THE PEOPLE v. ANTHONY THOMAS

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Court of Appeal, Fifth District, California.

THE PEOPLE, Plaintiff and Respondent, v. ANTHONY THOMAS, Defendant and Appellant.

F060489

Decided: October 28, 2011

Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French, Tia M. Coronado, Deputy Attorneys General;  Mac Feinstat, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

OPINION

Appellant Anthony Thomas was found guilty by a jury of first degree burglary (Pen.Code, § 460, subd. (a)),1 and first degree robbery (§ 212.5, subd. (a)) in connection with a three-man stick-up of a 17–year–old victim in the victim's home.   On appeal, appellant raises three distinct and unrelated issues, which we find lack merit.   For the reasons discussed below, we affirm the judgment.

Factual and Procedural Background

On the night of August 18, 2009, Rodney D. was at home with his girlfriend and his sister, Gabriella, when his door was kicked down.   Two men entered, and a third remained outside, blocking entry and exit.   One of the men inside held down the two girls, and the other man searched the premises, eventually absconding with Rodney's wallet, which contained some amount of cash.

Rodney and Gabriella identified appellant in photo lineups a few days after the incident.   They also both identified the man standing outside as Dreyton “Dre” Morris.

Kern County deputy sheriffs picked up appellant about a month after the incident and took him to department headquarters for questioning.   Two deputies conducted the interview, with Senior Deputy Casey Brunsell primarily questioning appellant about the August 18 incident.   The interview was video-recorded, although the recording began after the interview had begun.   The interview lasted over an hour, and at one point, the recording stopped because Deputy Brunsell believed the interview had drawn to a close.   Appellant, however, at this point, began discussing the incident at issue, and the interview and recording resumed.   Appellant then admitted he had been present at the scene of the crime.2  The parties stipulated that Miranda 3 warnings were not on the recordings.

Appellant was charged with three counts:  1) first-degree burglary;  2) first-degree robbery;  and 3) felon in possession of a firearm.   It was also alleged that appellant had two prior felony strikes, both of which were serious felonies.

Four eyewitnesses to the incident testified at trial for the prosecution, as did Deputy Brunsell, who investigated the crime, and Deputy Jeffrey Colbert, who testified as a gang expert, and opined that appellant was a member of the Bloods criminal street gang at the time of the incident.

Appellant declined to testify at trial.   He called the two deputies who responded to the scene the night of the incident.   Their testimony contradicted some of the prosecution witnesses' testimony about what they saw that night.   Appellant also called as a witness Jimmy Gonzales, a close friend, who testified as an impeachment witness against Rodney, and also testified that he had known appellant for several years and did not know him to be an active gang member.

A jury convicted appellant of the first two counts, and acquitted him of the third count (felon in possession of a firearm).   The trial court found the allegations of the prior felony convictions true in a bifurcated trial and sentenced appellant on count 2 (robbery) to an upper term sentence of 25 years to life, plus 10 years for enhancements for prior serious felony convictions under section 667, subdivision (a), with the sentence for count 1 (burglary) stayed under section 654.

Discussion 4

I. The trial court properly denied appellant's motion for new counsel.

In this appeal, appellant first asserts the trial court improperly denied his Marsden motion for new counsel.  (People v. Marsden (1970) 2 Cal.3d 118 (Marsden ).)   He contends defense counsel provided ineffective assistance in two ways:  1) by failing to pursue an alleged potential alibi witness;  and 2) representing he was ready for trial despite a possible Miranda issue.   (Miranda, supra, 384 U.S. 436.)

a. Standard of review

“When a defendant seeks substitution of appointed counsel pursuant to [Marsden ], supra, 2 Cal.3d 118[ ], ‘the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of inadequate performance.   The defendant is entitled to relief if the record clearly shows that the appointed counsel is not providing adequate representation or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result.’   [Citations.]  [¶] We review the denial of a Marsden motion for abuse of discretion.  [Citation.]  Denial is not an abuse of discretion ‘unless the defendant has shown that a failure to replace counsel would substantially impair the defendant's right to assistance of counsel.’  [Citation.]”  (People v. Taylor (2010) 48 Cal.4th 574, 599.)

“It is not sufficient to allege merely that the attorney's tactics were poor, or that the case might have been handled more effectively.  [Citations.]  [¶] Rather, the defendant must affirmatively show that the omissions of defense counsel involved a critical issue, and that the omissions cannot be explained on the basis of any knowledgeable choice of tactics.”  (People v. Floyd (1970) 1 Cal.3d 694, 709 (Floyd ), disapproved on other grounds in People v. Wheeler (1978) 22 Cal.3d 258, 287, fn. 36.)

b. Factual background

On January 21, 2010, the trial court held a closed hearing on appellant's Marsden motion for new counsel.   Appellant had three primary complaints at the hearing:  1) counsel was providing insufficient communication and effort, given that appellant was facing a life term;  2) counsel had failed to prepare adequately in light of the recently received video of appellant's interview with law enforcement officers;  and 3) appellant didn't trust counsel generally, but also in part because he felt counsel was colluding with the prosecution, and in part because he distrusted counsel's interpretation of the video of appellant's interview with deputies, which he had not yet seen at the time he made the motion.

c. The prospective alibi witness

During the course of the Marsden hearing, the trial court questioned appellant about what his defense was to the offense, to which appellant responded that his only defense was that he was not present at the crime.   The trial court further questioned appellant about various potential witnesses who would testify to that effect, one of whom was a man named, “Mondo.”   Appellant contends Mondo was an important alibi witness and asserts counsel's failure to investigate or interview him was prejudicial ineffective assistance warranting counsel's replacement prior to trial.

In Floyd, supra, 1 Cal.3d 694, the court noted a codefendant's sole defense was an alibi defense.   His defense counsel called “ ‘only’ three of five possible alibi witnesses,” and did not interview the other two prospective witnesses, which on appeal the codefendant asserted was ineffective assistance of counsel.  (Id. at pp. 709–710.)   The court noted, “the choice of which, and how many, of potential witnesses is precisely the type of choice which should not be subject to review by an appellate court,” (id. at p. 709) and went on to comment, “[w]e know of no rule which requires an attorney to interview all prospective witnesses, particularly when, as here, one of the prospective witnesses was prima facie undesirable.”  (Id. at p. 710).

We find the record indicates the decision not to investigate Mondo further was a valid tactical decision.   Similar to the situation in Floyd, supra, and explained below, defense counsel here interviewed and subpoenaed multiple alibi witnesses to testify in court, and Mondo's testimony would have been cumulative at best.

Appellant attempts to distinguish Floyd, supra, 1 Cal.3d 694, from the circumstances here, and asserts, “that a reasonably competent defense counsel in appellant's case would have interviewed such a potential alibi witness, because the defense did not have any other witnesses to establish that appellant was somewhere other than the crime scene at the time of the robbery.”   This is directly contradicted by the record, which establishes that defense counsel had interviewed and subpoenaed three of the four alibi witnesses appellant knew of, the exception being Mondo.

Moreover, according to appellant, Mondo was the boyfriend of one of the victims who had identified appellant as one of the perpetrators.   It is doubtful Mondo would have been a cooperative witness for appellant.   Beyond this fact, appellant's information concerning Mondo was murky at best.   Appellant could not recall whether Mondo had seen him before or after the incident.   He stated Mondo, carrying a gun, encountered him on Morris's lawn, sometime in the 9:00 o'clock hour, and was looking for Morris.   A 911 call placed toward the end of the incident was time stamped 9:43 p.m. The location appellant asserted Mondo would place him at was only a few blocks from the crime scene.   Based on the facts known to defense counsel, Mondo was a prima facie undesirable witness.

Also, appellant asserts the failure to investigate Mondo prejudiced appellant in such a way that the outcome would have been different had such an error not occurred.   Even assuming Mondo could have and would have testified appellant was not at the scene of the robbery within a timeframe that would exonerate appellant, this testimony would directly contradict appellant's video-recorded statements to deputies where he admitted he was present at the scene of the crime.   We can easily infer that appellant and his counsel presented no alibi defense in the face of appellant's own recorded admission that he was present at the scene.   Deciding to forego interviewing Mondo was a reasonable tactical decision, even before counsel knew of appellant's admission, and in any case, appellant fails to show how he was prejudiced by counsel's failure to further investigate Mondo as an alibi witness.  (See People v. Vines (2011) 51 Cal.4th 830, 876, 878 (Vines ).)

d. Miranda issue

Appellant made no mention of his Miranda concerns until after the court questioned defense counsel about appellant's allegations at the Marsden hearing.   In the course of responding to appellant's allegations, defense counsel noted he had only received and reviewed the DVD of the interview with deputies the day before, and after reviewing it, had discussed its impact on appellant's defense strategy with appellant.   The trial court then sua sponte raised the Miranda issue with defense counsel.   Defense counsel could not recall whether the recording included Miranda warnings.   The trial court gave appellant an opportunity to respond to defense counsel's assertions.   Appellant's response was that counsel did not know about the DVD, and that, “[m]y Miranda Rights wasn't read [sic ].”   The trial court followed up, asking, “[y]ou are saying they were not read to you?”   Appellant responded, “[n]ot about this case right here.” 5  The trial court then gave defense counsel the opportunity to review the DVD again with appellant before continuing with the hearing.   After reviewing the videotape once more and determining definitively no Miranda advisements were recorded, defense counsel told the trial court he already had intended to move to suppress appellant's statements, and already had drafted a motion in limine to that effect.   Defense counsel also noted that the police report summarizing the interview stated appellant had been read his Miranda rights.

Our review of the Marsden hearing transcript indicates appellant's main underlying concern was that counsel had not yet come up with an adequate strategy to counter the videotaped admission that appellant was present at the scene of the crime.   This appears to be appellant's contention again here, as he couches the Miranda issue in the context of asserting defense counsel was inadequate when he responded to the court that he was ready for trial despite the Miranda issue remaining outstanding.

At this point in the trial proceedings, however, defense counsel still had –and utilized – the opportunity ahead of him to attempt to suppress the statements, in the form of a motion in limine requesting either the statements be excluded, or an evidentiary hearing be held under Evidence Code section 402.   That motion in limine had already been drafted as of the time of the Marsden hearing.   It was a reasonable tactical decision for defense counsel to include his motion with the other motions in limine.   To the extent appellant is arguing that defense counsel should have moved earlier to suppress the statements, he provides no authority requiring defense counsel to do so and we have found none.   In any case, since defense counsel did make a motion to exclude the statements, and the trial court conducted an evidentiary hearing to determine whether a Miranda issue existed and the statements needed to be suppressed,6 any error was remedied prior to trial and is otherwise harmless beyond a reasonable doubt.  (See Chapman v. California (1967) 386 U.S. 18, 24 (Chapman ).)

The record shows that the court allowed appellant to explain the reasons for his dissatisfaction with counsel and permitted counsel to respond.   Counsel responded adequately to appellant's allegations and complaints.   The trial court properly exercised its discretion when it denied appellant's Marsden motion, but even if we assume any error, it was harmless.  (See Vines, supra, 51 Cal.4th at p. 878.)

II. The trial court properly permitted introduction of relevant gang evidence

Appellant next asserts the trial court erred in permitting the prosecution to introduce evidence of appellant's alleged gang affiliation.   To the extent appellant is arguing that the trial court erroneously denied his motion in limine to exclude the gang evidence, we disagree.   To the extent appellant is arguing the prosecution failed during trial to substantiate its offer of proof supporting admission of the gang evidence and thus erroneously introduced unduly prejudicial evidence, we also disagree.7

a. Factual and procedural background

In pretrial motions, the prosecution sought to introduce evidence of appellant's membership in the Bloods, a criminal street gang, and the defense sought to exclude such evidence.   The prosecution's offer of proof at the hearing on the motion was that Rodney would testify that appellant and Morris had asked him to join their gang,8 but that he had declined, and that Rodney had concluded the robbery and burglary were conducted essentially in retaliation for this rejection.   The prosecution also stated it intended to offer evidence of past instances where appellant admitted gang affiliation or evidence indicated appellant's gang affiliation.   These past instances included prior arrests in the company of other Bloods, the testimony of a gang expert that the crime was committed with other members of the Bloods, appellant's claims of affiliations with the Bloods at prior bookings, and also gang-related photographs found during a search of appellant's residence conducted in connection with the current offense.

Appellant objected on Evidence Code sections 1101 and 352 grounds.   He argued that the prosecution had previously dropped the gang enhancement it had originally alleged and there was no evidence in the case that the robbery was gang related.   Thus, the gang evidence was speculative of appellant's motive at best, and the prosecution was in fact attempting to smear appellant's character.   Appellant also asserted that even assuming he was a member of a gang in the past, there was no link between his past gang history and this particular robbery, other than Rodney's speculation that he was being punished for some gang-related purpose.

The prosecution admitted nothing was said during the course of the robbery that indicated the perpetrators' motive was gang-related.   The prosecution did note, however, that Rodney could also testify about the last contact he had with appellant, which was fraught with “acrimony” and “friction,” and involved a violent act of appellant and Morris stealing Rodney's bicycle from him, sometime between the attempted gang recruitment and the robbery.

The court explained its reasoning thoroughly and clearly, was in obvious command of the law, and in fact took a short recess during the hearing to review further case law.   The court, in detailing its reasoning, acknowledged that “gang evidence generally” is not necessarily relevant.   The court, however, noted 1) that case law supports admission of evidence of prior animosity and particularly of prior violent conduct between an alleged victim and an alleged defendant – although very prejudicial – to prove a prior animosity or prior disposition by a defendant towards that victim;  and 2) ample case law also supports admission of evidence of gang membership or affiliation, provided it tends to show the motive for the commission of the crime, as the prosecution was alleging.

The trial court then conducted an Evidence Code section 352 analysis, again acknowledging the prejudicial nature of gang membership or motivation, and concluded that, assuming the witnesses testified in accordance with the prosecution's offer of proof or other evidence was produced affecting the same result, there was sufficient evidence to support the prosecution's motive argument and inferences.   The court noted in particular that evidence of previous violent conduct or threatened violent conduct by a defendant against an alleged victim on other occasions circumstantially but permissibly evidenced the likelihood of a commission of a later charged violent crime against the same victim by the same defendant.

The trial court then limited the permissible gang evidence by imposing significant restrictions.   Neither Rodney nor the gang expert could give their opinions that appellant's motive for the charged crimes was the alleged failed gang recruitment or otherwise gang-related.   The trial court required percipient witness testimony as to the prior violent act, the prior contacts with Bloods members, and the prior admissions of gang affiliations by appellant, and only three such prior admissions were permitted.   Prior contacts with gang members could not be described as occurring while any criminal activity was taking place.   The gang expert could testify he relied generally on booking records, street checks, and information of that type, but no details were allowed unless he was discussing the details of one of the three permitted admissions.

During the trial, Rodney identified appellant as one of the perpetrators.   Rodney also testified reluctantly about appellant's gang activity, admitting only that he had told deputies after the incident that appellant and Morris had attempted to recruit him to their gang.   He also testified, however, that appellant and Morris had only unsuccessfully attempted to steal his bicycle, and that had occurred at the same time as the attempted recruitment, not afterward, contrary to what he had led police to believe initially.   Rodney testified the attempted bicycle theft and gang recruitment was the only prior interaction he had with appellant, and that he did not believe the robbery had anything to do with the prior gang recruitment.

Gabriella's testimony at trial conflicted with information she had provided Deputy Brunsell shortly after the incident.   She had told Deputy Brunsell that appellant was one of the perpetrators, and had picked him out of a photo lineup.   She also told him she believed appellant and Morris were Bloods members, and were attempting to start a new gang.   At trial, she asserted she had only picked appellant from the photo lineup because the deputies had subtly suggested to her the person to pick.   She also backpedaled from her previous statement that she knew appellant to be a Bloods member.

Deputy Brunsell testified as to what Rodney and Gabriella had told him after the incident.   He also testified that he had asked Rodney how appellant and Morris had reacted to his rejection of their attempted gang recruitment, and Rodney had told him that appellant and Morris were “angry with him.”

Deputy Colbert, testifying as a gang expert, opined that appellant was an active member of the Bloods at the time of the crime.   He based this opinion on documents he had reviewed, prior bookings, offense reports, street checks, tattoos, the photographs found in the search of appellant's residence, and his training and experience.

b. Standard of review

“[A]s a general rule, evidence of gang membership and activity is admissible if it is logically relevant to some material issue in the case, other than character evidence, is not more prejudicial than probative and is not cumulative.  [Citation.]  Consequently, gang evidence may be relevant to establish the defendant's motive, intent or some fact concerning the charged offenses other than criminal propensity as long as the probative value of the evidence outweighs its prejudicial effect.  [Citations.]”  (People v. Albarran (2007) 149 Cal.App.4th 214, 223–224 (Albarran ).)  “[T]he decision on whether evidence, including gang evidence, is relevant, not unduly prejudicial and thus admissible, rests within the discretion of the trial court.  [Citation.]”  (Id. at pp. 224–225.)   The trial court has broad discretion to determine whether evidence of gang membership is relevant.  (See People v. Champion (1995) 9 Cal.4th 879, 922 (Champion ), abrogated on other grounds by People v. Combs (2004) 34 Cal.4th 821, 860.)

“ ‘Where, as here, a discretionary power is statutorily vested in the trial court, its exercise of that discretion “must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.  [Citations.]”  [Citation.]’  [Citations.]  It is appellant's burden to establish an abuse of discretion and prejudice.  [Citation.]”  (Albarran, supra, 149 Cal.App.4th at p. 225.)

c. Analysis

The trial court expressly and reasonably exercised its discretion and properly concluded the probative value of the evidence substantially outweighed any potential prejudicial effect in permitting introduction of the gang evidence within limited parameters.  (See Champion, supra, 9 Cal.4th at pp. 922–923.)   We find no abuse of discretion.   Even assuming there was error, however, any such error was harmless under any standard of review and there was no miscarriage of justice given the strength of the evidence.  (See People v. Doolin (2009) 45 Cal.4th 390, 438–439.)

“Evidence of the defendant's gang affiliation ․ can help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime.  [Citations.]”  (People v. Hernandez (2004) 33 Cal.4th 1040, 1049.)   Moreover, “[a]though evidence of a defendant's gang membership creates a risk the jury will improperly infer the defendant has a criminal disposition and is therefore guilty of the offense charged – and thus should be carefully scrutinized by trial courts – such evidence is admissible when relevant to prove identity or motive, if its probative value is not substantially outweighed by its prejudicial effect.  [Citation.]”  (People v. Carter (2003) 30 Cal.4th 1166, 1194.)

The trial court did not err in denying appellant's motion to exclude gang evidence.   Gang evidence here was relevant to motive.   The trial court thoroughly scrutinized the proffered evidence and exercised its discretion reasonably and purposefully, with an explicit understanding of the prejudicial nature of gang evidence.   The trial court, moreover, limited the extent of potential prejudice when it imposed its restrictions.   The prosecution offered the gang evidence to support its theory that appellant committed the crime in response to Rodney's rejection of recruitment into appellant's gang.   Evidence that appellant was an active member of a gang, that he had previously tried to recruit Rodney into his gang, and that there had been another intervening incident where appellant and Morris had acted out against Rodney, assuming those facts to be true at the time of the pretrial hearing, were relevant and probative as to appellant's motive, having a “tendency in reason to prove” it.  (Evid.Code, § 210.)

Although at trial Rodney's testimony ended up not being as clear as the prosecution had made it out to be at the pretrial hearing, the main points of the prosecution's offer of proof were raised and substantiated.   The prosecution's main points were that 1) appellant was a member of a gang;  2) a few weeks prior to the robbery, appellant and Morris had asked Rodney to join a gang they were affiliated with and Rodney had refused;  and 3) Rodney, appellant, and Morris had also had a prior violent encounter involving Rodney's bicycle, sometime between the attempted recruitment and the robbery.

At trial, Rodney testified he told deputies that appellant and Morris had attempted to recruit him into their gang, that he had refused, and that they had attempted to steal his bicycle.   Rodney was reluctant to testify at trial.   Deputy Brunsell testified as to what Rodney had told him after the incident.   Although no violence was explicitly asserted at trial, in our view the prosecution's offer of proof was substantiated by evidence presented at trial.

Even if we assume for the sake of argument the trial court should have excluded any or all of the gang evidence, any such error is harmless under any standard.   The perpetrators were not wearing masks.   Rodney knew appellant from at least one prior interaction.   Rodney identified appellant, albeit reluctantly, at trial.   Deputy Brunsell testified that Rodney and Gabriella identified appellant to him a few days after the incident.   Appellant admitted to deputies that he had been present at the crime.   This admission was video recorded and played back for the jury, who also had a transcript of appellant's admission.   Gonzales testified that appellant and Rodney knew each other previously.   Even had the gang evidence been excluded from the trial entirely, it is beyond a reasonable doubt the jury would have reached the same conclusion.  (See Chapman, supra, 386 U.S. at p. 24.)

III. The trial court properly exercised its discretion to decline to strike appellant's prior felony conviction

Appellant asserts the trial court abused its discretion when it declined to strike one of his prior convictions that placed him within the three strikes statutory scheme.

(§§ 667, subds.(b)-(i)  & 1170.12, subds. (a)-(d).)  We disagree.

A trial court's discretion to strike prior felony conviction allegations is limited to those instances “in furtherance of justice.” (§ 1385, subd. (a);  People v. Romero (1996) 13 Cal.4th 497, 530 (Romero ).)   Exercise of such discretion is subject to review for abuse.  (Romero, supra, 13 Cal.4th at p. 530.)   A court's refusal to strike a prior conviction allegation is also subject to review under the deferential abuse of discretion standard.   (People v. Carmony (2004) 33 Cal.4th 367, 374 (Carmony ).)  “[A] trial court does not abuse its discretion unless its [sentencing] decision is so irrational or arbitrary that no reasonable person could agree with it.”   (Id. at p. 377.)

Furthermore, the three strikes 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.)   Thus, a court abuses its discretion in failing to strike a prior felony conviction allegation in only limited circumstances, such as when it was not aware of its discretion to dismiss, considered impermissible factors in declining to dismiss, or failed to correct an arbitrary, capricious or patently absurd result of application of the three strikes law under the specific facts of a particular case.   (Ibid.)

In considering a defendant's invitation to strike a prior felony conviction allegation, both the trial court and the reviewing 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 scheme's spirit, in whole or in part.”  (People v. Williams (1998) 17 Cal.4th 148, 161 (Williams ).)

The purpose of the three strikes law is expressly set forth within its provisions:  “to ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of serious and/or violent felony offenses.” (§ 667, subd. (b);  see People v. Strong (2001) 87 Cal.App.4th 328, 338 (Strong ).)   Accordingly, “extraordinary must the circumstances be 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.”  (Strong, supra, 87 Cal.App.4th at p. 338.)  “[T]he circumstances where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme must be even more extraordinary.”  (Carmony, supra, 33 Cal.4th at p. 378.)

We fail to find such extraordinary circumstances here.   Appellant contends the trial court focused solely on appellant's criminal history and the nature of the current offense, and failed to 1) recognize the remoteness of the strikes, or 2) consider a number of facets of appellant's background and future prospects, namely that he was employable given his prior construction industry experience from 2001 to 2005, and was important to his family, which included several small children.   We disagree with both assertions.

The trial court set forth the legal standard for its exercise of discretion, described in the record appellant's criminal history and the nature of his past offenses, and concluded that appellant was not outside the scheme or spirit of the three strikes law.   As to remoteness, the court specifically noted “the chronological time period of merely 18 years over which [his criminal history] extend[s].”  We also note, as did the trial court, that although the last strike – an attempted robbery involving holding a gun to the victim's head while he and another individual robbed the victim – occurred in 1997, appellant went on to violate parole multiple times before ultimately being discharged in May 2005.   After his discharge from parole, he suffered a misdemeanor assault with a deadly weapon conviction in 2009.   Remoteness is not a significant factor placing appellant outside the spirit of the three strikes law.  (See People v. Gaston (1999) 74 Cal.App.4th 310, 321[“[R]emoteness in time of the ․ strike priors is not significant in light of [defendant's] continuous crime spree, which has substantially spanned his entire adult life.”].)

As to appellant's background and characteristics, the trial court noted on the record it had read the probation report.   The probation report listed appellant's children, and their mothers.   The report also set forth appellant's employment history.   Appellant also asserts the court failed to consider appellant's age or alternate sentences based on the assumption the court would strike a prior conviction.  “The court is presumed to have considered all of the relevant factors in the absence of an affirmative record to the contrary.   [Citation.]”  (People v. Myers (1999) 69 Cal.App.4th 305, 310 (Myers );  see also Carmony, supra, 33 Cal.4th at p. 378.)   Thus “[w]here 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.”  (Myers, supra, 69 Cal.App.4th at p. 310.)

The record before us demonstrates the court clearly understood its discretionary authority and weighed the competing facts to reach a reasonable conclusion in conformity with the spirit of the law.   Appellant has failed to show the trial court's conclusion was an irrational or arbitrary exercise of discretion.

Disposition

The judgment is affirmed.

Franson, J.

WE CONCUR:

Cornell, Acting P.J.

Poochigian, J.

FOOTNOTES

FN1. All further statutory references are to the Penal Code unless otherwise indicated..  FN1. All further statutory references are to the Penal Code unless otherwise indicated.

FN2. The transcript of the recording of the interview included the following excerpts:“Brunsell:  ․ So you know Rodney [D.]“[Appellant]:  Come on man get me out of this.”“Brunsell:  Were you there with them when the robbery took place?“[Appellant]:  Yeah.” ․ [Fn. contd.]“Brunsell:  ․ So you, Dreyton and this third dude go over to the house and rob Rodney Davis of an ounce of weed is what you're telling me.   And there wasn't any guns involved.“[Appellant]:  There was no guns involved, no.“Brunsell:  ․ Who else was with Rodney at the time of the incident?“[Appellant]:  (sighs) I think those two girls were.”.  FN2. The transcript of the recording of the interview included the following excerpts:“Brunsell:  ․ So you know Rodney [D.]“[Appellant]:  Come on man get me out of this.”“Brunsell:  Were you there with them when the robbery took place?“[Appellant]:  Yeah.” ․ [Fn. contd.]“Brunsell:  ․ So you, Dreyton and this third dude go over to the house and rob Rodney Davis of an ounce of weed is what you're telling me.   And there wasn't any guns involved.“[Appellant]:  There was no guns involved, no.“Brunsell:  ․ Who else was with Rodney at the time of the incident?“[Appellant]:  (sighs) I think those two girls were.”

FN3. Miranda v. Arizona (1966) 384 U.S. 436 (Miranda )..  FN3. Miranda v. Arizona (1966) 384 U.S. 436 (Miranda ).

FN4. As a preliminary matter, we note that appellant's opening brief was submitted in violation of California Rules of Court, rule 8.204(c)(1), which limits briefing produced on a computer to 14,000 words, including footnotes, unless the presiding justice has permitted a longer brief for good cause.   No such permission was sought, nor granted here, where appellant submitted and certified his brief to be 17,957 words in length.   We do not take such disregard of the rules lightly, but chose in this instance to forego returning it to appellant for revisions in compliance with the rules.  (Cal. Rules of Court, rule 8.204(e).).  FN4. As a preliminary matter, we note that appellant's opening brief was submitted in violation of California Rules of Court, rule 8.204(c)(1), which limits briefing produced on a computer to 14,000 words, including footnotes, unless the presiding justice has permitted a longer brief for good cause.   No such permission was sought, nor granted here, where appellant submitted and certified his brief to be 17,957 words in length.   We do not take such disregard of the rules lightly, but chose in this instance to forego returning it to appellant for revisions in compliance with the rules.  (Cal. Rules of Court, rule 8.204(e).)

FN5. We note that during the interview with deputies appellant was questioned as to multiple crimes, including the one at issue.   The other deputy present questioned appellant about any knowledge he may have had about a shooting that had occurred in the past year.   An evidentiary hearing was held concerning appellant's assertion he was not read his Miranda rights (as discussed, infra ), but we also note tangentially that the United States Supreme Court has held, “a suspect's awareness of all the possible subjects of questioning in advance of interrogation is not relevant to determining whether the suspect voluntarily, knowingly, and intelligently waived his Fifth Amendment privilege.”  (Colorado v. Spring (1987) 479 U.S. 564, 577.).  FN5. We note that during the interview with deputies appellant was questioned as to multiple crimes, including the one at issue.   The other deputy present questioned appellant about any knowledge he may have had about a shooting that had occurred in the past year.   An evidentiary hearing was held concerning appellant's assertion he was not read his Miranda rights (as discussed, infra ), but we also note tangentially that the United States Supreme Court has held, “a suspect's awareness of all the possible subjects of questioning in advance of interrogation is not relevant to determining whether the suspect voluntarily, knowingly, and intelligently waived his Fifth Amendment privilege.”  (Colorado v. Spring (1987) 479 U.S. 564, 577.)

FN6. Deputy Brunsell testified at the evidentiary hearing that he read appellant his Miranda rights in the interview room.   Appellant testified that he was never advised of his rights during the interview.   Appellant made no assertion his statements were coerced.   The trial court found sufficient evidence established appellant was advised of his Miranda rights and there was a voluntary, knowing, and intelligent waiver of those rights.   The statements were thus properly allowed in at trial.  (See People v. Memro (1995) 11 Cal.4th 786, 827.).  FN6. Deputy Brunsell testified at the evidentiary hearing that he read appellant his Miranda rights in the interview room.   Appellant testified that he was never advised of his rights during the interview.   Appellant made no assertion his statements were coerced.   The trial court found sufficient evidence established appellant was advised of his Miranda rights and there was a voluntary, knowing, and intelligent waiver of those rights.   The statements were thus properly allowed in at trial.  (See People v. Memro (1995) 11 Cal.4th 786, 827.)

FN7. We are unclear as to the remedy appellant requests with respect to the prosecution's asserted failure to substantiate its offer of proof during trial.   To the extent appellant argues any or all of the elicited gang evidence should have been excluded or stricken from the record, we note that issue is waived since defense counsel failed to object to the general introduction of the gang evidence during trial.  (See People v. Letner (2010) 50 Cal.4th 99, 159–160 [defendants required to object at trial to introduction of certain evidence, notwithstanding their prior motion in limine to exclude the evidence];  People v. Holloway (2004) 33 Cal.4th 96, 133 [“A tentative pretrial evidentiary ruling, made without fully knowing what the trial evidence would show, will not preserve the issue for appeal if the appellant could have, but did not, renew the objection or offer of proof and press for a final ruling in the changed context of the trial evidence itself.  [Citations.].”];  cf.  People v. Morris (1991) 53 Cal.3d 152, 190 [motion in limine sufficient to preserve an objection for appeal where (1) a specific legal ground for exclusion is advanced and then raised on appeal;  (2) the motion is directed to a particular, identifiable body of evidence;  and (3) the motion is made at a time before or during trial when the trial judge can determine the evidentiary question in its appropriate context].)   In the interests of judicial economy and to prevent an ineffective assistance of counsel claim, we address appellant's claim on its merits, infra..  FN7. We are unclear as to the remedy appellant requests with respect to the prosecution's asserted failure to substantiate its offer of proof during trial.   To the extent appellant argues any or all of the elicited gang evidence should have been excluded or stricken from the record, we note that issue is waived since defense counsel failed to object to the general introduction of the gang evidence during trial.  (See People v. Letner (2010) 50 Cal.4th 99, 159–160 [defendants required to object at trial to introduction of certain evidence, notwithstanding their prior motion in limine to exclude the evidence];  People v. Holloway (2004) 33 Cal.4th 96, 133 [“A tentative pretrial evidentiary ruling, made without fully knowing what the trial evidence would show, will not preserve the issue for appeal if the appellant could have, but did not, renew the objection or offer of proof and press for a final ruling in the changed context of the trial evidence itself.  [Citations.].”];  cf.  People v. Morris (1991) 53 Cal.3d 152, 190 [motion in limine sufficient to preserve an objection for appeal where (1) a specific legal ground for exclusion is advanced and then raised on appeal;  (2) the motion is directed to a particular, identifiable body of evidence;  and (3) the motion is made at a time before or during trial when the trial judge can determine the evidentiary question in its appropriate context].)   In the interests of judicial economy and to prevent an ineffective assistance of counsel claim, we address appellant's claim on its merits, infra.

FN8. It is unclear as to whether appellant and Morris wanted Rodney to join the Bloods, or a new gang they were forming..  FN8. It is unclear as to whether appellant and Morris wanted Rodney to join the Bloods, or a new gang they were forming.