(Super. Ct. No. CRF090288)
The opinion of the court was delivered by: Duarte , 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Enraged when his attempts to buy alcohol at a neighborhood market were thwarted, defendant Thewdros Geber Christos threw various items at the clerk and pushed everything, including the cash register, off of the counter. A jury convicted him of felony vandalism, causing damage of $400 or more (Pen. Code, § 594, subds. (a), (b)(1)), but acquitted him of assault with a deadly weapon or by force likely to cause great bodily injury and criminal threats. The trial court found defendant had two strike priors (Pen. Code, §§ 667, subd. (b)-(i); 1170.12) and denied his motion to dismiss one or both strikes, sentencing him to 25 years to life in prison.
On appeal, defendant contends it was error to instruct on late discovery and to shackle a defense witness. Defendant also challenges his sentence, contending the trial court was required to strike one of his strikes under People v. Benson (1998) 18 Cal.4th 24 (Benson) and People v. Burgos (2004) 117 Cal.App.4th 1209 (Burgos), because both strikes were based on the same criminal act. He further contends it was error to deny his Romero motion (People v. Superior Court (Romero) (1996) 13 Cal.4th 497) and his sentence of 25 years to life constitutes cruel and unusual punishment in violation of both the Federal and California Constitutions. Finally, defendant contends it was an abuse of discretion to order restitution based on inadequate information. We find no prejudicial error and shall affirm.
On the afternoon of January 16, 2009, defendant went to the Olive Drive Market to get some beer. Man Viswakarma, the assistant manager, was working. On previous occasions, Viswakarma had argued with defendant who wanted to get alcohol on credit, without paying for it. For two years, Viswakarma had refused to give defendant alcohol. He told defendant not to enter the store.
Defendant got angry and starting throwing water bottles at Viswakarma. He also threw boxes of beef jerky and lighters. He pushed things off of the counter and threw the Lotto machine. He damaged the screen of the surveillance camera, the cash register, and the counter. He also broke a $25 bottle of tequila. Defendant was yelling profanities and threatening to kill Viswakarma. Viswakarma was scared, but he was not injured or even struck by any of the flying objects. Defendant appeared to be intoxicated.
A salesman from the 7-Up Bottling Company was in the market that day. He saw Viswakarma grab a cardboard pole and swing it at defendant after Viswakarma told defendant not to enter the store. The salesman did not see Viswakarma hit defendant, but heard defendant say, "you hit me."
Michael Velebit had known defendant for six months. He testified that he went to the market once with defendant. On that occasion Viswakarma got upset and aggressive and called defendant, who is from Ethiopia, a racial slur. Velebit was in custody on an unrelated charge at the time of defendant's trial; further, his testimony was impeached with several felonies.
Late Discovery--CALCRIM No. 306
Immediately before calling the first witness at trial, the People turned over to the defense pictures of the crime scene that the prosecutor had just received. The defense asked the court to exclude this late discovery, but added that if it were admitted into evidence, the court should give the instruction on late discovery--CALCRIM No. 306. The court initially excluded the evidence, but later the parties agreed to admit 10 photographs of the crime scene and instruct the jury on late discovery.
The court instructed the jury in the language of CALCRIM No. 306 as follows: "Both the People and the defense must disclose their evidence to the other side before trial, within the time limits set by law. Failure to follow this rule may deny the other side the chance to produce all relevant evidence, to counter opposing evidence, or to receive a fair trial. [¶] An attorney for the People failed to disclose: photographs of the Olive Drive Market. [¶] In evaluating the weight and significance of that evidence, you may consider the effect, if any, of that late disclosure."
Defendant notes that CALCRIM No. 306 is similar to the prior CALJIC No. 2.28 instruction,*fn1 which had been criticized, inter alia, for its failure to provide adequate guidance to the jury. (See People v. Bell, supra, 118 Cal.App.4th 249; People v. Cabral (2004) 121 Cal.App.4th 748; People v. Saucedo (2004) 121 Cal.App.4th 937.)
CALCRIM No. 306 is an extensively revised instruction on late discovery. (People v. Riggs (2008) 44 Cal.4th 248, 307.) This new instruction "arrives with a solid pedigree: The chair of the task force sponsoring the instruction was the authoring justice of Bell." (People v. Lawson (2005) 131 Cal.App.4th 1242, 1249.) Nonetheless, defendant maintains the instruction is flawed because it gives inadequate guidance on how to evaluate the effect of evidence that was provided late.
Defendant's challenge to CALCRIM No. 306 is precluded. Not only did he fail to request clarifying or amplifying language (People v. Hudson (2006) 38 Cal.4th 1002, 1011-1012 ["'Generally, a party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language'"]), but the record indicates he agreed to the admission of the photographs with this instruction. Where a defendant joins in the request for an instruction, any claim of error concerning it is waived. (People v. Jackson (1996) 13 Cal.4th 1164, 1223.)
Shackling Defense Witness
Defense witness Velebit was in custody for a nonviolent crime at the time of his trial testimony. The defense requested that Velebit be permitted to testify without restraints. Although there was information that Velebit had acted violently while in custody, counsel suggested the close presence of a deputy would be an ...