was aware of his own guilt, but only that he was dissatisfied with the court’s rulings.
In addition, he argues that the deputies’ testimony should have been excluded under Evidence Code section 352 because it had no probative value whatsoever on the question of his guilt or innocence, was highly prejudicial and misled the jury. He also argues that the instruction was inherently contradictory; violative of due process because it asked the jury to speculate about the reasons defendant did not come to court; and lacked a legally admissible evidentiary basis for the inference of consciousness of guilt.
c. Analysis
A number of California cases have rejected analogous arguments on similar facts, and we find these cases dispositive of defendant’s claims. For example, in People v. Johnson (1992) 3 Cal.4th 1183, our Supreme Court rejected the defendant’s argument that the admission of evidence about his refusal to participate in a pretrial line-up “denied him due process and violated his privilege against self-incrimination and his rights to counsel and to protection against cruel and unusual punishment.” (Id. at p. 1221.) The court also rejected the defendant’s claim that the trial court committed constitutional error when it instructed the jury that defendant’s refusal to participate in the lineup could be considered by the jury as a circumstance showing consciousness of guilt, but that “ ‘such evidence is not sufficient in itself to prove guilt and its weight and significance, if any, are matters for your consideration.’ ” (Id. at p. 1235.) The court held that since the evidence of the defendant’s refusal to participate in the lineup was properly admitted and supported an inference of consciousness of guilt, “[t]he giving of the instruction … was proper (and beneficial to defendant, to the extent that it made clear the refusal did not, in itself, suffice to establish his guilt).” (Ibid.) The court also rejected the contentions that the instruction improperly “encouraged the jury to examine all of the evidence – without guidance from the trial court – to determine whether any of it demonstrated an attempt to suppress evidence, regardless of whether such a finding was in fact supported by the law or evidence” (ibid.) and that the trial court had “failed to make the preliminary determination that there was evidence in the record which, if believed by the jury, would sufficiently support the desired inference of consciousness of guilt.” (Id. at p. 1236.) The court concluded: “Defendant does not suggest any way in which the jury might have been misled regarding the sort of evidence it could consider as indicating consciousness of guilt. If he believed the instruction required clarification, it was incumbent on him to request it. [Citation.] He did not do so. Reading the instructions as a whole, as the jury itself was directed to do [citations], we conclude they correctly guided the jury’s consideration of the evidence.” (Id. at p. 1236.)
Following Johnson, in People v. Farnam (2002) 28 Cal.4th 107 our Supreme Court held that the admission of evidence of the defendant’s refusal to provide hair and blood samples was proper and did not violate Evidence Code section 352. Citing earlier cases, the court held that “ ‘the refusal of a defendant to provide an exemplar in violation of a court order is admissible evidence of the defendant’s consciousness of guilt.’ ” (Id. at p. 153.) The court also rejected several challenges to the giving of a suppression of evidence instruction, including some based on the constitution. (Id. at p. 165.)
Defendant acknowledges Johnson and several other opinions that have authorized similar consciousness of guilt instructions. (People v. Terry (1970) 2 Cal.3d 362, 395, overruled on other grounds in People v. Carpenter (1997) 15 Cal.4th 312 [escape from jail before trial]; People v. Vargas (1975) 53 Cal.App.3d 516 [out of custody defendant’s failure to appear at trial]; People v. Snyder (1976) 56 Cal.App.3d 195 [same].) Defendant’s attempts to distinguish these cases on the grounds, for example, that the defendants in Vargas and Snyder were out of custody, or that Johnson involved a pretrial, rather than in-court, identification, are wholly unpersuasive. The salient thread in each of these cases is that the defendant engaged in some conduct that could support a permissive inference of consciousness of guilt, and that evidence of his conduct was admissible at trial and the proper subject of instruction.
Based on prior case law, we find that the deputies’ testimony about defendant’s disobedience of a court order to appear in court for a possible in-court identification was relevant and admissible to prove consciousness of guilt. The evidence was not inflammatory and defendant has not demonstrated that it was misleading. Thus, given its probative value, the fact that the evidence may have shown defendant in a poor light, or that it was susceptible of other inferences than the inference of consciousness of guilt, did not make it inadmissible under Evidence Code section 352. Defendant has not shown that the court abused its discretion in admitting the evidence, or that the admission of this evidence violated his due process rights or rendered his trial unfair.
Similarly, we find that the court’s instruction rested on a legally sound evidentiary basis. The instruction was not, in our view, inherently contradictory and did not ask the jury to speculate on the defendant’s reasons for failing to appear in court. Rather, the instruction properly focused the jury’s attention on defendant’s refusal to obey a particular court order, and informed the jury that it was permitted to draw a negative inference from that refusal only, but was not required to do so. The instruction specifically warned the jury not to speculate about defendant’s absence generally. Defendant has not demonstrated that the instruction violated due process. We find no error.
2. Denial of Romero Motion
a. Factual Background
The jury found true that defendant suffered seven prior strike convictions: (1) forcible rape; (2) forcible oral copulation; (3) attempted forcible sodomy; (4) robbery; (5) aggravated assault while personally using a firearm; (6) first degree burglary; and (7) false imprisonment while personally using a firearm. Defense counsel filed a written motion asking the court to exercise its discretion to strike all or some of the prior convictions. He argued that the court was not required to sentence defendant to consecutive life terms, because the current offenses occurred on the same occasion and arose out of the same set of operative facts. He also argued that defendant’s prior convictions were remote, having occurred over 23 years earlier; that he was a juvenile (age 17) at the time; and that all of the offenses were part of a single incident lasting one hour. In addition, he argued that defendant was free of felony convictions for over seven years after his release on parole, although he had been incarcerated for misdemeanors and parole violations during that time, and that he was now 40 years old; and that his current crimes were less serious than his prior crimes.
At the sentencing hearing on September 14, 2006, defendant’s mother appeared and told the court that she had two other sons, one a lieutenant colonel in the Air Force and the other a civil engineer. She said defendant fell out of a window when he was three years old and had brain surgery. He had done very well for the last eight years. He had been in computer school and did well; he had several very good jobs, and he had just been accepted into a carpentry program. She knew something had gone wrong with defendant, but she did not know what. She had been begging for help for him for many years. She had stayed with him and would continue to do so. After hearing further argument from the attorneys, the court denied the Romero motion and imposed three consecutive 25 years to life sentences. The court gave a lengthy statement of its reasons. The court did strike the prior prison term enhancement for the reason that the prior prison term had been factored into its Romero analysis and that to add more punishment would amount to “a kind of vindictiveness.”
On appeal, defendant argues that the trial court should have granted the Romero motion because defendant is 40 years old; all of his prior offenses occurred during a one-hour time frame; his Three Strikes sentence is the functional equivalent of life without parole; and by striking some or all of the prior convictions the court could still have achieved a lengthy sentence.
b. Governing Legal Principles
“[A] court’s failure to dismiss or strike a prior conviction allegation is subject to review under the deferential abuse of discretion standard.” (People v. Carmony (2004) 33 Cal.4th 367, 374 (Carmony).) “In reviewing for abuse of discretion, we are guided by two fundamental precepts. First, ‘ “[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citations.] In the absence of such a showing, the trial court is presumed to have acted to achieve the legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.” ’ Citation. Second, a ‘ “decision will not be reversed merely because reasonable people might disagree. ‘An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.’ ” ’ Citations. Taken together, these precepts establish that 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 pp. 376-377.)
“[I]n ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law, on its own motion, ‘in furtherance of justice’ pursuant to Penal Code section 1385(a), or in reviewing such a ruling, the court in question 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 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.” (People v. Williams (1998) 17 Cal.4th 148, 161.) “Thus, the 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.” (Carmony, supra, 33 Cal.4th at p. 378, fn. omitted.) We now apply these principles to the case at hand.
c. Analysis
Defendant’s contention on appeal is the same one he made below: the trial court could or should have stricken all or some of his prior convictions because of his youth at the time of the prior offenses, his age at the present time, the fact that all of the prior serious and violent felonies occurred over a one-hour period, the fact that a three strikes sentence in this case is effectively a sentence of life without possibility of parole, and the fact that if defendant had been sentenced as a “second striker” he could still have received a lengthy sentence. These arguments do not demonstrate that the court acted irrationally or arbitrarily. The court gave consideration to the factors argued by defendant. It weighed these factors against the number and gravity of defendant’s prior and current offenses. “Where the record demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the trial court’s ruling, even if we might have ruled differently in the first instance.” (People v. Myers (1999) 69 Cal.App.4th 305, 310.) No abuse of discretion has been shown.
3. Consecutive Sentences
Under the Three Strikes law, the court must impose a consecutive sentence for each current offense “not committed on the same occasion, and not arising from the same set of operative facts….” (§§ 667, subds. (c)(6) & (c)(7).) If the current offenses were committed on the same occasion, or arose from the same operative facts, then the court has the discretion to sentence concurrently or consecutively. (People v. Deloza (1998) 18 Cal.4th 585, 595-600 (Deloza).) Here, the trial court imposed consecutive sentences on all three counts because, in its view, the robbery, resisting arrest and receipt of stolen property “were not committed on the same occasion nor did [they] arise out the same operative facts. The crimes and their objectives were predominantly independent of each other. They involved separate acts. They were committed at different times and separate places.” The court added: “Even if that were not the case, and these were committed on the same occasion or arose out of [the] same set of operative facts, I would exercise my discretion to impose the punishment.”
Defendant argues that his current offenses were “committed on the same occasion” within the meaning of section 667, subdivisions (c)(6) and (c)(7) because at the time he resisted arrest he was still fleeing after the robbery and had not reached a place of safety (People v. Cooper (1991) 53 Cal.3d 1158), and because receiving stolen property is a continuing offense. Defendant acknowledges that his argument is foreclosed by our Supreme Court’s opinion in People v. Lawrence (2000) 24 Cal.4th 219 (Lawrence), but he argues that Lawrence was wrongly decided and he is “raising this issue to preserve it for future review in the California Supreme Court.”
In Lawrence, the defendant, who had three prior robbery convictions, stole a bottle of brandy from a store and, in the course of fleeing from pursuing store employees, knocked down an elderly man and ran into a residential backyard, where he assaulted the residents who confronted him. He was convicted of two felonies and the trial court concluded that consecutive sentences were mandatory under the Three Strikes law. The Supreme Court rejected the defendant’s contrary arguments, holding that the defendant’s current felony offenses were not committed on the same occasion and did not arise out of the same operative facts within the meaning of section 667, subdivision (c)(6) and Deloza, because the crimes occurred at separate locations and involved different sets of victims. (Lawrence, 24 Cal.4th at p. 228.) We agree that Lawrence governs this case, and under its reasoning defendant’s crimes did not occur on the same occasion and did not arise out of the same set of operative facts. The trial court did not err in sentencing defendant consecutively.
CONCLUSION
The trial court did not abuse its discretion by denying defendant’s Marsden motion. Defendant’s constitutional rights were not violated by the admission of testimony about his refusal to obey court orders to be present in court for possible identification, or by an instruction on consciousness of guilt. The trial court did not abuse its discretion by declining to strike all or some of defendant’s prior convictions, and it did not err in sentencing defendant to consecutive sentences.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P.J.Duffy, J.