People v. Smith CA2/1 ( 2015 )


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  • Filed 1/9/15 P. v. Smith CA2/1
    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
    publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
    or ordered published for purposes of rule 8.1115.
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    SECOND APPELLATE DISTRICT
    DIVISION ONE
    THE PEOPLE,                                                          B250674
    Plaintiff and Respondent,
    (Los Angeles County
    Super. Ct. No. MA052542)
    v.
    DEANTE SMITH,
    Defendant and Appellant.
    Appeal from a judgment of the Superior Court of Los Angeles County. Kathleen
    Blanchard, Judge. Affirmed with directions.
    William Hassler for Defendant and Appellant.
    Kamala D. Harris, Attorney General, Lance E. Winters, Senior Assistant Attorney
    General, Paul M. Roadarmel, Jr., and Brendan Sullivan, Deputy Attorneys General, for
    Plaintiff and Respondent.
    ____________________
    Defendant Deante Smith appeals from his conviction and sentencing for two
    counts of assault with a firearm and two counts of battery causing serious bodily injury,
    along with findings on associated allegations that he had personally inflicted great bodily
    injury, that he personally used a firearm, and he had two prior serious of violent felony
    convictions. His appeal challenges (1) the trial court’s exclusion of certain expert
    opinion testimony offered to raise doubt as to the victims’ eyewitness identification of
    him; (2) the court’s failure to instruct the jury on the lesser included offense of simple
    assault; and (3) the excessive length of the sentence imposed by the court. Respondent
    asks that we order clerical corrections to the Abstract of Judgment. We affirm the
    judgment.
    The Facts1
    Shortly after one o’clock in the morning of March 31, 2011, Donald and Melissa
    Howard arrived unannounced at the Lancaster home of Mary Pryzballa, a long-time
    friend of Melissa.2 The purpose of the Howards’ early-morning visit was to talk with
    Pryzballa about the passing of Melissa’s aunt the previous evening. They parked in the
    driveway, went to the porch, and knocked on the door of the unlit house. Hearing no
    response, they returned to their car.
    As they prepared to leave, appellant came from the house. When Donald asked
    him whether his wife could speak with Pryzballa, appellant reentered the house.3 He
    again emerged a few seconds or minutes later, holding a gun. He went to Donald (who
    1
    The facts are recited consistent with the presumption that the court and jury
    found all facts supported by substantial evidence that are consistent with the verdicts and
    judgment. (Stewart v. Langer (1935) 
    9 Cal.App.2d 60
    , 61.) Facts not relevant to the
    issues raised by the appeal are omitted.
    2
    The record contains various spellings of Ms. Pryzballa’s name (e.g., Pryzbala,
    Pryzbella, Przybyla). We adopt the spelling used in the parties’ briefs and most
    frequently in the transcript of proceedings.
    3
    For simplicity, Mr. and Ms. Howard are identified by their given names.
    2
    was by then sitting in the driver’s seat of the car with the door open) and attacked Donald
    with one “straight punch” to his face. Appellant then went to the passenger side of the
    car where Melissa was standing, hitting her on the head and knocking her to the ground.
    Donald did not see a gun, but felt that a gun was used to hit him. Melissa saw
    appellant approach with a gun, but did not see appellant hitting Donald. Donald revived
    his wife and helped her into the car, and she called 911 as they drove away. Donald told
    the police in that call that their attacker had used a gun.
    After meeting the police and receiving some medical aid, Donald directed the
    police to the site of the attack. In a search of the house they found a photograph of
    appellant wedged in the frame of a bedroom mirror, with a note on the back: “To my
    future hopefully? Mary Smith. From Mr. D, the real #1. Keeping it 100% for life.”
    When showed the photo, Donald and Melissa both identified its subject as their attacker.
    (They had met appellant at Pryzballa’s home about a month before the attack, though
    they remembered his name only as “D”.) They each also identified appellant from a
    photo array about two weeks after the attack.
    The jury was presented with photos of Donald and Melissa taken after the attacks.
    The blow to Donald’s nose and forehead left a painful cut requiring stitches and leaving a
    scar. Melissa could not recall her injuries in detail, but said her beating left her with
    painful bruises on her face, chest, buttocks, ankle, and arm.
    The police found a car in Pryzballa’s garage that she told them was appellant’s,
    and that there were indications in the backyard someone had used a trashcan to climb
    over a wall. Appellant was arrested in Las Vegas, Nevada, about a year and a half later.
    Pryzballa testified for the defense, most notably that appellant was not present in
    her home the night of the attacks, that the car in her garage was not registered to him, and
    that she knew him only as a neighbor. The defense also presented the expert testimony of
    a university professor of psychology concerning limitations of eyewitness testimony and
    lineup identifications.
    3
    Procedural History
    An amended information filed April 9, 2013, charged appellant in counts 1 and 2
    with assault with a firearm on Donald and Melissa, respectively (Pen. Code, § 245, subd.
    (a)(2)),4 in count 3 with assault with a deadly weapon on Melissa (§ 245, subd. (a)(1));
    and in counts 4 and 5 with battery causing serious bodily injury on Donald and Melissa,
    respectively (§ 243, subd. (d)). Special allegations alleged that as to counts 1 through 3
    appellant personally inflicted great bodily injury (§ 12022.7, subd. (a)), causing the
    offenses to be serious felonies within the meaning of section 1192.7, subdivision (c)(8);
    and that he personally used a firearm in committing all the charged offenses (§ 12022.5,
    subd. (a)), causing the offenses to be serious felonies within the meaning of section
    1192.7, subdivision (c)(8). The information alleged also that appellant had two prior
    convictions for serious or violent felonies under the “Three Strikes” law, section 667,
    subdivisions (b) through (i), and section 1170.12, subdivisions (a) through (d), and that
    he had two prior serious felony convictions under section 667, subdivision (a)(1), section
    667.5, subdivision (b), and section 1203, subdivision (e)(4).
    The trial court granted appellant’s motion for acquittal on count 3—assault with a
    deadly weapon against Melissa (§ 245, subd. (a)(1))—before the case was submitted to
    the jury, based on insufficiency of the prosecution evidence. (§ 1118.1.)
    The jury found appellant guilty on counts 1, 2, 4, and 5, and found the special
    allegations to be true. Appellant having waived a jury trial on the Three Strikes and
    serious felony prior conviction allegations, after a court trial of the allegations the court
    found them to be true. The court sentenced Smith to imprisonment for 81 years to life.5
    Appellant filed a timely appeal from the judgment.
    4
    Statutory references are to the Penal Code unless otherwise specified.
    5
    The court imposed sentences of 32 and 49 years to life on counts 1 and 2,
    respectively, and of 29 years (stayed under § 654) on each of counts 4 and 5. It also
    imposed fines and fees, and awarded custody credits in amounts not relevant to this
    appeal.
    4
    Discussion
    I.     The Trial Court Did Not Unduly Limit The Testimony Of Appellant’s Expert
    Witness Regarding Eyewitness And Lineup Identifications.
    Appellant offered the testimony of Mitchell Eisen, Ph.D., a professor of
    psychology who served as Director of a graduate program in forensic psychology at
    California State University, Los Angeles. The subject of Dr. Eisen’s intended testimony
    was the factors that make lineups suggestible, and affect the accuracy of eyewitness
    identifications, including “that this particular photo line-up was suggestive in nature and
    how that will have a carry over affect [sic].”
    The trial court denied the prosecution’s motion to exclude the expert’s testimony
    altogether. But it ruled also that the testimony could not include hypothetical questions
    based on the evidence in this case. “You can ask him what makes a suggestive line-up;
    what makes it suggestive. You can ask him about things like that. You cannot ask him
    hypotheticals; that is absolutely not proper with an identification witness expert.”
    Dr. Eisen testified on direct examination, without objection, that human memory is
    imperfect; that people fill the inherent gaps in their memories with inferences that fit; that
    such reconstructed memories are reinforced when witnesses discuss among themselves
    the details of an incident they are trying to recall; and that the time a witness is exposed
    to a face affects how well he or she can pick the face from a group. Dr. Eisen went on to
    testify how system variables (for example, whether the witness is shown an individual
    photo or a group of photos) can affect the reliability of the identification. He testified
    why it is important to admonish eyewitnesses against unwarranted assumptions about
    whether the perpetrator is among those being viewed; how familiarity with the suspect
    can affect an identification; how “unconscious transference” (in which a witness
    substitutes a familiar face for the imperfectly recalled face of a perpetrator of a crime)
    affects eyewitness identifications; the nature and examples of suggestive identification
    procedures that affect the reliability of the identification; and the fact that once a person
    has made an identification, the person is likely over a period of time to become more
    certain of his or her identification. He testified also that his testimony does not involve
    5
    review of any evidence concerning the specific facts of the case; his role is to testify to
    the broad science of identification, rather than the likelihood that any particular witness’s
    identification is right or wrong. “That’s what the jury does . . . .”
    Appellant challenges the trial court’s exclusion of testimony involving
    hypothetical questions embodying the facts in this case, arguing that he should have been
    permitted to use such questions, as is generally permitted with respect to (for example)
    the testimony of a gang expert. The exclusion of such evidence, he contends, deprived
    him of his fundamental due process right to present evidence in his defense. We review
    the challenged ruling for abuse of discretion. (People v. McDonald (1984) 
    37 Cal.3d 351
    , 376, overruled on other grounds in People v. Mendoza (2000) 
    23 Cal.4th 896
    , 914;
    Amtower v. Photon Dynamics, Inc. (2008) 
    158 Cal.App.4th 1582
    , 1599 [“On review, we
    may not disturb the trial court’s ruling on the admissibility of opinion evidence absent an
    abuse of discretion”].)
    Expert opinion testimony is admissible when its subject is sufficiently beyond the
    scope of common experience to be of assistance to the trier of fact. (Evid. Code, § 801,
    subd. (a); People v. McDonald, supra, 37 Cal.3d at p. 367.) In People v. McDonald,
    supra, our Supreme Court held that “in the appropriate case,” a trial court’s exclusion of
    expert testimony concerning eyewitness identification would constitute error: “When an
    eyewitness identification of the defendant is a key element of the prosecution’s case but
    is not substantially corroborated by evidence giving it independent reliability, and the
    defendant offers qualified expert testimony on specific psychological factors shown by
    the record that could have affected the accuracy of the identification but are not likely to
    be fully known to or understood by the jury, it will ordinarily be error to exclude that
    testimony.” (Id. at p. 377.) However, “the decision to admit or exclude expert testimony
    on psychological factors affecting eyewitness identification remains primarily a matter
    within the trial court’s discretion.” (Ibid.; People v. Sanders (1995) 
    11 Cal.4th 475
    , 509.)
    Here, when appellant offered the testimony of a qualified expert on the specific
    psychological factors that could affect the accuracy of the eyewitness identifications in
    this case, the court ruled the evidence admissible and denied the prosecution’s motion
    6
    seeking its exclusion. But the court did not permit the witness to go beyond his
    explanation of the psychological factors that could affect the accuracy of the eyewitness
    identifications in this case, to address hypothetical questions based on the facts of this
    case—presumably including (as counsel explained to the court) the indications “that this
    particular photo line-up was suggestive in nature and how that will have a carryover
    affect [sic].”6
    Appellant’s claim of error therefore is not that the trial court precluded his expert
    from explaining the psychological factors that could have affected the accuracy of the
    witnesses’ identification of him as their attacker; his testimony on those subjects was
    admitted in some detail. Rather, appellant’s claim is that the expert was not permitted to
    tell the jury his own opinion about the reliability of Donald’s and Melissa’s
    identifications of appellant, based on the various psychological factors about which he
    had been permitted to testify.
    When eyewitness identification is a key element of the prosecution’s case, and it is
    not substantially corroborated by other evidence, the exclusion of expert opinion
    testimony concerning the factors affecting such identifications will ordinarily be error.
    (People v. Jones (2003) 
    30 Cal.4th 1084
    , 1111-1112; People v. McDonald, supra, 37
    Cal.3d at p. 377.) However, the court does not abuse its discretion by excluding expert
    opinion testimony where the challenged eyewitness identification testimony is
    unequivocal and consistent, is corroborated by multiple witnesses, and is not the only
    evidence linking defendant to the crime. (People v. Sanders, 
    supra,
     11 Cal.4th at pp.
    509-510.) The record in this case meets these criteria.
    6
    An offer of proof is required of a party offering challenged evidence, addressing
    “[t]he substance, purpose, and relevance of the excluded evidence” (Evid. Code, § 354,
    subd. (a)), and specifying the evidence to be produced. (Bowman v. Wyatt (2010) 
    186 Cal.App.4th 286
    , 328-329.) Counsel’s quoted explanation to the trial court—the closest
    he came to identifying the nature and content of the evidence he sought to present—falls
    far short of the required offer of proof, for it leaves the trial court (and this court) with
    little information on which to judge the extent to which it might (or might not) assist the
    jury in evaluating the reliability of the identifications.
    7
    Donald’s and Melissa’s identification of appellant as their attacker was immediate,
    unequivocal, and consistent. Appellant was not unknown to Donald and Melissa the
    night of the attack. They had been introduced to appellant by Pryzballa at her home, and
    had spent about 15 minutes in his presence during a visit about a month before the attack.
    They therefore recognized him when he emerged from Pryzballa’s door the night of the
    attack. They both immediately identified appellant as their attacker when they were
    showed his photo about an hour after the attack. They both again identified appellant
    without hesitation from a photo array about two weeks later. And they identified him
    again at trial.
    A number of other pieces of evidence tended to corroborate appellant’s presence at
    Pryzballa’s home that night, and his identity as Donald’s and Melissa’s attacker. In their
    911 call to the police minutes after the attack, Donald and Melissa identified appellant as
    “D,” the name they recalled from having earlier met him. That is the name by which
    appellant had identified himself on the back of the photo the police later found on
    Pryzballa’s mirror, and is the initial letter of appellant’s given name. In addition,
    Pryzballa told the police that night that the car in her garage belonged to appellant. (See
    People v. Jones, 
    supra,
     30 Cal.4th at pp. 1111-1112 [exclusion of expert opinion
    testimony concerning eyewitness identifications is justified when other evidence in case
    substantially corroborates identification of the defendant]; People v. Sanders, 
    supra,
     11
    Cal.4th at p. 510 [trial court did not abuse discretion by excluding expert opinion
    testimony on eyewitness identification].)
    Expert opinion is not objectionable merely because it embraces an ultimate issue.
    (Evid. Code, § 805.) But an expert’s admissible testimony must be limited to “a subject
    that is sufficiently beyond common experience that the opinion of an expert would assist
    the trier of fact.” (Evid. Code, § 801, subd. (a).) “‘“Expert opinion is not admissible if it
    consists of inferences and conclusions which can be drawn as easily and intelligently by
    the trier of fact as by the witness.”’” (Amtower v. Photon Dynamics, Inc., supra, 158
    Cal.App.4th at p. 1598; People v. Valdez (1997) 
    58 Cal.App.4th 494
    , 506; People v.
    Torres (1995) 
    33 Cal.App.4th 37
    , 47 [expert opinions regarding defendant’s guilt or
    8
    innocence are inadmissible because trier of fact is as competent as witness to draw
    inferences and conclusions from the evidence].) “[W]hen an expert’s opinion amounts to
    nothing more than an expression of his or her belief on how a case should be decided, it
    does not aid the jurors, it supplants them.” (Summers v. A. L. Gilbert Co. (1999) 
    69 Cal.App.4th 1155
    , 1183.)
    In evaluating and weighing the probative value of the proffered evidence against
    its potential for prejudice and undue consumption of time, the trial court is entitled to
    (and should) consider the extent to which the additional testimony may or may not assist
    the jury in its evaluation of the eyewitness identifications. Here, the trial court applied
    Evidence Code section 352 to bar the witness from presenting the jury with his opinions
    on those subjects, apparently concluding that the probative value of the evidence was
    outweighed by its potential for prejudice and undue consumption of time.
    In People v. Page (1991) 
    2 Cal.App.4th 161
     (Page), the court was faced with
    circumstances closely analogous to those in the case at hand. In Page, the defendant was
    tried for murder, based in part on a confession he had given to the police. The trial court
    admitted the testimony of an expert psychologist for the defense, concerning factors that
    can make a person vulnerable to suggestion and lead him to give an inaccurate statement
    in an interrogation setting. But much like the challenged ruling in the case at hand, the
    court excluded the expert’s proffered testimony specifically relating these principles to
    the statements the defendant had given to the police, and expressing his opinion
    concerning the confession’s reliability in light of the circumstances shown by the
    evidence. (Id. at p. 179.) On appeal, the court affirmed the exclusion of that testimony.
    The court’s analysis in Page is instructive here. There, the expert psychologist
    was permitted to testify at length about the factors that may affect the reliability of a
    confession. As in the case at hand, there was no blanket exclusion of evidence
    concerning the relevant circumstances—in Page, the circumstances under which the
    defendant had confessed; in the case at hand, the circumstances under which Donald and
    Melissa had each identified appellant as their attacker. Here, Professor Eisen testified at
    length concerning how memory works and various factors that tend to influence
    9
    eyewitnesses to mistakenly identify the perpetrators of traumatic events, to be misled by
    identifications given by others, and to erroneously cling to their earlier mistaken
    identifications. In each case, this testimony was admissible to present to the jury a body
    of information that is sufficiently beyond common experience that the opinion of an
    expert on the subject would assist the trier of fact. (People v. McDonald, supra, 37
    Cal.3d at p. 369; Page, supra, 2 Cal.App.4th at pp. 187-188.)
    So too, however, here as in Page, the trial court was justified in excluding
    testimony going beyond information that might be helpful to the trier of fact in evaluating
    the evidence presented at trial, and that would instead have told the jury how it should
    apply that general information to the evidence. Here, as in Page, the trial court was
    justified in concluding that the testimony given by the experts had sufficiently educated
    the jury regarding the applicable general principles, such that “‘the factual issues in the
    case [had] become ones that the jurors can answer as easily as the expert.’” (Page, supra,
    2 Cal.App.4th at p. 188.) “In other words, an expert’s thorough description of the general
    principals to be applied in a given case may make additional (and more specific) expert
    testimony superfluous.” (Ibid.) “Having been educated concerning those factors” in
    Page, “the jurors were as qualified as the professor to determine if those factors played a
    role in [the defendant’s] confession, and whether, given those factors, his confession was
    false.” (Id. at p. 189.)
    In the case at hand just as in Page, having been educated concerning the factors
    that lead eyewitnesses to make and cling to erroneous identifications, “the jurors were as
    qualified as the professor to determine if those factors played a role” in Donald’s and
    Melissa’s identification of appellant as their attacker. (Page, supra, 2 Cal.App.4th at p.
    189.) The expert’s answers to hypothetical questions that would merely express the
    inferences and conclusions the witness would draw from the evidence—inferences and
    conclusions that the jury might as easily itself draw—are not necessary or helpful.
    “‘Where the jury is just as competent as the expert to consider and weigh the evidence
    and draw the necessary conclusions, then the need for expert testimony evaporates.’”
    (People v. Vang (2011) 
    52 Cal.4th 1038
    , 1054.)
    10
    The expert witness in this case having educated the jury concerning the factors
    that lead eyewitnesses to make and cling to erroneous identifications, the trial court did
    not abuse its discretion when it prevented him from further informing the jury about how
    he would apply those factors to the evidence presented for the jury’s consideration. It
    was within the court’s discretion to conclude that the proffered testimony was not
    sufficiently beyond the jury’s understanding to be helpful in its evaluation of the
    evidence. (People v. McDonald, supra, 37 Cal.3d at p. 373 [trial court has broad
    discretion to admit or exclude expert testimony]; People v. Clark (1970) 
    6 Cal.App.3d 658
    , 664 [same].)
    In the absence of a more complete offer of proof we can only assume that if he had
    not been prevented from doing so, appellant’s counsel would have posed hypothetical
    questions embodying the various factors that Eisen had testified might affect the
    reliability of an eyewitness identification (such as the lateness of the hour, the Howards’
    admittedly less-than-complete opportunity to see their attacker, the extremely harrowing
    circumstances, their initial identification based on a single photograph rather than an
    array, etc.), with reference to the facts surrounding the Howards’ identifications of
    appellant as their attacker. These factors and facts were already in evidence, and were
    the subject of the testimony Eisen was permitted to present. Nothing indicates that the
    jury might have been substantially aided in its evaluation of the evidence by hearing
    Eisen’s own conclusions about the facts that the jury was called upon to decide. (See
    People v. Vang, 
    supra,
     52 Cal.4th at pp. 1051-1052 [hypothetical questions should not be
    prohibited solely because they closely track the evidence or express the expert’s opinion,
    but the court has discretion to exclude opinion testimony “regarding the actual
    defendants, . . . because the jury can determine what the defendants did as well as the
    expert . . . .”]; People v. Valdez, supra, 58 Cal.App.4th at p. 506 [expert opinion is not
    admissible that consists of inferences and conclusions that can be drawn as easily by the
    trier of fact as by the witness].)
    Moreover, even if the trial court’s discretionary ruling precluding Dr. Eisen from
    answering hypothetical questions based on the factual circumstances before the jury had
    11
    been error, we find that it was harmless to appellant’s cause. It is highly improbable that
    the jury would have returned a verdict more favorable to appellant if it had heard Dr.
    Eisen testify to his belief that Donald’s and Melissa’s identifications of appellant as their
    attacker might have been affected by the circumstances about which he had been
    permitted to testify at length. (See People v. Vang, 
    supra,
     52 Cal.4th at p. 1052 (conc.
    opn. of Werdegar, J.).)
    II.    The Trial Court’s Failure To Instruct The Jury On The Lesser Included
    Offense Of Simple Assault Did Not Prejudice Appellant.
    Appellant contends that the trial court erred by failing to instruct the jury on
    simple assault as a lesser included offense of assault with a firearm as charged in counts 1
    and 2. And he claims that he was prejudiced by the failure to give the lesser-included-
    offense instruction. The record shows otherwise.
    At the jury instruction conference, the trial court discussed with counsel whether
    the jury should be instructed on simple assault (§ 240) as a lesser included offense of the
    count 1 and 2 charges of assault with a firearm (§ 245, subd. (a)(2)). The court suggested
    its doubt that such an instruction would be beneficial to appellant, but stated its
    willingness to give such an instruction “based on the request of the two of you,” and that
    it would consider giving the instruction if the defendant requested it. “I’m simply trying
    to protect the rights of the defendant in this case. But if—I’m not his attorney—tactically
    you think you do want that [instruction] in there, then I’ll consider giving it.” Counsel
    for both the People and appellant then told the court that neither party was asking that the
    jury be instructed on the lesser included offense of simple assault to the count 1 and 2
    charges of assault with a firearm.
    At appellant’s request, the court instructed the jury on simple battery (§ 242) as a
    lesser included offense to the count 4 and 5 offense of battery with serious bodily injury
    (§ 243, subd. (d)). But with the consent of both parties, it did not instruct the jury on
    simple assault as a lesser included offense to the count 1 and 2 charges of assault with a
    firearm.
    12
    A lesser included offense is an offense that is encompassed within the charged
    offense. (People v. Breverman (1998) 
    19 Cal.4th 142
    , 162.) A trial court has a duty to
    instruct the jury on a lesser included offense—with or without a party’s request—
    whenever the evidence would support a reasonable jury in concluding that the defendant
    is not guilty of the charged offense, but is guilty of the lesser included offense. (People v.
    Avila (2009) 
    46 Cal.4th 680
    , 705; People v. Cole (2004) 
    33 Cal.4th 1158
    , 1215.) On
    appeal, we review independently the question whether the trial court improperly failed to
    instruct the jury on a lesser included offense. (People v. Souza (2012) 
    54 Cal.4th 90
    ,
    113.)
    The parties have no dispute that simple assault (§ 240) is a lesser included offense
    of the crime of assault with a firearm (§ 245, subd. (a)(2)), as many cases have at least
    suggested. (E.g., People v. Colantuono (1994) 
    7 Cal.4th 206
    , 213, fn. 2 (maj. opn.) &
    223, fn. 1 (conc. opn. of Mosk, J.); People v. Miceli (2002) 
    104 Cal.App.4th 256
    , 272;
    People v. Mitchell (1988) 
    199 Cal.App.3d 300
    , 302, fn. 2; see People v. McDaniel (2008)
    
    159 Cal.App.4th 736
    , 747-748 [simple assault is lesser included offense of aggravated
    assault and assault by prisoner].)
    Appellant argues on appeal that the jury should have been instructed on simple
    assault as a lesser included offense, because the jury could reasonably have concluded
    from the evidence that although appellant assaulted Donald and Melissa, the evidence
    was insufficient to show that he used a gun in the assaults. He points to a question
    submitted by the jury during its deliberations, asking the court whether the charge of
    assault with a firearm required that the defendant “used” the firearm to injure the victim,
    or only that the firearm was “present” at the assault. The jury returned its verdicts shortly
    after it was told by the court (with the approval of counsel for both parties) that the
    firearm’s “mere presence” was not sufficient to support the charge, but proof that the
    firearm was “used to inflict injury” was not required.
    Appellant argues that this question indicates the jury’s doubts about whether a
    firearm played anything more than a peripheral role in the assault, indicating that it might
    have convicted him of simple assault, rather than assault with a firearm, if they had been
    13
    given that opportunity. Respondent counters that no evidence supports the theory that
    appellant did not use a gun. Although Donald saw no gun, appellant’s blows felt as
    though they were inflicted by a gun; and Melissa testified that she saw appellant with a
    gun, and her injuries could not have been inflicted by fists alone.
    We decline to address whether the evidence did or did not impose a duty on the
    court to give the jury the lesser-included-offense instruction. Even assuming that the
    court had such a duty, any error in failing to instruct the jury on the lesser included
    offense was necessarily harmless by any standard. This is because the jury not only
    found appellant guilty of assault with a firearm as to counts 1 and 2, but also
    independently found that appellant “personally used a firearm” in committing the
    offenses. (§ 12022.5, subd. (a).)
    Because appellant “personally used a firearm” in committing the assaults, he was
    necessarily guilty of assault with a firearm, rather than simple assault. The independent
    findings that appellant “personally used a firearm” in his assaults of Donald and Melissa
    negate any possibility that it might also have found that he did not actually use a firearm.
    They are incompatible with the contention that the jury might have convicted appellant of
    simple assault rather than assault with a firearm if it had been instructed on assault as a
    lesser included offense. The court’s failure to instruct that it was entitled to reach such a
    finding therefore necessarily was of no consequence to the verdicts.
    III.   Appellant’s Sentence Does Not Inflict Cruel And Unusual Punishment.
    Appellant contends (for the first time on appeal) that his sentence of 81 years to
    life in prison under the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12), is so grossly
    disproportionate to his offenses that it amounts to cruel and unusual punishment under
    the Constitutions of the United States and the State of California.7 In light of his long
    history of violent crime, we conclude that appellant’s sentence of 81 years to life
    7
    Appellate courts have the authority to determine whether a sentence results in
    cruel or unusual punishment, notwithstanding an appellant’s failure to address the claim
    in the trial court. (People v. Meeks (2004) 
    123 Cal.App.4th 695
    , 706 [citing cases].)
    14
    imprisonment does not constitute cruel or unusual under the state or federal
    Constitutions.
    California’s Three Strikes law provides for enhancements of prison terms for new
    offenses because of prior prison terms. It requires a term of life imprisonment with a
    minimum term of at least 25 years for a conviction of a third felony after two or more
    prior convictions for what are defined by statute as “violent” or “serious” felonies. (§§
    667.5, 1192.7, subd. (c).) Under section 667.5, subdivision (c)(8), a “violent” felony
    includes any felony in which the defendant inflicts great bodily injury on any person
    other than an accomplice, which has been charged and proved as provided for in sections
    12022.7 or 12077.9, and any felony in which the defendant uses a firearm, which use has
    been charged and proved as provided in section 12022.5. Under section 1192.7,
    subdivision (c)(8), a “serious” felony includes any felony in which the defendant
    personally uses a firearm. (People v. Martinez (1999) 
    71 Cal.App.4th 1502
    , 1505, fns. 1,
    2, 3, 1511.)
    Appellant was convicted of two counts of assault with a firearm (§ 245, subd.
    (a)(2)), and two counts of battery causing serious bodily injury (§ 243, subd. (d)). He
    was found to have inflicted great bodily injury on his two victims, using a firearm. (§§
    12022.7, subd. (a), 12022.5, subd. (a).) He had been found to have a long history of
    serious felonious conduct, having sustained two prior serious or violent felony
    convictions for carjacking and robbery, and at the time of the current offenses he was on
    parole for felony possession of a firearm. As the trial court explained, appellant is
    “someone who is in that pattern of the revolving door of the criminal justice system,”
    justifying imposition of the additional penalties for recidivism. “Back in 1998 when he
    suffered both of the prior strike convictions [under the Three Strikes law], he was
    sentenced to nine years in the state prison. Upon being paroled from that, he picked up a
    new misdemeanor conviction in 2005. Then in 2007, he picked up two separate felony
    cases” (one involving furnishing a controlled substance, the other for possession of an
    assault weapon and ammunition by a felon). “[A]nd he did four years in state prison
    back in 2007 on that firearm case, and then of course picked up this new case today.”
    15
    The trial court found that appellant’s crimes demonstrate “a high degree of cruelty,
    viciousness or callousness.” His victims, the Howards, “were basically ambushed” by
    appellant. They were attacked without provocation or warning while they “were in a
    particularly vulnerable state.”
    Selecting count 2 (the assault on Melissa) as the base term, the court imposed a
    total sentence on that count of 49 years to life in prison. Its sentence on that count
    consisted of a life term with a minimum parole eligibility of 25 years under section 667,
    subdivisions (b) through (i), and section 1170.12, subdivisions (a) through (d); a
    consecutive 10-year sentence, the high term under section 12022, based on the
    circumstances of the crime (involving great violence, the fact and threat of great bodily
    harm, a high degree of cruelty, viciousness or callousness, the victims’ vulnerable state,
    and the defendant’s danger to society); an additional consecutive sentence of three years
    under section 12022.7, subdivision (a); two additional consecutive five-year terms under
    section 667, subdivision (a);8 and an additional one-year consecutive sentence for his
    previous prison term for possession of a firearm by a felon (former § 12021, subd. (a)(1)).
    The court struck the firearm enhancement with respect to appellant’s other prior felony
    conviction.
    For count 1 (the assault on Donald), the court sentenced appellant to a total of 32
    years to life in prison, consisting of a life term with a minimum parole eligibility of 25
    years under section 667, subdivisions (b) through (i), and section 1170.12, subdivisions
    (a) through (d); an additional four-year consecutive sentence, the midterm under section
    12022; and an additional three-year consecutive sentence under section 12022.7,
    subdivision (a).9
    8
    Section 12022.7, subdivision (a) requires the additional and consecutive term of
    three years for the infliction of great bodily injury in the commission of a felony. Section
    667, subdivision (a), requires an additional and consecutive term of five years for each
    prior conviction for a serious felony, as defined in section 1192.7, subdivision (c).
    9
    For each of counts 4 and 5 the court imposed sentences of 25 years to life, with
    four years of enhancements, but stayed those sentences under section 654.
    16
    The cruel and unusual punishment clause of the United States Constitution’s
    Eighth Amendment provides that “Excessive bail shall not be required, nor excessive
    fines imposed, nor cruel and unusual punishments inflicted.” The California Constitution
    also provides that “Cruel or unusual punishment may not be inflicted.” (Cal. Const. art. I,
    § 17.) “‘Whether a punishment is cruel and 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. Mantanez (2002) 
    98 Cal.App.4th 354
    , 358.)
    A sentence violates these constitutional prohibitions only if it is grossly
    disproportionate to the defendant’s crime, in light of both the circumstances of the current
    offense or offenses and the defendant’s history as a recidivist offender. In Rummel v.
    Estelle, supra, 
    445 U.S. 263
     (Rummel), the United States Supreme Court held that society
    is warranted in imposing increasingly severe penalties on recidivist offenders. A
    recidivist sentencing statute’s primary goals “are to deter repeat offenders and, at some
    point in the life of one who repeatedly commits criminal offenses serious enough to be
    punished as felonies, to segregate that person from the rest of society for an extended
    period of time.” (Id. at pp. 284-285; Ewing v. California (2003) 
    538 U.S. 11
    , 29.)
    California courts have adopted this reasoning in upholding life sentences for third strike
    offenders. (People v. Martinez, supra, 71 Cal.App.4th at p. 1511.)
    In determining whether a particular sentence under a recidivist sentencing statute
    such as the Three Strikes law is unconstitutionally excessive or disproportionate to the
    defendant’s crime, the reviewing court determines whether the sentence constitutes cruel
    and unusual punishment “as applied to the specific circumstances involved in the case at
    issue.” (In re Coley (2012) 
    55 Cal.4th 524
    , 553, italics omitted.) The reviewing court
    considers three criteria: the gravity of the offense and the harshness of the penalty; the
    sentence imposed on other offenders in the same jurisdiction; and the sentences imposed
    for the same crime in other jurisdictions. (In re Lynch (1972) 
    8 Cal.3d 410
    , 425; People
    v. Meeks, supra, 123 Cal.App.4th at p. 707.)
    Appellant argues that his sentence is harsh by suggesting that his release during
    his lifetime is unlikely, due to his age and the number of his current and prior serious
    17
    felony offenses. But appellant does not address the claimed harshness of the sentence in
    the context of the number and severity of the crimes for which he was convicted, or his
    history of prior violent and serious felony offenses—the factors that justify the state’s
    imposition of increasingly severe penalties on offenders who repeatedly commit serious
    criminal offenses. (Ewing v. California, 
    supra,
     538 U.S. at p. 29; People v. Martinez,
    supra, 71 Cal.App.4th at p. 1511.) Nor does appellant suggest that his sentence is harsher
    than those imposed on other offenders in this state for similarly violent and serious
    offenses, or harsher than sentences imposed in other jurisdictions for such repeated
    felony offenses. (See In re Lynch, supra, 8 Cal.3d at p. 425; People v. Meeks, supra, 123
    Cal.App.4th at p. 707.)
    Viewed in the light most favorable to the judgment, appellant was convicted using
    a handgun to beat two defenseless victims with a handgun, in the dark and without
    provocation or warning, causing severe head wounds to one victim and knocking the
    other unconscious with his blows. He was sentenced for those offenses based on his
    status as a repeat offender, having been convicted of carjacking and more recently for
    being a felon in possession of a firearm, an offense for which he was on parole at the time
    of the current offenses. On this record, appellant’s sentence does not violate the
    prohibitions against cruel and unusual punishments of the California or United States
    constitutions.
    IV.    Amendment Of The Abstract Of Judgment To Correct Clerical Errors.
    The respondent’s brief asks that we order modification of the abstract of judgment
    in this case in two respects: (1) to correct a clerical error regarding the statutory scheme
    under which appellant was sentenced; and (2) to correct a clerical error regarding the
    statutory scheme under which appellant was awarded presentence credits. Appellant’s
    reply brief does not address these requests. Clerical errors in the record may be corrected
    by trial or appellate courts at any time. (People v. Mitchell (2001) 
    26 Cal.4th 181
    , 185,
    187-188.)
    Respondent asks that the abstract of judgment be corrected to reflect that appellant
    was sentenced under the Three Strikes law, section 667, subdivisions (b) through (i), and
    18
    section 1170.12, by checking the corresponding box at Item 8 of the Abstract of
    Judgment, page 1. This correction is justified by the trial court’s specific references in its
    sentencing statement to the applicable provisions of law.
    Respondent asks also that the abstract of judgment be corrected to reflect that the
    trial court awarded appellant presentence conduct credits under section 2933.1, which
    provides that a person convicted of a felony listed in subdivision (a) of section 667.5
    (encompassing the violent felonies for which appellant was convicted) “shall accrue no
    more than 15 percent of worktime credit, as defined in Section 2933.” The trial court’s
    application of the 15 percent limitation of section 2933.1, justifying the requested
    correction in the abstract of judgment, is shown by its grant of 258 days of credit, “plus
    38 days of good time/work time credits, for a total of 296 days of presentence custody
    credit”—constituting 15 percent of 258, rounded to the nearest whole number.
    Disposition
    The judgment is affirmed. The Abstract of Judgment is ordered corrected as
    follows: (1) to reflect that appellant was sentenced under the Three Strikes law, section
    667, subdivisions (b) through (i), and section 1170.12, by checking the corresponding
    box at Item 8 of the Abstract of Judgment, page 1; and (2) to insert a mark in row A of
    Item 15 of the Abstract of Judgment, page 2, indicating the conduct credits are calculated
    under section 2933.1.
    NOT TO BE PUBLISHED.
    CHANEY, Acting P. J.
    We concur:
    JOHNSON, J.
    BENDIX, J.*
    *
    Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant
    to article VI, section 6 of the California Constitution.
    19