The opinion of the court was delivered by: Butz , J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Phillip Glenn Brooks was found guilty after a court trial of possessing a deadly weapon (a sap) in violation of Penal Code section 12020, subdivision (a).*fn1 Defendant admitted and the court found true that defendant had three prior strikes and had served two prior prison terms.*fn2 (§§ 667.5, subd. (b), 1170.12.) Sentenced to 27 years to life in state prison, defendant appeals. He contends: (1) there was insufficient evidence to support his conviction; (2) the trial court abused its discretion in denying his motion to reduce his offense to a misdemeanor; (3) the trial court abused its discretion in refusing to dismiss one or more of his prior strikes; and (4) his sentence constitutes cruel and unusual punishment in violation of the state and federal Constitutions. We shall affirm.
On October 6, 2008, Redding Police Officers Brian Cole and Timothy Renault were on patrol when they saw a white pickup truck go through an intersection. Cole noticed that the truck was missing a front license plate, the registration tags were expired and several of the tires appeared to lack sufficient tread. The officers made an enforcement stop.
Officers Cole and Renault approached the truck and contacted defendant and his passenger, Eugene Rodriguez. The first thing Cole noticed was the odor of marijuana coming from the interior of the truck. When the officers told defendant they could smell marijuana, defendant replied that he had approximately an "eighth of weed" in the truck and gave officers consent to search the pickup.
Near the center console, Officer Cole found a plastic Ziploc bag containing marijuana. Cole then saw a piece of leather partially obtruding from under the driver's seat, only inches from where defendant's right leg would be while driving and within arm's reach. Upon retrieving the item, he determined it was a 14-inch sap. When Cole asked defendant about the item, defendant stated, "I believe it's called a 'sap.'" When asked why he had it next to his seat, defendant replied that it was for his "protection."
Officer Cole testified that a "sap" is a weapon that consists of a piece of lead weight wrapped in leather. It is usually approximately 12 inches in length. The handle or strap can be wrapped around the hand and the lead end is used to strike people.
Officer Will Williams also testified regarding saps. Saps are made of leather with a lead-based end to create weight, and are often spring-loaded. These handheld weapons can vary in length and are designed to incapacitate another person by striking blows to the head. Williams identified the item recovered from defendant's truck as a sap. Although some of the older peace officers used to carry saps, this was the first time he had seen a citizen possess one.
Two individuals, Leonard Malecke and Richard Bischof, testified that they worked with defendant on painting jobs. They both recalled that defendant had purchased a box of miscellaneous painting items at a yard sale and the sap was in that box. Bischof came up with the idea of using the sap to close the lid on paint cans, and both Malecke and Bischof had seen defendant use it in this manner. Bischof also testified that he had been with defendant when he was pulled over on two other occasions and, on both occasions, officers had searched the truck, found the sap, and said nothing.
I. Sufficiency of the ...