Filed 1/8/01

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County. Joan Comparet-Cassani, Judge. Modified and affirmed.

William L. Heyman, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, Marc E. Turchin, Supervising Deputy Attorney General, Chung L. Mar, Deputy Attorney General, for Plaintiff and Respondent.

Defendant Johnny Lee Howze appeals from a judgment of conviction following a jury trial. The jury found him guilty of two counts of first degree burglary (Pen. Code, § 459; counts 1 and 2) and one count of possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a); count 3). The jury also found true allegations that defendant had previously suffered four convictions for first degree burglary (Pen. Code, § 459) that constituted serious or violent felony convictions and therefore qualified as four "strikes" under the Three Strikes law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). The jury further found true allegations that each of the four first degree burglary convictions constituted a serious felony (Pen. Code, § 667, subd. (a)(1)), and that defendant had served two separate prison terms for burglary convictions (Pen. Code, § 667.5, subd. (b)). Defendant was sentenced to state prison for a total term of 90 years to life, consisting of three consecutive terms of 25 years to life on counts 1, 2 and 3, plus three consecutive five-year enhancements for prior serious felony convictions. The trial court also imposed and stayed one-year enhancements for each of the prior prison terms. Defendant contends: (1) the trial court erred in commencing trial in the absence of the defendant; (2) the evidence was insufficient to sustain defendant’s conviction for first degree burglary on counts 1 and 2; (3) the trial court erred in denying his motion to substitute appointed counsel; (4) the trial court erred in denying his motion to represent himself; (5) the trial court erred when it concluded that a consecutive sentence was mandated on count 2 since the court was under the mistaken belief that the offenses in counts 1 and 2 did not arise from the same operative facts and were not committed on the same occasion; (6) the evidence is insufficient to prove that defendant was the person who suffered the prior serious felony conviction in case No. A028550, which was used to enhance his sentence by five years; (7) the trial court erred when it did not determine whether defendant was the person who committed the alleged prior convictions; (8) his sentence of 90 years to life constitutes cruel and unusual punishment under federal and state law; (9) the two enhancements for prior prison terms should be stricken rather than imposed and stayed; and (10) his presentence conduct credits were improperly calculated and he is entitled to two additional days of credit. We will order that the judgment be modified (1) to strike rather than stay the two enhancements for prior prison terms, and (2) to reflect that defendant is entitled to an additional two days of presentence conduct credit. We will affirm the judgment in all other respects.

A. Burglary of the Kimble Residence (Count 1)

On August 17, 1998, Richard and Lois Kimble lived at 5345 Appian Way in Long Beach. That night, Mr. Kimble went to bed first and was joined shortly thereafter by his wife. The next morning, Mr. Kimble woke up around 7:00 a.m. He was the first person in the house to wake up. He went downstairs and poured a cup of coffee. When he looked out the kitchen window, which was located about four feet above the ground, he noticed the portable butane barbecue had been moved from its usual location. Normally, the barbecue was located directly underneath the window. He observed that one corner of the barbecue had been moved away from the wall of the house about a foot and a half. When his wife came down later, Mr. Kimble asked her if she had moved the barbecue, and she said she had not.

Mr. Kimble went outside and examined the barbecue. He noticed that little trinkets that had previously been on the kitchen windowsill had been removed and placed on the barbecue. He also saw one of their kitchen paring knives had been placed on the barbecue. The knife was normally stored in a drawer in the kitchen. He then noticed the screen over the part of the kitchen window that opened had been removed. He walked out toward Marine Stadium, which was near his house, to see if he could find the screen. He observed the screen in his neighbor’s bushes.

Mr. Kimble entered his house again and inspected the area near the kitchen window. He saw that the sink was gritty, and that the window had been pried open. The window had been closed and locked the previous evening. He noticed there was a scratch on the aluminum casement of the window where it had been pried open. Mrs. Kimble also noticed that things were out of place and realized that someone had been in their house. She looked in the cabinet where she normally kept her purse and found it was missing. Her purse had contained her billfold with about $130 in cash. The purse also contained a monocle she needed due to a visual handicap, as well as special magnifying glasses and a lighted magnifying glass. A gold watch that needed to be repaired was also in the purse. About $40 in cash that she kept in a small drawer in the kitchen was also missing.

Mrs. Kimble then called the police to report the incident. She had call waiting on her phone, and while she was calling the police her neighbor, Virginia Collis, called her to tell her that she had found her purse. Ms. Collis, who lived in front of Marine Stadium at 5327 Paoli Way, had observed the purse on the ground while she was gardening, and also noticed a wallet and papers laying near the purse. She saw the name in the wallet and realized it belonged to her neighbor Mrs. Kimble. Mrs. Kimble went over to her neighbor’s house, which was only five houses away, and retrieved her purse and wallet. She then returned home and inventoried the purse. She found that the cash, the monocle, the magnifying glasses, and the gold watch were all missing.

Later that day, Carmen Moncure arrived at the Kimble residence. She was an Identification Technician who had been employed by the Long Beach Police Department Crime Laboratory for the last six years. She checked for latent fingerprints at the Kimble residence and obtained six latent prints from the inside ledge of the kitchen window, one latent print from the tile on the wall, and one latent print from the tile around the kitchen sink, by using black graphite powder. Manuel Lara, an Identification Technician employed by the Long Beach Police Department, compared the latent prints to prints taken from defendant and determined that five of the latent prints recovered from the Kimble residence were made by defendant. Specifically, one of the latent prints matched defendant’s right thumbprint, one matched his left middle fingerprint, one matched his right palm print and two of the latent prints matched defendant’s left palm print.

Neither Mr. or Mrs. Kimble knew defendant, and neither of them had given him permission to enter their residence. Nobody had permission from them to enter their residence through the kitchen window.

B. Burglary of the Stromberg Residence (Count 2)

On August 17, 1998, David Stromberg lived at 5307 Paoli Way in Long Beach with his wife and three children. At about 10:00 p.m., he was outside in front of his residence when his wife came out and told him she observed something was wrong with a screen in the house. He went inside and observed that a screen for a bedroom window was bent outward from one of the corners at a 45-degree angle. The window was a sliding window about four and a half feet off the ground. A concrete walkway ran along the house by the window. Because the summer night was hot, Mr. Stromberg had left the window open before stepping outside. When he had stepped outside the screen was still covering the window and had not been bent.

Mr. Stromberg looked out the window through the bent screen and saw that a blue and white lawn chair or patio chair was up against the house on the walkway directly under the bent screen. He did not recognize the patio chair and it was not one that he owned. It was obvious to him that someone had used the chair to get into his house. He testified that he did not believe the chair was a folding type. Mr. Stromberg checked the house, but found no one else inside except his children.

Mr. Stromberg walked across Appian Way and saw police activity. A police officer told him that they had chased a purse snatcher into the neighborhood. Mr. Stromberg informed the police that there had been a break-in at his residence. When the police officer entered his residence and began talking to him, Mr. Stromberg noticed that his wife’s purse was missing from the nightstand opposite the window, and that his own wallet was missing from the top of the bedroom dresser. He recalled that there was about $40 in his wallet.

A police officer then entered the residence and asked Mr. Stromberg if a wallet he located in a trash can belonged to him. Mr. Stromberg went outside and saw his wallet in a trash can. He also saw his wife’s purse in or near the trash can. Mr. Stromberg determined that the cash was missing from his wallet. Nothing was missing from his wife’s purse. Chairs that matched the one left under his window were located at a house two doors away on Appian Way.

Later that evening, Nancy Preston, an Identification Technician employed by the Long Beach Police Department Criminal Laboratory, went to Mr. Stromberg’s home and dusted the blue and white patio chair located underneath the bedroom window with black fingerprint powder. She obtained two latent prints from the chair. One latent print was from the side of the frame on the back of the chair, and the other was from the back of the top of the chair frame and was located almost in the middle of the frame. She testified that the chair was a folding patio type chair. The latent prints were subsequently compared with fingerprints of the defendant by Manuel Lara, an Identification Technician employed by the Long Beach Police Department, and it was determined that the latent print from the side of the frame was made by defendant’s left ring finger, and the latent print from the back of the top of the frame was made by defendant’s right ring finger. There was no way to tell how long defendant’s prints had been on the chair.

Defendant did not have permission to enter Mr. Stromberg’s residence, and no one had permission to bend the screen, enter the window, and take his wallet and his wife’s purse. Mr. Stromberg did not know defendant and had never seen him before.

C. Possession of Cocaine (Count 3)

On August 20, 1998, Long Beach Police Detective Michael Dugan and Long Beach Police Officer Joseph Bahash received information concerning the whereabouts of defendant, who had been identified as a suspect in the burglaries through the fingerprint evidence. They went to the area near Orange and First and Second and Broadway in Long Beach, where they believed defendant might be located. They observed defendant enter a liquor store at Broadway and Falcon. They entered the store and arrested defendant for burglary. After defendant was handcuffed, he was searched by Detective Dugan. Detective Dugan found a small metal container in defendant’s right sock. He opened the container and observed several pieces of rock cocaine inside the container. The rock cocaine was subsequently analyzed and it was determined that it was cocaine and weighed .5 grams. In Detective Dugan’s experience, a usable street quantity was about .05 grams, so the amount of rock cocaine retrieved from defendant constituted about ten usable amounts. Detective Dugan also retrieved a glass cocaine pipe from defendant’s right front pants pocket.

A. The Decision to Commence Trial in the Absence of Defendant

Defendant contends that the trial court acted in excess of its jurisdiction and violated Penal Code section 1043 when it commenced trial in the defendant’s absence. He also asserts that commencing trial in his absence violated his federal and state constitutional rights to be personally present at his trial. We find that defendant is estopped to assert that the trial court acted outside its jurisdiction and violated his rights when it commenced trial in his absence because he consented to the court starting trial in his absence, his absence was caused by his own deliberate conduct and was a deliberate choice on his part with knowledge of the consequences, and because he later chose to participate in the proceedings at trial when he believed it was in his interest to do so without making any objection on jurisdictional or constitutional grounds. We also find that defendant orally waived his right to appear personally at the commencement of trial, and that while such an oral waiver is not in strict compliance with the statutory requirement that waivers be in writing, defendant has failed to demonstrate any prejudice resulting from this error and is entitled to no relief.

In the instant case, the record shows the defendant began his disruptive conduct, including failing to appear in court, as early as the preliminary hearing. At the preliminary hearing, defendant claimed to be possessed by two different people, including rap artist Tupac Shakur. He also claimed not to know why he was even having a preliminary hearing. After an evening recess, the preliminary hearing proceeded the next morning. However, defendant was absent from the proceedings. It was represented that defendant refused to come out of the jail for court transportation. The bailiff stated that the night before, defendant had told the bailiff he was not going to come back to court. The bailiff stated that defendant had a long history of refusing to come out of his jail cell. Evidently, defendant was eventually transported to court in time to be present for the remainder of the preliminary hearing. As soon as the testimony resumed, defendant interrupted the proceedings with "bizarre" claims that someone was "poking" him when in fact there was nobody near him. Defendant was eventually bound over for trial.

On defendant’s arraignment date in superior court, October 20, 1998, it was noted that defendant did not appear and was a "miss-out." A representative of the Sheriff’s Department informed the court that defendant had previously failed to appear for arraignment in municipal court on August 24, 25, 26, and 31, 1998, and also failed to appear on September 1, 2, and 3, 1998. He did appear and was arraigned in municipal court on September 4, 1998, but was again a "miss-out" for his preliminary hearing on September 21, 22, 23, and 24, 1998. He also was a "miss-out" for his preliminary hearing on October 1 and 2, 1998, before he was finally brought to court and his preliminary hearing began.

An extraction order was obtained from a judge prior to the arraignment date in superior court, but the court presiding at the superior court arraignment was informed that the defendant had claimed to have high blood pressure, a heart problem, asthma and seizure problems. The court therefore decided it would not issue an extraction order because it could endanger the health of the defendant. The court held a hearing and, after hearing evidence of defendant’s past refusal to come to court and the dangers that physical removal could present due to his potential health problems, ordered that his future refusals to come to court be videotaped. The court noted it was also aware that when defendant was arraigned in municipal court the municipal court judge had to arraign him in the holding cell after defendant had stripped naked in the cell and refused to come into the courtroom.

On the next court date, October 21, 1998, defendant appeared in court and started screaming. He continued to scream in court, and then "fell over on the floor" and struggled with the sheriff’s deputies. Defendant was ordered removed due to his disruptive behavior. He was subsequently informed that he could come back to the courtroom if he behaved properly and did not scream. He was then brought back into court. When asked how he pled to the charges, defendant started laughing and defense counsel had to enter a plea on defendant’s behalf.

On November 18, 1998, defendant refused to come to court. The court made a finding after reviewing medical reports that defendant was malingering and intentionally refusing to come to court. Defendant had complained to the jail staff that morning that his legs were "not functional" and that was the reason he had to stay in his cell. However, he was observed later that day and his legs appeared to be functioning properly.

On December 10, 1998, defendant refused to come to court and a hearing was held concerning his medical and mental condition. Evidence was presented that defendant had rubbed feces over his body and hands and then challenged deputies to come into the cell to extract him. When the deputies prepared to videotape defendant in his cell, he masturbated and ejaculated toward the camera and threw food at the deputy who was doing the videotaping. The hearing was continued to the following day, and once again defendant did not come to court. The hearing was then continued to December 14, 1998, and once again defendant was not present. On that date, the court declared a doubt as to defendant’s mental competence pursuant to Penal Code section 1368, and the matter was continued to January 25, 1999.

On January 25, 1999, defendant was in the court lockup, but would not speak to a psychologist who was there for a competency hearing. When defense counsel went to speak to defendant, she found he was naked in his cell. Defendant did not respond to counsel’s statements except to repeatedly state "Hey." The court noted that defendant had previously "gotten naked" at court on numerous occasions, and that defendant had previously refused to talk to any mental health experts. The court indicated it still believed defendant was malingering, but appointed another psychiatrist to interview defendant in jail. The matter was continued to March 1, 1999.

On April 19, 1999, defendant was present in court and a court trial was held on defendant’s competency to stand trial. The court noted that all three doctors who had been appointed to examine defendant concluded that defendant was malingering and feigning mental illness in order to avoid prosecution. The court found there was "no doubt" defendant was malingering and was competent to stand trial. Because of defendant’s history of refusing to come to court on scheduled court dates, the court advised the defendant personally after the competency hearing concluded as follows:

Defense counsel did not object to the court’s admonition and did not argue against the court’s decision to treat a refusal to come to court as a waiver of a personal appearance. Defendant did not personally object to the court’s admonition and did not indicate in any way that he failed to understand the consequences of a refusal to appear.

On June 15, 1999, two days before the scheduled trial date, defendant appeared in court to make a motion to substitute appointed counsel and a motion to represent himself. Following the trial court’s denial of his motions, defendant personally stated in court "Okay. I am not going to make any further appearances in court if that is the case." The court once again admonished the defendant regarding a failure to appear for trial. The court stated, "Let me explain to you that you have the right to be present during your trial. If you refuse to come out of your cell, that will be deemed a waiver of your right to be present." The defendant replied, "Just take me out of the courtroom. I don’t want to hear nothing. I’m not coming back, so do whatever you’re gonna do. I’m not coming back."

On June 17, 1999, the scheduled trial date, defendant refused to come out of his cell at the jail. The deputy sheriff at the jail, Sergeant Escandon, read an admonishment to defendant that had been drafted jointly by the court and counsel, notifying defendant that he had a right to be present at trial, and a right to confront witnesses at trial, and that a refusal to leave his cell would constitute a waiver of those rights. Defendant stated to the deputy at the jail that he did not wish to participate in a "kangaroo court." He also stated that, "I might go later. I don’t know. It’s not important to me." Defendant then stated he had nerve damage and a sciatic condition that meant he could not perform procedures required prior to transportation to court, such as bending over for a search of his anal orifice. The admonishment and defendant’s statements were videotaped and the tape was played in court.

Defense counsel did not object that the court was without jurisdiction to proceed in the absence of the defendant, and only raised the issue of whether defendant had a medical excuse for not appearing in court. The court determined that defendant was malingering again and was trying to manipulate the system for his benefit by refusing to come to court and by engaging in obstructionist behavior. The court found that defendant had voluntarily absented himself from the courtroom on the trial date. The panel of prospective jurors was then brought into court and the trial commenced in the absence of the defendant.

On the following day, June 18, 1999, defendant once again was not present in court. Earlier that morning, at the jail, defendant was read the same admonition concerning his refusal to come to court, and once again his refusal was videotaped. The court decided to proceed with jury selection in the absence of the defendant. Defense counsel made no objection based on a lack of jurisdiction, and specifically stated, "I have nothing to add." A jury was impaneled and the prosecution proceeded with opening statement and its case-in-chief.

On the following Monday, June 21, 1999, defendant came to court for the purpose of making another motion to substitute appointed counsel. Neither defendant nor his attorney made any jurisdictional objection to fact that the court had proceeded to commence trial on the matter in the absence of the defendant. Defendant explained his past behavior was caused by his fear of the Three Strikes law and his lack of confidence in his counsel. He stated that he was "scared to go to court," and was "terrified to go to court." Counsel then pointed out that defendant’s behavior, including not coming to court, started long before her representation began. The court denied the motion to substitute counsel, and mentioned that the jurors were waiting in the hallway. Defendant asked if he could "be excused from the courtroom," and said he did not want to be present during his trial. The court asked defendant if he was waiving his appearance and he said he was until he had a discussion with his attorney at the lunch break. The court then took a recess for lunch. After the lunch recess, the court noted that defendant was not in court. Defense counsel indicated that defendant had said he was not coming out for the afternoon session. Counsel did not object to the absence of the defendant, and stated she was "[r]eady to proceed with the trial."

On the next day, June 22, 1999, the trial resumed and defendant once again was not present in court. On June 23, 1999, defendant came to court for the purpose of making another complaint about his representation by appointed counsel, and for the purpose of testifying in his own defense. He did not make any objection to the court commencing trial or proceeding with the trial in his absence. After hearing his complaints about counsel, the court allowed counsel to continue representing defendant. The court then allowed defendant to testify on his own behalf. Defendant testified that he did not commit the charged burglaries and claimed he was at home at the time of the burglaries. Defendant refused to answer any questions on cross-examination, and then improperly informed the jury that the People were trying to give him 140 years and "strike me out." The court sent the jury out, and before the court could admonish defendant, he stated, "I don’t want to continue with this trial." Defendant acknowledged he had been warned he would be removed if there was an outburst, and stated, "Let me know when it’s time for me to be sentenced." The court told him that if he did not calm down and stop volunteering comments to the jury he would be viewed as having waived his appearance. Defendant stated, "I don’t want to be part of this." When the court finally ordered defendant removed and asked him if he at least wanted to listen to the proceedings on a loudspeaker, he stated, "I don’t want to hear anything. This is a kangaroo court." He then reiterated, "I am not going to participate."

On the following day, June 24, 1999, defendant was not in court for jury readback of the reporter’s notes, and counsel stated that she believed defendant had waived his appearance in court until sentencing. Counsel stated that defendant did not come out of his cell to come to court that day "although he was invited."

On June 25, 1999, the jury convicted defendant in his absence of counts 1, 2 and 3, and found true the alleged enhancements. The court then drafted an admonition to defendant notifying him he had a right to be present for sentencing and that if he refused to come to court he would be sentenced in his absence. Defendant refused to come to court for sentencing on July 12, 1999, and his refusal was videotaped. Sentencing was put over for one day so the videotaped refusal could be reviewed. The next day defendant was absent once again. The videotape of his refusal to come to court was reviewed and it was determined that defendant said "No" when asked if he was going to go to court. The court proceeded to sentence defendant in his absence.

Defendant now claims on appeal that his trial was null and void because the trial was commenced in his absence. He asserts that the requirement that the defendant be present at the time of commencement of the trial is jurisdictional, that the right to be present at the commencement of trial is both a federal and state constitutional right, and that the right cannot be waived. He further argues that even if the right could be waived, there was no waiver taken in the instant case that met the formal requirements of Penal Code section 977. Respondent argues that defendant orally waived his appearance at the commencement of the trial and during the trial. Respondent further argues that defendant is estopped to assert a lack of jurisdiction to commence and proceed with the trial in his absence due to his conduct in refusing to come to court after being admonished that the trial would proceed in his absence, his express statements made in court that he was not going to come back to court for his trial and that the court could do what it wanted, his refusals to come to court after being admonished at the jail, and his willing participation and appearances at trial without objection when it suited his purposes and was for his benefit.

A criminal defendant has a right under the Sixth and Fourteenth Amendments to the federal Constitution, and under article I, section 15, of the California Constitution, to be present at his trial. (People v. Hines (1997) 15 Cal.4th 997, 1038-1039.) A defendant also has statutory rights to be present under Penal Code sections 1043 and 977. (Ibid.) The right to be present, however, is a right that is not absolute. For example, a disruptive defendant can be removed from the courtroom without violating his right to be present. (Illinois v. Allen (1970) 397 U.S. 337; People v. Welch (1999) 20 Cal.4th 701, 773.) A defendant who voluntarily absents himself from a trial that has commenced in his presence cannot later complain when the trial continues to a verdict in his absence. (Taylor v. United States (1973) 414 U.S. 17, 18-20; People v. Connolly (1973) 36 Cal.App.3d 379, 385.) A defendant can also waive his personal appearance at trial and allow the trial to proceed in his absence. (People v. Edwards (1991) 54 Cal.3d 787, 809.)

Defendant asserts that a defendant cannot waive his right to be present at the commencement of trial. He distinguishes the commencement of trial from the subsequent proceedings at trial, and claims the waiver procedure cannot constitutionally be applied to the commencement of trial. He relies on Crosby v. United States (1993) 506 U.S. 255, 258-262, in which the United States Supreme Court had to decide "whether Federal Rule of Criminal Procedure 43 permits the trial in abstentia of a defendant who absconds prior to trial and is absent at its beginning." (Id. at p. 256, original italics.) Rule 43 expressly required the presence of the defendant at the impaneling of the jury and other specified phases of the trial, "except as otherwise provided" by other subdivisions of Rule 43. Subdivision (b) of Rule 43 provided that a defendant "shall be considered to have waived the right to be present whenever a defendant, initially present, . . . is voluntarily absent after the trial has commenced . . . ." The Court interpreted this language to mean that a defendant could only waive his appearance by conduct when he failed to appear after initially appearing at the time the trial actually commenced. (Id. at pp. 258-262.) The Court specifically noted it was only interpreting the exact wording of the statutory rule involved and was expressing no opinion at all on whether the right to be present at the beginning of trial could be constitutionally waived in other circumstances. (Id. at p. 261.) The Court merely found that requiring a defendant’s presence at the beginning of a trial serves to assure that any waiver is a knowing one. (Ibid.) The Court therefore did not rule that the right to be present at the beginning of trial could never be waived under any circumstances.

In the case at bar we do not deal with a federal rule of court; rather, we deal with the wording of Penal Code sections 1043 and 977. Penal Code section 1043, subdivision (b) allows a court to continue with a trial in the absence of a defendant only when a trial has commenced in the defendant’s presence and a defendant is disruptive or has voluntarily absented himself. However, subdivision (d) of Penal Code section 1043 expressly provides that subdivision (b) shall not limit the right of a defendant to waive his right to be present as long as the waiver is in accordance with Penal Code section 977. Since a written waiver executed in open court under Penal Code section 977 also serves to assure that the waiver is a knowing one, we find no constitutional bar to making such a waiver effective, even when it includes a waiver of the right to be present at the commencement of the trial. This statutory waiver procedure at issue is quite broad and does not expressly exclude from its reach the commencement of trial when the jury panel is brought in and sworn. It appears to apply to the commencement of trial as well as all other portions of the trial, with certain exceptions for sentencing, pleading, and other specified aspects of the trial.

We first examine the record to determine if defendant properly waived his right under Penal Code section 977, subdivision (b), to be present at the commencement of his trial. We note initially that no written waiver was executed in open court by the defendant as required by Penal Code section 977, subdivision (b). Instead, defendant was advised by the court on April 19, 1999, that he had a right to be present in court, that if he failed to come out of his cell on the trial date it would be considered a waiver of his right to appear and to confront witnesses, that the jury would be picked in his absence, and that the trial would proceed in his absence. On June 15, 1999, two days prior to the trial date, defendant appeared in court and stated, "I am not going to make any further appearances in court . . . ." The trial court once again told defendant that he had a right to be present during trial and that if he refused to come out of his cell it would be deemed a waiver of his right to be present. Defendant in response stated unequivocally, "I’m not coming back, so do whatever you’re gonna do. I’m not coming back." While this oral statement that defendant was not going to come back to court does not follow the precise language set forth in Penal Code section 977 for a written waiver of personal appearance, we find in light of the repeated admonitions given by the court, that defendant was fully informed of his rights and the intention of defendant to waive his personal appearance and remain in his cell was clear. To the extent that no written waiver was executed, any oral waiver obtained was not in accordance with the requirements of Penal Code section 977. (People v. Garrison (1989) 47 Cal.3d 746, 782-783.) However, an oral waiver that does not comply with the written requirements of Penal Code section 977 does not constitute reversible error in all cases and may be found nonprejudicial depending on the circumstances. (Id. at pp. 782-783.) The burden is on the defendant to demonstrate that his absence prejudiced his case or denied him a fair trial. (Id. at p. 783.) Defendant has failed to demonstrate any prejudice caused by commencing trial in defendant’s voluntary absence, and we find no basis for reversal. (Ibid.)

The next question before this court is whether a defendant, who was in custody, and who did not waive his appearance at the time of commencement of trial in strict formal compliance with state law, can later complain on jurisdictional or constitutional grounds that the trial commenced in his absence when defendant was advised that a failure to leave his cell to be transported to court for the commencement of trial would be considered a waiver of his right to be present, and subsequently chose not to leave his cell to be transported to court. We find that a defendant who refuses to come to court under such circumstances is estopped to assert that the trial improperly commenced in his absence. We note, moreover, that in the instant case the defendant not only was advised that a failure to leave his cell would be considered a waiver of his right to be present, but (1) defendant responded to the admonition by affirmatively stating in open court that the court could do what it wanted to but he was not coming back for his trial, (2) no objection was made by counsel on jurisdictional grounds or constitutional grounds at the time trial commenced in defendant’s absence, (3) defendant refused to come to court on the second day of trial after receiving another admonition at the jail, (4) defendant appeared on the third day of trial without making any objection and participated in the proceedings by personally making a motion to substitute counsel, (5) defendant admitted in court during the third day of trial that it was his choice not to come to court when trial commenced, and (6) defendant appeared on the fourth day of trial, without objecting to the commencement of the proceedings in his absence, for the purpose of testifying in his own defense, and used the opportunity to inform the jury that the People were trying to put him away for 140 years in a Three Strikes case. We conclude that in such circumstances public policy demands a defendant be estopped to assert that the court violated his right to be present or acted in excess of its jurisdiction when it commenced trial in his absence. (See In re Griffin (1967) 67 Cal.2d 343, 347 [defendant who seeks or consents to act in excess of jurisdiction is estopped to complain that the ensuing act is in excess of jurisdiction]; People v. Collins (1996) 45 Cal.App.4th 849, 862-865 [defendant is estopped to assert a lack of jurisdiction when he seeks or consents to the act alleged to be in excess of jurisdiction and participates in the act].)

[The portions of this opinion that follow (parts B-C) are deleted from publication.]

Defendant contends that the evidence is insufficient to sustain his convictions for burglary in counts 1 and 2. Specifically, he argues that the fingerprint evidence was insufficient to prove that defendant committed the two burglaries because (1) it is not clear that the fingerprints found on the chair at the Stromberg residence were in fact defendant’s, (2) it is not clear that the chair the prints were found on was the one used during the burglary of the Stromberg residence, and (3) fingerprints are not sufficient in and of themselves as a matter of law to sustain a conviction of a crime. We reject each of these contentions and find the evidence in the instant was sufficient to sustain defendant’s convictions for both burglaries.

The record in the case at bar discloses that defendant’s fingerprints were found on the inside of the Kimble residence on the inside ledge of a window over a sink, on the wall by the sink, and on the tile around the sink. All of these prints were found near the point of entry, which was a window over the sink that had been forced open sometime on the night of August 17, 1998, or early morning hours of August 18, 1998. The window screen had been removed and was recovered in a neighbor’s bushes near Marine Stadium. The areas near the sink and on the inside of the window ledge were not "portable" or movable, were not used by the public, and were accessible only to the Kimble family or persons who had permissible access. Defendant did not have permission to enter their residence and the Kimbles did not know defendant.

It is an obvious and reasonable inference that the fingerprints were left by the burglar who entered the Kimble residence after removing the screen and forcing the window open. It is an equally obvious and reasonable inference that the person who left the fingerprints was defendant. The fingerprint expert testified that five of the latent prints recovered from the Kimble residence were made by defendant’s right thumb, left middle finger, right palm, and left palm. As the Supreme Court noted in People v. Andrews (1989) 49 Cal.3d 200, 211, fingerprint evidence is the strongest evidence of identity, and is ordinarily sufficient alone to identify the defendant as the perpetrator of a crime. (See also People v. Johnson (1988) 47 Cal.3d 576, 601.)

Defendant relies primarily upon Mikes v. Borg (9th Cir. 1991) 947 F.2d 353, 356-359, in which the court found fingerprints recovered from a turnstile post found at a murder scene were insufficient by themselves to prove the identity of the killer, since there was no evidence to show that the fingerprints were left on the post at the time of the murder. Indeed, the court emphasized that the turnstile posts were of a type commonly used in public places such as grocery stores, and could have been touched by the defendant as a member of the public long before the murder occurred. (Id. at pp. 358-359.) The situation in the instant case is quite different. In the instant case the inside window ledge, the wall over the sink, and the area near the sink, were not accessible to defendant as a member of the public, and had not previously been located in an area where defendant had access to them. The burglary of the Kimble residence did not involve a movable item such as a turnstile post, but rather involved the inside portion of the burglarized house at the exact point of entry. Further, the pattern of prints indicated that defendant touched the window ledge, the wall over the sink, and the area near the sink, which was exactly where fingerprints would be expected if defendant had crawled through the window over the sink, and then crawled onto the counter near the sink as he entered. This case is distinguishable from Mikes and does not suffer from the problems involved in that case. Here, the evidence was sufficient to show that the fingerprints were left at the time of entry through the window and was therefore sufficient to show that defendant burglarized the Kimble residence as charged in count 1.

As to the burglary of the Stromberg residence, the fingerprints on the blue and white chair, which was found directly under the bedroom window with the bent screen, were determined to be from defendant’s left ring finger and right ring finger. Defendant argues on appeal that the chair dusted for prints might not have been the one used to commit the burglary because it was described as a folding chair by the technician that dusted it, while Mr. Stromberg described it as a patio chair and not a folding chair. However, the discrepancy in testimony and its weight was simply a matter for the jury to determine, and the jury was well aware that the technician who dusted the chair testified that the chair was blue and white and was located beneath the bedroom window, and Mr. Stromberg also described the chair as a blue and white chair located beneath the bedroom window. The clear inference is that the chair that was dusted was the chair used in the burglary.

Defendant also argues that the testimony was not clear that the prints recovered from the chair were his prints. Our review of the record, however, demonstrates that the identification technician who made the comparison of the prints did in fact testify that he compared the prints from the chair with exemplars of defendant’s prints and concluded that they were made by the same person.

Defendant also relies once again on the holding in Mikes v. Borg, supra, 947 F.2d at pages 356-359, to argue that fingerprints found on a movable object such as a patio chair are insufficient by themselves to establish the identity of the perpetrator in the absence of evidence that the prints were placed there at the time of the crime. We conclude that in the case at bar there was sufficient additional evidence that placed defendant at the scene of the crime at the time the burglary was committed. The evidence shows that defendant was in the Marine Stadium area in the 5300 block of Appian Way in the late night to early morning hours of August 17 to August 18, 1998. This is clear because his fingerprints were found inside of the Kimble residence and could only have been placed there after the Kimbles went to bed on the night of August 17 and before they woke up early in the morning on August 18. The screen from the Kimble residence was found by Mr. Kimble as he walked toward Marine Stadium, which was close to his house. The screen was placed there by the burglar, who was determined to be defendant based on the fingerprints he left inside the Kimble residence. Defendant then went to the 5300 block of Paoli Way, which was next to Marine Stadium, since that is where he discarded the purse of Mrs. Kimble. The purse was located by Ms. Collis as she was gardening at her house early in the morning of August 18. Ms. Collis lived in front of Marine Stadium in the 5300 block of Paoli Way. Ms. Collis lived only a few houses away from the Kimble residence. All of this evidence places defendant in the 5300 block of Paoli Way at the approximate time of the burglary of the Stromberg residence, which also occurred late at night on August 17, 1998, and in which a purse was also taken. The Stromberg residence was located at 5307 Paoli Way, which was close to the Kimble residence. The evidence also showed that the method of entry in both burglaries that occurred close in time and in the 5300 block of Appian Way and Paoli Way, was by crawling through a window that was at least four feet off of the ground. This evidence is more than sufficient to prove that defendant was in the area of the burglary of the Stromberg residence at the time of the burglary and that he committed a remarkably similar burglary at the Kimble residence at approximately the same time. Given all of this evidence, a jury could conclude that the fingerprints found on the chair used in the commission of the burglary at the Stromberg residence were left there at the time of the commission of the crime and not at some other time. We therefore find the evidence is sufficient to sustain the conviction for burglary on count 2.

C. The Denial of Defendant’s Motion to Substitute Appointed Counsel

Defendant contends that the trial court erred when it denied defendant’s June 21, 1999, motion to substitute appointed counsel, that was made on the third day of trial. Defendant contends that the motion should have been granted "because the record clearly showed that [defendant] and defense counsel had become embroiled in such an irreconcilable conflict that ineffective representation of was likely to result," thereby depriving defendant of his constitutional right to the effective assistance of counsel. Defendant points to two specific areas to argue that the breakdown of the attorney-client relationship was irreconcilable. First, he argues that there was a "profound" disagreement over strategy relating to counsel’s decision not to request a pretrial lineup under Evans v. Superior Court (1974) 11 Cal.3d 617. Next, he asserts that "the most significant indication of the complete breakdown between [defendant] and defense counsel" was a discussion counsel had with a deputy sheriff in the lockup area in which defendant overheard counsel tell the deputy that defendant was "going to get" or "was facing" a life sentence. (Original italics.) Defendant claims on appeal that this revelation that his counsel believed he was going to be convicted and receive a life sentence "so disheartened [him] that he could not countenance going forward with defense counsel as his attorney." We have reviewed the record of the hearing on the motion and find that the court properly denied the motion to substitute appointed counsel.

On June 21, 1999, on the third day of trial, defendant appeared in court to make a motion to relieve appointed counsel and to substitute new appointed counsel. Defendant was provided a closed hearing in which he was allowed to fully explain the basis for his motion. Defendant informed the court that he believed counsel had talked to a deputy sheriff "about the amount of time that I’m going to get," and that he believed that this conversation demonstrated counsel’s "intent to possibly sabotage my case." He described the conversation as taking place in the lockup area and being between his counsel and a deputy sheriff. He stated that he heard the deputy ask if it made any difference if defendant had an attorney or represented himself, and he heard his counsel state that it made no difference because he would get a life sentence either way. Because of this conversation, defendant stated he had no confidence in his counsel’s ability to defend him. Defendant asserted that any bizarre behavior he had previously exhibited was based on the fact that he had no faith in his attorney and "saw no other way of defending myself." Defendant then mentioned that he also had a disagreement with counsel over whether a lineup should have been requested to see if a witness who had identified his photograph in a six-pack photo display could pick him out of a live lineup. Counsel responded to defendant’s allegations and stated that his bizarre behavior began long before she had even been assigned to his case and long before she had any conversation with the deputy sheriff. Counsel said that defendant never discussed the case with her and refused to cooperate with her from the beginning of her representation of him. She reiterated that it was true that "there is very little hope in this case," but represented that she hoped to do "something to make the jurors think that there is a reasonable doubt." Counsel stated that "far from trying to sabotage this case, I am trying to put on a defense which will hopefully result in something less of a term than the rest of the defendant’s life in prison." She denied an inability to defend the defendant and said she "always" looks for a "break" and frequently finds one. She presented her reasons for not requesting a lineup, and noted that the six-pack photo display was very suggestive, and reinforced the identification of defendant by the witness. The chances were that that suggestiveness would influence any subsequent identification from a live lineup. Additionally, she noted that she would normally not consider a lineup unless her client told her he did not commit the crime, because if he committed it a lineup would increase the chance of another identification being made by a person who actually saw her client. She again pointed out that defendant had refused to cooperate with her or discuss the case with her. As to the conversation with the deputy, counsel said a conversation took place six days earlier, on June 15, 1999, when defendant made his pro. per. motion. Counsel stated that she indicated to the deputy that third strike defendants are sometimes better off if they are pro. per. since they don’t always follow the rules and can do things in court that attorneys cannot ethically do. She was explaining his conduct in terms of the fact that he was facing and could receive a sentence of life in prison. She denied discussing any confidential information with the deputy. The court then found that there was nothing wrong with an attorney expressing a view of the case that differed from that held by a defendant, that an attorney controlled matters of trial tactics, that the attorney in this case had not acted ineffectively or improperly, that defendant’s own conduct and refusal to cooperate was the only thing interfering with his defense, that counsel would do her "utmost" to effectivel

The principles governing the handling of motions to substitute appointed counsel in the trial court, and the principles governing our review of the trial court’s ruling on such a motion, were set forth in People v. Welch, supra, 20 Cal.4th at pages 728-729. In Welch, the court noted that under the Sixth Amendment right to assistance of counsel a defendant is entitled to substitute another appointed attorney if the record clearly shows that the first appointed attorney 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. (Id. at p. 728.) The Welch court further noted that when a defendant seeks to discharge appointed counsel and substitute another attorney, and asserts inadequate representation, the trial court must conduct a hearing and permit the defendant to explain the basis of his contention and to relate specific instances of the attorney’s inadequate performance. (Ibid.) The Welch court then noted that tactical disagreements between the defendant and his attorney do not by themselves constitute an irreconcilable conflict, since the attorney in "the captain of the ship" and can make all but a few fundamental decisions relating to the case. (Id. at pp. 728-729.) In Welch, the court stated that on appeal the reviewing court reviews the ruling of the trial court for an abuse of discretion. (Id. at p. 728; see also People v. Barnett (1998) 17 Cal.4th 1044, 1085.)

Other cases have recognized that the Sixth Amendment does not guarantee a criminal defendant a good-natured or "meaningful relationship" with his attorney (Morris v. Slappy (1983) 461 U.S. 1, 13-14; People v. Clark (1992) 3 Cal.4th 41, 118.), and that a defendant’s claimed lack of trust in, or inability to get along with, an appointed attorney is insufficient as a matter of law to justify the appointment of a new attorney (People v. Berryman (1993) 6 Cal.4th 1048, 1070).

In the instant case, the record discloses that the trial court provided defendant an opportunity to fully explain his disagreements and dissatisfaction with counsel’s performance, and to explain why he believed that a conflict existed that would justify substitution of counsel. Our review of the reasons stated by the defendant lead us to the conclusion that the trial court did not abuse its discretion when it denied the motions to appoint new counsel. Clearly, defendant failed to establish that counsel was inadequate or that an irreconcilable conflict existed that was likely to lead to the ineffective assistance of counsel.

All of the reasons stated by defendant basically boil down to his assertion that he and counsel "disagreed over tactics" in the case concerning counsel’s decision not to request a lineup, and that he "lacked trust" in counsel because he allegedly overheard her say to a deputy sheriff that he faced or would get a life sentence. As to the disagreement over tactics, counsel succinctly and convincingly set forth on the record her reasons for not requesting a lineup, and we find them persuasive and within her professional judgment. As to the statement counsel made that defendant was facing or would get a life sentence, we find that counsel violated no confidentiality rules and did not disclose any information that could be used against defendant in court. She simply stated the obvious fact that defendant was facing a life sentence because he was a third strike defendant. Even if counsel said he was likely to get a life sentence, that consequence was painfully obvious to anyone who knew of his status as a third strike defendant, and had witnessed his failure to appear for court, to cooperate with counsel, to cooperate with the court, and to cooperate with the deputy sheriffs at the jail and in the court lockup. Moreover, counsel explained to the court at the hearing that she simply told the deputy that a pro. per. defendant could do things an attorney could not do because a pro. per. defendant could violate rules whereas an attorney was bound to follow the rules, and therefore a third strike defendant sometimes was better off without an attorney.

We find that the reasons stated by defendant at the hearing were insufficient to justify the removal of existing counsel and the appointment of new counsel. We therefore find that no error occurred when the trial court denied defendant’s motions to appoint new counsel.

[The portion of the opinion that follows (part D) is to be published.]

D. The Denial of Defendant’s Motion to Represent Himself

Defendant contends that the trial court erred when it denied his motion to represent himself. He argues that he had an unqualified right under the federal constitution to represent himself and the trial court violated this right when it ruled his motion was untimely. He also asserts that even if his motion had to be made in a timely fashion, his motion in this case was timely in that it was made two days prior to the trial date and was unaccompanied by a motion to continue. We conclude that the decision whether to grant self-representation status to a defendant is discretionary when the motion is made within days of the trial date, and that trial court did not abuse its discretion when it found the motion to be untimely and denied it based on its findings that the motion was manipulative and that defendant was obstreperous and created a risk of disrupting the proceedings.

While a defendant has a federal constitutional right under the Sixth Amendment to represent himself, in order to invoke an unconditional right he must assert it within a reasonable time prior to the commencement of trial. (People v. Welch, supra, 20 Cal.4th at p. 729; People v. Clark, supra, 3 Cal.4th at p. 98.) A motion that is not made within a reasonable time prior to trial is addressed to the sound discretion of the trial court. (People v. Marshall (1996) 13 Cal.4th 799, 827; People v. Clark, supra, 3 Cal.4th at p. 98.) In exercising its discretion the trial court should consider such factors as the quality of counsel’s representation, the defendant’s prior proclivity to substitute counsel, the reason for the request, the length and stage of the proceedings, and the disruption or delay which might reasonably be expected to follow the granting of such a motion. (People v. Jenkins (2000) 22 Cal.4th 900, 959; People v. Marshall, supra, 13 Cal.4th at p. 827.) Additionally, a trial court may deny such a motion if it finds it is made for the purpose of frustrating the orderly administration of justice. (People v. Marshall (1997) 15 Cal.4th 1, 23.)

Where a defendant raises the motion on the eve of trial, the trial court has discretion to deny the motion. (People v. Clark, supra, 3 Cal.4th at p. 98.) It has been expressly noted by this Court that a motion made within three calendar days of the commencement of trial does not give rise to an unqualified right to self-representation, and a court has discretion to deny such a motion as untimely. (People v. Rudd (1998) 63 Cal.App.4th 620, 626.) Indeed, in People v. Ruiz (1983) 142 Cal.App.3d 780, 789-791, the court found a motion made six calendar days prior to trial was made in such "close proximity" to trial that the decision whether to deny it as untimely was within the discretion of the trial court.

When a trial court exercises its discretion to deny a motion for self-representation on the grounds it is untimely, a reviewing court must give "considerable weight" to the court’s exercise of discretion and must examine the total circumstances confronting the court when the decision is made. (People v. Ruiz, supra, 142 Cal.App.3d at p. 792.) Among the factors a court may consider in exercising its discretion when ruling on a motion made in close proximity to trial or after commencement of trial is whether defendant’s prior conduct has demonstrated a likelihood that proceedings would be disrupted in the event the motion for self-representation was granted. (People v. Jenkins, supra, 22 Cal.4th at pp. 962-963.) This includes a consideration of defendant’s manner and demeanor, any previous disruptive behavior, any refusals to come to court whereby he absented himself from the proceedings, and any lack of control over his emotions that would demonstrate a risk of disruption of future court proceedings. (Ibid.) In exercising its discretion a court may rely on a defendant’s previous conduct whereby he absented himself from the proceedings, and the court need not credit any assurances made by the defendant at the time of the motion that he would appear in court each day and not cause any further disruption of the proceedings. (Id. at p. 962.) The trial court can also consider the risk that a particular defendant might tell jurors of matters that the court had withheld from them. (Ibid.)

As previously summarized in this opinion, defendant had refused to come to court on many occasions, and had disrupted the proceedings on the few occasions he did appear. He was found to have malingered and pretended to be physically and mentally disabled in an effort to thwart the criminal justice system from working in his case. He did everything he could to sabotage the proceedings, including fighting with deputies, acting as if he was being attacked by imaginary "bugs" or people, claiming to be possessed by different people, claiming to have various physical maladies that prevented him from coming to court, not cooperating with doctors or mental health experts, not cooperating with his attorneys, stripping naked while in the holding tank to prevent having to go into the courtroom, and rubbing feces on himself to prevent his extraction from his cell when he refused to go to court. Given this lengthy and consistent history of disruptive behavior, the trial court acted well within its discretion when it found the motion for self-representation was manipulative and that defendant posed a real risk of disrupting future proceedings if the motion was granted.

Moreover, the court was entitled to reject defendant’s assertions that he would behave properly in the future, and its decision in this regard was fully supported by the record. The judges of our courts are entitled to conduct their proceedings in an orderly and just fashion, and are not required to place their dockets and courtrooms at the mercy of obstreperous and unruly defendants with long track records of disruptive behavior. Such defendants, may not thwart the functioning of the criminal justice system in this state by making manipulative motions designed to result in the disruption of serious court proceedings for the perceived benefit of the defendant. Just as defendants have certain rights in court, so do courts have the power to preserve their dignity and their basic ability to function. In this case the court acted properly in denying the motion for self-representation and no abuse of discretion occurred.

[The portions of the opinion that follow (parts E-I) are deleted from publication.]

E. Consecutive Sentences on Counts 1 and 2

Defendant contends that the trial court erred when it ruled that consecutive sentences were mandated on counts 1 and 2. Defendant asserts that consecutive sentences were not mandated because the two crimes were not committed on the same occasion and did not arise from the same operative facts. He also asserts that counsel was ineffective for not raising this issue in the trial court at the time of sentencing. We find no merit to the contention that the two separate burglaries of separate residences on different streets with different points of entry were committed on the same occasion or arose from the same operative facts. We also reject the idea that counsel was ineffective for not raising this meritless issue.

Defendant points out on appeal that consecutive sentences under the Three Strikes law are not mandated when the current felony convictions are committed on the same occasion or arise from the same set of operative facts. (See People v. Hendrix (1997) 16 Cal.4th 508, 513.) In this context, the term "same occasion" refers to a close temporal and spatial proximity between the acts underlying the current felony convictions. (People v. Deloza (1998) 18 Cal.4th 585, 595 [finding robberies of different people who were all located within the same store constituted offenses committed on the "same occasion" because the crimes were committed "essentially simultaneously against the same group of victims"].) Defendant then argues that the two burglaries in the case at bar must be considered to have been committed on the same occasion because they were both committed on the same night and the two houses burglarized were close to one another although they were separate single family residences located on different streets.

We find that this argument is without merit. We conclude that the separate burglaries of two different single family residences located on different streets and occupied by totally different families with different points of entry and means of entry at each location do not constitute offenses committed on one occasion even if the separate burglaries took place on the same night. (People v. Lawrence (2000) 24 Cal.4th 219, 228-229 [crimes committed at two separate locations within one block of each other that occurred within two to three minutes of each other and involved two separate groups of victims each of whom had no connection to the other crime scene were not committed on the "same occasion" for purposes of sentencing under the Three Strikes law].) We also reject the assertion that such separate burglaries arose from the same operative set of facts, since each house was on a different street, each burglary involved a separate and distinct entry, and each house was inhabited by a separate and distinct family group and there were no connections between the family groups. (Id. at pp. 230-234 [finding different operative facts when the crimes occurred a block apart, occurred two to three minutes apart, and involved separate unrelated groups of victims].)

We note that the result reached in People v. Durant (1999) 68 Cal.App.4th 1393, 1405, is consistent with and supports our ruling here. In Durant, the defendant argued that concurrent sentencing was proper under the Three Strikes law because his offenses occurred on the same occasion and arose from the same set of operative facts. The defendant in that case had burglarized or attempted to burglarize a number of homes in the same condominium complex on the same day. The reviewing court held that consecutive sentences were mandated by the Three Strikes law since none of the crimes occurred on the same occasion or arose from the same operative set of facts. (Id. at pp. 1405-1407.) The Durant court noted that each crime was complete when the next crime occurred, that the crimes did not occur nearly simultaneously at the same location, and that each entry at each separate location required a different intent. (Ibid.) We agree with the reasoning of Durant and reject defendant’s suggestion that we decline to follow it. We reach the same conclusion that the Durant court did, namely that consecutive sentences were mandatory for each of the separate burglaries. (See also People v. Lawrence, supra, 24 Cal.4th at pp. 225-234.)

Defendant contends that the evidence was insufficient to prove that he was the person who was convicted of the first degree burglary in case No. A028550, which was alleged as a prior serious felony conviction under Penal Code section 667, subdivision (a)(1), and was used to enhance his sentence by five years. We have reviewed the evidence presented to the jury on this matter and conclude that the evidence is indeed sufficient to sustain the true finding on the allegation that defendant suffered a prior conviction of first degree burglary in case No. A028550.

The documentary evidence included a certified copy of the abstract of judgment in case No. A028550, showing that Johnny Lee Howze was convicted of first degree burglary on April 4, 1984, and was sentenced to serve four years in state prison on May 2, 1984. The documentary evidence also included a certified copy of a photograph of J L Howze taken on May 7, 1984, at the state prison that was transmitted by the prison officials along with the abstract of judgment in case No. A028550. The photograph indicated the prison identification number assigned to inmate John Howze was C85534. A certified copy of fingerprint exemplars from inmate Johnny Lee Howze indicating his race, height, weight, and date of birth was also transmitted from the prison officials and presented to the jury. The original of this fingerprint exemplar card included in the transmission from the prison was in the possession of the Long Beach Police Department, and was examined by Manuel Lara. Mr. Lara testified in court that he examined the original card containing defendant’s prints and compared them to the copy sent from the prison and determined that they were made by the same person. Another certified copy of separate fingerprint exemplars from inmate John Lee Howze was also transmitted that indicated they were taken from an inmate with identification number C85534, who was received at the prison on May 7, 1984. This fingerprint exemplar was also compared by Mr. Lara to known exemplars of defendant’s prints and he determined that all the prints were made by the same person.

The fingerprint evidence, the photograph of inmate J L Howze, the abstract of judgment, the date of sentence, the date of receipt at the prison, the identification number assigned to defendant, and the other information included in the record in this case are more than sufficient to sustain the finding by the jury that defendant did suffer the prior conviction in case No. A028550. We therefore reject defendant’s contention that the evidence was insufficient.

Defendant correctly points out that under Penal Code section 1025, subdivision (c) the identity of the person who committed the alleged prior convictions is to be tried by the court rather than the jury. He contends that the trial court erred in his case by not making a finding that defendant was the person who suffered the alleged prior convictions. He further argues that the error is reversible and that he should be resentenced without reference to any prior conviction enhancements. We find the court did not err in allowing the jury to determine if defendant suffered the prior convictions, and that the argument of counsel and jury instructions focused the need to find beyond a reasonable doubt that defendant in fact suffered the prior convictions. We also note that defendant waived any objection to this procedure by not objecting at trial to the court’s decision to submit the issue to the jury for determination.

In the case at bar, the trial court informed counsel that it had to determine if the prior convictions constituted serious or violent felonies and the jury has to decide whether the prior convictions "are [defendant’s]." Defense counsel agreed that the court was correct. Both counsel thereafter argued to the jury the nature of the evidence concerning the identity of the person who committed the priors. The prosecutor informed the jury that it had to find "whether Johnny Lee Howze was convicted of the various priors which he is charged with." Defense counsel informed the jury that the evidence was insufficient for the jury to find that "Mr. Howze suffered those residential burglary convictions that are alleged against him in this case." Clearly, the jury understood it was being asked to determine if defendant in fact suffered the prior convictions. It is equally clear that no objection was ever raised to this procedure.

In People v. Vera (1997) 15 Cal.4th 269, 274-278, the court held that a violation of the statutory right to jury trial on a prior prison term enhancement was waived when the defendant did not object to the court conducting a court trial on the prior without obtaining a waiver of the statutory right to a jury trial. Here, a similar situation exists where the defendant did not object to the court submitting the matter to the jury rather than conducting a court trial. In both situations the defendant received a fair factual determination using the standard of beyond a reasonable doubt, and in both situations only a statutory trial procedure was violated. We thus hold that defendant waived review of this issue on appeal by not objecting at trial.

Even assuming, arguendo, that we could review this issue, we conclude that no error occurred that prejudiced defendant in any way when the issue was presented to the jury rather than the trial court. In People v. Riel (2000) 22 Cal.4th 1153, 1206, the court recently stated that "no court has ever held it error to give a defendant a jury trial on the question [of whether a prior conviction from another state contained the same elements as required by California]." While this issue is normally one the trial court is required to make a finding on, the court in Riel concluded that a defendant cannot complain when an issue for the court is instead submitted to the jury. (Ibid.) Here too, the defendant cannot complain of error of prejudice when he was provided with a jury trial on the issue of identity.

H. Cruel and Unusual Punishment

Defendant contends that his sentence of 90 years to life constitutes cruel and unusual punishment under the California and United States Constitutions. (U.S. Const., 8th Amend.; Cal. Const., art. I, § 17.) He argues it is disproportionate to sentences in other jurisdictions, disproportionate to the type of crime committed, disproportionate in light of defendant’s history, and equivalent to a life sentence without possibility of parole because the minimum parole date exceeds his life expectancy.

A defendant must overcome a considerable burden in a challenge under the cruel and unusual punishment provision of the California Constitution. (People v. Weddle (1991) 1 Cal.App.4th 1190, 1196-1197.) "A punishment may violate the California Constitution although not ‘cruel or unusual’ in its method, if ‘it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.’ (In re Lynch (1972) 8 Cal.3d 410, 424 [].) The Lynch court identified three techniques courts used to administer this rule. First, they examined the nature of the offense and the offender. [Citation.] Second, they compared the punishment with the penalty for more serious crimes in the same jurisdiction. [Citation.] Third, they compared the punishment to the penalty for the same offense in different jurisdictions. [Citation.]" (People v. Cartwright (1995) 39 Cal.App.4th 1123, 1136.)

However, a determination can properly be made based on the first Lynch factor alone. (People v. Weddle, supra, 1 Cal.App.4th at p. 1196.) The focus on the offense considers the crime both in the abstract and in view of the totality of the circumstances surrounding its commission, including such factors as motive, the manner in which the crime was committed, the extent of defendant’s involvement, and the consequences of the acts. (Id. at p. 1197.) The focus on the offender considers factors such as defendant’s age, prior criminality, personal characteristics, and state of mind. (Id. at p. 1198.)

In this case, defendant has failed to show that his sentence is grossly disproportionate to the crime committed. The trial judge in this case carried out the express intent of the Legislature, punishing defendant not merely for his current felony convictions but for his recidivism. (People v. Cooper (1996) 43 Cal.App.4th 815, 823-825.) Defendant’s habitual criminal record includes four serious felonies.

The defendant’s record shows that he was a habitual criminal who was a danger to society. Clearly, defendant did not learn from his previous prison sentences to control his behavior to the dictates of society and he did not demonstrate any prospects of obeying the law in the future. He had numerous prior convictions for the same offenses he committed in the instant case, namely first degree residential burglary. Despite prior prison sentences for similar offenses, defendant once again burglarized inhabited dwellings in the instant case. In fact, in the instant case, the occupants of the dwellings were actually in the homes when the defendant entered. The chance of an encounter with the occupants was great and it was only through luck that defendant and the occupants did not come face to face during the burglaries. The potential for violence in such situations is so great that burglary forms the basis for first degree murder under the felony murder theory if someone dies during the commission of such a burglary. Few crimes create such a potential for tragic consequences to life as residential burglary. In the Kimble burglary defendant took a kitchen knife during the burglary. Mrs. Kimble told the probation officer that she was "thankful that she didn’t walk in when the burglary was in progress." Mr. Kimble noted that he was 71 years old and would have been "no match for defendant."

His past performance on parole or probation was atrocious and his behavior showed no rehabilitation whatsoever. In addition to the prior burglaries dating back to 1983, defendant had also been convicted of resisting arrest in 1987, trespass in 1989, possession of a controlled substance in 1990, and infliction of corporal injury on a spouse or cohabitant in 1998. As noted by the probation officer in the instant case, "[d]efendant’s criminal record serves to characterize the threat that he presents to society." The probation officer also noted defendant’s refusal to be interviewed and his failure to appear in court, and reported that this behavior suggested an anti-social nature. The probation officer further noted that defendant had "failed to avail himself of numerous opportunities presented for rehabilitation."

"One in [defendant’s] position has been both graphically informed of the consequences of lawlessness and given an opportunity to reform, all to no avail. [A recidivism statute] thus is nothing more than a societal decision that when such a person commits yet another felony, he should be subjected to the admittedly serious penalty of incarceration for life, subject only to the State’s judgment as to whether to grant him parole." (Rummel v. Estelle (1980) 445 U.S. 263, 278.)

In short, defendant has not been sentenced to life in prison only because he was convicted of burglary. Rather, he was so sentenced because he is a serious and habitual offender who has demonstrated repeatedly that he has no intention of abiding by the laws of this State specifically designed to protect members of society from habitual lawbreakers. Defendant’s sentence is not so disproportionate to his crimes that it shocks the conscience and offends fundamental notions of human dignity. The reason the sentence is lengthy reflects the fact that defendant committed two separate burglaries and a separate drug possession felony on different occasions, thereby creating the need for consecutive sentences. His punishment for each crime is not cruel and unusual, and the consecutive sentencing does not itself constitute cruel and unusual punishment. In this regard, the fact that the minimum parole eligibility date exceeds his life expectancy does not convert the sentence into one that constitutes cruel and unusual punishment. Indeed, in People v. Ayon (1996) 46 Cal.App.4th 385, 396-401, disapproved on other grounds in People v. Deloza, supra, 18 Cal.4th at page 600, footnote 10, the court found a sentence of 240 years to life imposed in a third strike case as a result of consecutive sentences for multiple crimes did not constitute cruel and unusual punishment under federal or state law. Accordingly, we find that the sentence of 90 years to life in the instant case does not violate either the state or federal prohibition against cruel and unusual punishment.

Defendant correctly contends that the trial court should have stricken rather than stayed imposition of the two prior prison terms alleged under Penal Code section 667.5, subdivision (b), once it imposed separate five-year sentence enhancements for the same prior convictions alleged as prior serious felonies under Penal Code section 667, subdivision (a)(1). The Attorney General concedes that under People v. Jones (1993) 5 Cal.4th 1142, 1151-1153, prior prison term enhancements must be stricken once prior serious felony conviction enhancements are imposed when the enhancements are based on the same convictions. Since the trial court stayed rather than struck the prior prison term enhancements in case Nos. A028550 and NA002921, we will order that those prior prison term enhancements under Penal Code section 667.5, subdivision (b), be stricken and that the abstract of judgment be modified accordingly.

We also note that the abstract erroneously reflects that there were three prior prison terms that were stayed, when in fact there were only two, since the third alleged prior prison term in case No. A027034 had previously been stricken by the trial court during the course of the trial and was never submitted to the jury. Therefore, the abstract must also be modified to delete reference to a third enhancement for a prior prison term.

Defendant also correctly notes and the Attorney General concedes that defendant is entitled to two additional days of presentence conduct credits. Defendant was awarded conduct credit for 162 days and credit for 328 actual days spent in custody, for a total of 490 days. In fact, he should have been awarded conduct credit of 164 days rather than 162 days. (See People v. Bravo (1990) 219 Cal.App.3d 729, 735.) We will therefore modify the judgment to award the two additional days of credit, and will order the abstract of judgment modified to reflect that defendant is awarded 164 days of conduct credit plus 328 days of actual custody credit for a total presentence credit of 492 days.

[The remainder of this opinion is to be published.]

The judgment is modified to strike rather than stay the two prior prison term enhancements under Penal Code section 667.5, subdivision (b). The judgment is also modified to award 164 days of conduct credit rather than 162 days, so that the total presentence credits are 492 days rather than 490 days. The clerk of the superior court is directed to modify the abstract of judgment to delete reference to any prior prison term enhancements being imposed and stayed, since the prior prison term allegation for case No. A027034 was stricken during trial and since the prior prison term enhancements for case Nos. A028550 and NA002921 have been stricken on appeal. The clerk is further directed to modify the abstract of judgment to reflect that defendant is awarded 164 days of conduct credit rather than 162 days, and that the total presentence credit is 492 days rather than 490 days. The clerk is then directed to forward the corrected abstract to the Department of Corrections. The judgment is affirmed in all other respects.

CERTIFIED FOR PARTIAL PUBLICATION

We concur:

ARMSTRONG, Acting P.J.

GODOY PEREZ, J.