Opinion
H022984.
7-23-2003
THE PEOPLE, Plaintiff and Respondent, v. DARRYL ERIC PUGH, Defendant and Appellant.
A jury found Darryl Eric Pugh guilty of three felonies: possession of cocaine base for sale (Health & Saf. Code, § 11351.5 [count 1]), possession of cocaine base (Health & Saf. Code, § 11350(a) [count 2]), and maintaining a place for narcotics activities (Health & Saf. Code, § 11366 [count 5]). It found defendant guilty of two misdemeanors: resisting arrest (Pen. Code, § 148(a)(1) [count 3]) and attempted destruction of evidence ( §§ 664, 135 [count 4]). In a bifurcated proceeding, the trial court found true allegations that defendant had suffered five "strike" convictions ( §§ 1170.12, 667), had served five prior prison terms ( § 667.5, subd. (b)), and had two prior felony drug convictions (Health & Saf. Code, § 11370.2, subd. (a)). Defendant was sentenced to state prison for a term of 31 years to life. On appeal defendant claims his trial counsel provided ineffective assistance regarding his motion to suppress evidence ( § 1538.5) by failing to elicit evidence that parole agents gave him only three to five seconds to answer the door to his motel room. He also contends the trial court erred by admitting letters handwritten by his motel room companion or, alternatively, by failing to give accomplice instructions (CALJIC No. 3.11) in light of the admission of those letters. He claims his convictions must be reversed because an agent who entered the motel room improperly informed the jury that he was a parole officer. Defendant next contends there was insufficient evidence to show that he opened or maintained the motel room for selling, using, or giving away cocaine; assuming arguendo there was substantial evidence to support count 5, he claims that count 5 must be reversed because (1) his trial counsel provided ineffective assistance by allowing the prosecutor to argue that defendant could be convicted based upon a "use" theory (2) the court erred by instructing on a "use" theory and (3) the court failed to instruct that the continuity requirement applies to both maintaining and opening. With regard to Count 2, defendant contends the trial court erred by responding to the jurys inquiry with an improper definition of the word "control" and that that count was necessarily encompassed in the possession for sale count. With regard to his sentence, defendant contends he is entitled to a section 654 stay as to Count 5 and as to one misdemeanor count. He also argues that his 31-year-to-life sentence constitutes cruel and/or unusual punishment.
All further statutory references are to the Penal Code unless otherwise specified.
By a petition for writ of habeas corpus (H024946), Pugh claims his counsel provided ineffective assistance through a series of acts and omissions. Specifically, he claims his trial counsel provided ineffective assistance by (1) failing to elicit evidence that parole agents gave insufficient knock-notice before entering the motel room and by failing to renew the suppression motion after the parole officer testified that he gave defendant only three to five seconds to answer the door (2) failing to properly frame his objection to the introduction of Christophers purported handwritten letters (3) failing to interview Pughs brother regarding ownership of the duffel bag that contained drug packaging materials and (4) permitting the prosecutor to argue that the jury could convict Pugh of maintaining a place for narcotics activities based upon a theory that Christopher used drugs in the motel room. We shall issue a separate order regarding that petition on the same date this opinion is filed.
I. Facts
Agent Theodore Roberson had known defendant for several years. On May 6, 1998, defendant told Roberson he would be moving to an apartment on California Street in Mountain View on May 7 and provided Roberson with the address and apartment number where he would be living.
All further calendar references are to the 1998 unless otherwise specified.
On May 13, Roberson and two other agents went to the San Jose Inn in San Jose regarding an unrelated investigation. While there, they noticed defendants yellow Cadillac in the motel parking lot and confirmed it was defendants car by running a registration check. They next checked the motel registration and learned that defendant had been a registered guest in room 218 since May 8. He had paid for five days at $ 75 per night for himself and a woman later identified as Sarah Christopher.
The agents obtained the key to defendants second-floor motel room. On the way to the room, they saw Christopher coming down the opposite staircase. Garcia knocked on the door of room 218, announced the agents presence, and waited for a response. After "three to five seconds," when no one responded, the agents used the passkey to enter the room. They found defendant seated on a bed in the back room of the two-room suite. He was wearing boxer shorts and had a cast that ended below the knee on his right leg. Defendant was taken into custody. Looking around the room, the agents saw a duffle bag in the closet that contained plastic baggies, a cell phone, a pager, a cosmetics bag containing drug paraphernalia, and some narcotics in the living room. Roberson sealed the scene and summoned the Santa Clara County Narcotics Task Force to complete the investigation. After defendant was arrested but before the task force arrived, Christopher entered the motel room and was detained.
When Officer Craig Middlekauff and other task force members arrived, Roberson turned the scene over to them. Middlekauff qualified as an expert in determining whether a suspect is under the influence of stimulants, whether there are usable quantities of cocaine base, and whether drugs are possessed for sale. The task force gathered from room 218 several items of evidence, including the cosmetics bag that contained a kit for using drugs, a small amount of rock cocaine in a plastic baggie, two glass pipes, a cup containing suspected cocaine, clipped corners of plastic baggies that contained apparent narcotic residue, and a steel wool pad that could be used as a pipe filter for narcotics. Several plastic sandwich baggies on the floor had corners cut off, indicating the corners had been used to package drugs. A bag containing plastic baggies and razor blades was on the bed. Scissors commonly used for cutting narcotics were found on the bed where defendant was arrested, as well as about 70 baggies. Also on the bed were several coin baggies containing drug residue that tested positive for cocaine. A pager was on a bedroom table. A mans toiletry kit was in the bathroom, and defendants wallet and a notebook were on the nightstand. The closet contained male clothing.
The agents found a notebook near the couch that contained Christophers court documents, as well as a two-page document containing numbers and dates. In Middlekauffs expert opinion, the two pages were "pay/owe" sheets which set forth dates and prices for about 40 drug transactions. The notebook contained loose personal notes to defendant in Christophers handwriting. Several notes were written to "Darryl" and signed "Sarah"; in relevant part, they stated. "Darryl, I make deliveries for you," and "the way that you sometimes hold dope over my head is bullshit and its cruel."
In Middlekauffs expert opinion, defendant was not under the influence of a controlled substance at the time of arrest while Christopher appeared to be.
The parties stipulated that Christopher testified positive for cocaine that night.
While the task force was at the motel, agents went to defendants Mountain View apartment where they found male and female clothing, more of Christophers handwritten letters, a recent rental agreement, and a rent receipt in defendants name for $ 1,495.
Correctional Officer Ryan Kimber testified that the night defendant was booked he was placed in a "dress-out" room to change into a jail uniform. Because defendant was not cooperating, three officers accompanied defendant into that room. Before defendant put on the uniform, Kimber searched the cast on defendants leg, and defendant became very upset. After Kimber felt a hard object in the cast, he ordered defendant to remove it. Defendant removed a small plastic bag containing a large white rock from his cast and immediately put the bag in his mouth. When the officers grabbed defendant to prevent him from swallowing, defendant wrestled them to the floor. After a struggle, defendant complied with the order to spit out the bag. The rock inside the bag tested positive for cocaine; the test revealed the rock to contain 3.88 grams of cocaine base.
Middlekauff provided his opinion that the rock of cocaine base in defendants cast was possessed for sale because that quantity was over seven times normal daily usage.
At the outset of the trial, the prosecutor advised the court that the 3.88 grams of cocaine base constituted the basis for the possession for sale count and that the small quantity found at the motel room constituted the basis for the possession count.
II. Discussion
A. Ineffective Assistance Regarding Defendants Motion to Suppress Evidence
Defendant claims his trial counsel provided ineffective assistance during the suppression hearing on a "knock notice" claim by failing to elicit evidence that the agents gave defendant only three to five seconds to answer his motel room door. He claims counsel compounded this error by failing to renew the suppression motion after learning at trial that the agents had given defendant three to five seconds to respond. Defendant argues that, but for counsels failures, he would have prevailed on his motion to suppress evidence and "eliminated" the governments evidence.
"A defendant seeking relief on the basis of ineffective assistance of counsel must show both that trial counsel failed to act in a manner to be expected of reasonably competent attorneys acting as diligent advocates, and that it is reasonably probable a more favorable determination would have resulted in the absence of counsels failings." (People v. Price (1991) 1 Cal.4th 324, 440, 821 P.2d 610.) We need not determine whether counsels performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. "If it is easier to dispose of an ineffective claim on the ground of lack of sufficient prejudice, . . . that course should be followed." (Strickland v. Washington (1984) 466 U.S. 668, 697, 80 L. Ed. 2d 674, 104 S. Ct. 2052.)
Defendants suppression motion was limited to the events surrounding the entry of law enforcement officers into defendants motel room. At the time of the search, defendant was on parole and subject to a search clause but no search or arrest warrant had issued. Evidence showed defendant was required to register as a sex offender under section 290 and was required to notify parole before any change of address. The court was provided the receipt of defendants registration for his motel room.
At the hearing on the motion, Agent Roberson, defendants parole officer, testified that defendant was subject to search and seizure of his person and residence. While conducting an independent investigation on May 13, Roberson saw defendants Cadillac in the San Jose Inn lot and then learned defendant had registered in room 218 on May 8. Defendant had told Roberson he was moving to a specific apartment in Mountain View but had not said he would be staying at a motel. Roberson obtained the passkey to room 218 to investigate whether defendant was in violation of parole.
Roberson testified that, when he and other agents went to room 218, Agent Garcia knocked on its door and shouted the word "parole." The agents knocked a second time and again shouted the word "parole" in a "very loud" voice. Failing to receive a response, the agents used the passkey to enter the room.
On cross-examination, defense counsel asked whether Robersons written report regarding the motel room entry mentioned knocking and announcing. Once Roberson acknowledged it had not, counsel left the subject. Counsel did not ask how much time the agents had waited after knocking before entering the room. During redirect examination, Roberson reiterated that "knock notice was given." When defense counsel said he had "no further questions of this witness," defendant said "wait" four times, asked the court if he could say something, and, when told to speak to his counsel, said, "What are you doing, man?" After a recess during which the defendant was allowed to talk with his attorney "privately," counsel again said he had no further questions for Roberson and then called Officer Middlekauf to the witness stand.
At the suppression hearing, defendant testified he never heard the agents knock or announce their presence, that he just heard a lot of noise as the door burst open and the officers entered the room. He said Christopher had left three to five seconds before "all the sudden the door just bust open, `Freeze, Mr. Pugh, freeze." He added that, "if it was a knock during the time the door was bursting open, all the noise that was making, I mean, where I was sitting at the part of the motel I was at, I didnt hear nothing."
In denying the motion to suppress, the trial court found "there was substantial compliance with the knock-notice requirement" because "the testimony of Agent Roberson does indicate that there was a specific compliance with it, knocking twice, announcing parole twice. The defendants testimony indicates that he did not hear that, but that doesnt necessarily mean that it did not occur." (Italics added.)
The trial judge was the same judge who had presided over the suppression hearing.
At trial, Roberson testified the agents knocked on defendants motel room door, announced their presence, and waited "approximately three to five seconds" for someone to answer the door. When "nobody responded," the agents used the passkey to enter. During cross-examination, defense counsel asked, "The time period after the knock you testified was three to five seconds, isnt that correct?" (Italics added.) Roberson responded in the affirmative. On cross-examination, Roberson conceded it "might have taken" a person in the rear bedroom "from five to 12 seconds to respond." At no point during or after Robersons testimony did defense counsel ask to renew his knock-notice motion.
Defendant cannot sustain his burden of showing that he was prejudiced by the claimed omissions since the evidence at both the suppression hearing and the trial reveals that the agents substantially complied with the knock-notice statutes, and there is no evidence in the record regarding how much time elapsed between the first knock and the first announcement or between the first announcement and the second knock-notice.
Section 844 provides that "in all cases a peace officer, may break open the door or window of the house in which the person to be arrested is, or in which they have reasonable grounds for believing the person to be, after having demanded admittance and explained the purpose for which admittance is desired." Likewise, section 1531 provides that an officer may enter "if, after notice of his authority and purpose, he is refused admittance."
The evidence revealed that the agents twice knocked and announced their presence and then waited for an additional three to five seconds for someone to open the door before entering the motel room, and defendants testimony at the suppression hearing did not establish otherwise. Given there are no hard and fast rules as to time limits officers must wait before entering (People v. Elder (1976) 63 Cal. App. 3d 731, 739, 134 Cal. Rptr. 212, disapproved on other grounds in People v. Chapman (1984) 36 Cal.3d 98, 109-110, 201 Cal. Rptr. 628, 679 P.2d 62), we conclude evidence strongly suggests that the statutory knock-notice requirement was strictly complied with in this case.
However, in any event, "substantial compliance [with the knock-notice statutes] will excuse strict literal compliance, as long as ` the policies and purposes of the requirements have been satisfied." (People v. Montenegro (1985) 173 Cal. App. 3d 983, 989, 219 Cal. Rptr. 331 [parole officers substantially complied though they opened screen to defendants home before knock-notice given and then waited only seconds before forcibly entering].) Even when police procedures have failed to "conform to the precise demands of the statute," substantial compliance has been found such that "technical and, in the particular circumstances, insignificant defaults may be ignored." (People v. Peterson (1973) 9 Cal.3d 717, 723, 108 Cal. Rptr. 835, 511 P.2d 1187.) Assuming arguendo there was no literal compliance with the knock-notice statutes, we are convinced the evidence established that the agents substantially complied with the requirement.
We note that Robersons trial testimony was not inconsistent with his prior testimony. At the suppression hearing, Roberson testified he knocked and announced twice and then used the key to open the door. At trial, he testified to the same sequence of knocking and announcing twice but added that the agents then waited an additional three to five seconds for someone to respond before entering. Taken as a whole, that evidence established substantial compliance with the knock-notice requirement and the Fourth Amendment, and defendant has failed to establish that it is reasonably probable he would have obtained a more favorable ruling on his motion to suppress had his counsel renewed the motion in the trial court. Accordingly, defendants ineffective assistance claim based upon his counsels failure to elicit evidence as to the total time the officers waited before entering at the initial suppression hearing is without merit. (People v. Price, supra, 1 Cal.4th at p. 440.)
With respect to defendants claim that his counsel should have renewed the motion to suppress during trial, we are convinced it is not probable the trial court would have exercised its discretion to grant such a motion on the previously litigated knock-notice issue. "Under section 1538.5, subdivision (i), a suppression motion in superior court does not result in a de novo hearing where, as here, an unsuccessful motion to suppress was earlier made at the preliminary hearing. Rather, the superior court hearing on the suppression motion is limited to consideration of the evidence presented at the preliminary hearing, with the superior court assuming the role of a reviewing court. In that role, the superior court is required to draw all inferences in favor of the magistrates findings where such findings are supported by substantial evidence." (People v. Galindo (1991) 229 Cal. App. 3d 1529, 1533-1534, 281 Cal. Rptr. 155.) The 1986 amendment to section 1538, subdivision (i) was intended to limit relitigation to new evidence that was unavailable to the defendant at the time of the first hearing and that would affect the prior finding. (People v. Bishop (1993) 14 Cal.App.4th 203, 210; see also People v. Hansel (1992) 1 Cal.4th 1211, 1218, 824 P.2d 694 [goal of 1986 amendment to section 1538.5, subd. (i) was to limit a motion to suppress to one hearing].) It is not reasonably probable the trial court would have granted a renewed motion here, where Roberson testified at the suppression hearing regarding the knock-notice claim, his trial testimony was not inconsistent with his prior testimony, and defendant would not have been able to show that, at the first hearing, he could not have asked Roberson about the length of time after the final knock-notice before the agents opened the door. Moreover, here, where the trial court was the same court that had rejected the knock-notice claim at the suppression hearing, there is no reasonable probability it would have found that Robersons trial testimony affected its earlier credibility finding regarding the prior testimony on the same issue. (See People v. Mattson, supra, 50 Cal.3d at p. 876.)
In any event, as noted above, defendant has not established prejudice from this purported omission since he cannot show that the total time from the start of the initial knock-notice until the completion of the second knock-notice plus the additional three to five second wait after the second knock-notice was so minimal that there is a reasonable probability the evidence would have been suppressed after a renewed motion to suppress.
We conclude defendants ineffective assistance claims regarding the motion to suppress evidence are not well taken. (People v. Price, supra, 1 Cal.4th at p. 440.)
B. Admissibility of Portions of Christophers Letters and Relevant Instructions
Defendant contends the trial court erred by permitting the prosecutor to refer to some of Christophers handwritten letters during argument and that there was insufficient evidence that Christopher had written the letters in furtherance of a conspiracy to sell or deliver a controlled substance. He claims that, if his trial counsel failed to preserve the hearsay claim, the omission constituted ineffective assistance. He also contends the trial court erred by failing to instruct the jury sua sponte pursuant to CALJIC No. 3.11 that "you cannot find a defendant guilty based upon the testimony of an accomplice unless that testimony is corroborated by other evidence which tends to connect the defendant with the commission of the offense."
Prior to trial, defense counsel objected to admission of information about Christopher because she was unavailable to testify and there was no foundation to support an inference that she had written the seized letters. Counsel claimed the letters were inadmissible because there was no showing defendant knew they existed; he also argued the letters contained prejudicial and irrelevant information about defendants pimping Christopher to pay for drugs. He never mentioned CALJIC No. 3.11, the accomplice cautionary instruction set forth above.
After indicating Christopher was unavailable to testify, the prosecutor claimed her relationship with defendant would establish the admissibility of the writings, which he was presenting as statements of an uncharged coconspirator. He argued the evidence showed Christopher was with defendant at the time of his arrest and the letters were found at locations shared by them, the letters were "self-executing" because Christopher had signed one and many were addressed to defendant by name, and that, since many of the letters were in defendants possession when arrested, they were admissible as adoptive admissions. He added that Christopher had identified herself as the author of the letters during a police interview.
The court excluded portions of the letters that discussed "defendants running" of Christopher as a prostitute and "her status as prostitute" but ruled that, otherwise, the prosecutor could introduce the letters "to indicate [she was] a co-conspirator and also possibly as adopted admission statements made by [her]." The court mentioned that evidence of the letters would be "subject to the instruction on an uncharged conspiracy."
At trial, agents testified that they seized from defendants Mountain View apartment handwritten documents and a notebook with Christophers name on it that contained a "pay/owe" ledger recording defendants drug sales. At the end of his case-in-chief, the prosecutor moved to admit into evidence the edited versions of Christophers letters seized from the motel room and from defendants recently rented apartment.
At that point, defense counsel renewed his objection that the evidence lacked foundation and additionally objected that it was hearsay. After discussing the factors under the hearsay exception set forth in Evidence Code section 1223 [Admission of co-conspirator], counsel argued admission of the evidence would violate his right to confrontation and a fair trial under the Fifth and Sixth Amendments.
We address this evidentiary contention on its merits. Defendant has raised a concomitant claim that his trial counsel provided ineffective assistance if he failed to object at that time of the in limine motion by using the precise wording he has used on appeal. Although trial counsel did not specifically articulate an objection that Christophers letters were inadmissible because there was no evidence to show Christopher wrote them in furtherance of the conspiracy to sell or deliver cocaine, we are convinced that counsel effectively made that argument in the trial court. There, defense counsel objected to admission of the evidence of Christophers letters, arguing that they contained hearsay and that the evidence was inadmissible under Evidence Code section 1223. After discussing each of the foundational requirements of the admissions of a co-conspirator hearsay exception set forth in that section of the Evidence Code, counsel argued that "there has not been prima facie evidence offered in this hearing that a conspiracy existed, to wit: a conspiracy for sale of drugs." We agree with both parties in the instant appeal that his objection encompassed an objection that it had not been established that Christopher had written the letters "in furtherance of" a conspiracy to sell drugs. (Evid. Code, § 1223, subd. (a).) Since defense counsel objected with sufficient precision to alert the court as to the basis for his objection, the issue raised on appeal has not been waived. Accordingly, we find no need to address the admissibility of the edited portions of Christophers letter under the rubric of an ineffective assistance claim.
The court admitted edited versions of several of Christophers letters to defendant but none of the letters found in the "pay/owe" notebook. One of the letters that was admitted stated, "Darryl, I make deliveries for you"; another said "the way that you sometimes hold dope over my head is bullshit and its cruel. I think you know it too." Two of the letters were addressed to "Darryl" and signed "Sarah." They all were in the same handwriting. One letter addressed to Darryl mentions that, "not only does one need to listen, he also needs to put out signals which let his partner know that hes listening . . . ."
The prosecutor argued to the jury that the letters show that Christopher was "making deliveries for sale of controlled substances," that she and defendant are "partners," that there is an "ongoing relationship" between them, that "shes working with him in the sale of narcotics," that defendant is "giving her drugs, holding drugs over her head on occasion, and shes upset about it." He argued that, in addition, the fact the "pay/owe" ledger came from the notebook used for communications between Christopher and defendant makes it "pretty clear that they are selling drugs together. " After the instructions were read to the jury, defense counsel objected that the trial court had read instructions on uncharged conspiracy, namely, CALJIC Nos. 16.10, et seq.
We conclude the trial court properly admitted portions of Christophers handwritten letters. The court had broad discretion whether to admit or reject evidence, and its exercise of that discretion will not be disturbed on appeal absent a clear abuse. (Evid. Code, § 352; People v. Karis (1988) 46 Cal.3d 612, 637, 250 Cal. Rptr. 659, 758 P.2d 1189 [prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is not prejudice to a defense that naturally flows from relevant, highly probative evidence].) Since criminal defendants are not entitled to deference in the application of the established rules of evidence and procedure (People v. Hawthorne (1992) 4 Cal.4th 43, 57, 841 P.2d 118), "as a general matter, the ordinary rules of evidence do not impermissibly infringe on the accuseds right to present a defense." (People v. Hall (1986) 41 Cal.3d 826, 834, 226 Cal. Rptr. 112, 718 P.2d 99.)
In this case, the trial court exercised its discretion to admit only the relevant parts of some of Christophers letters. In light of the trial courts careful consideration of the potential prejudicial impact of the references to "pimping" and prostitution, followed by its orders to delete all such references, defendant cannot show that the court acted in an arbitrary or capricious manner with respect to the edited letters it admitted. The evidence was relevant to support the prosecutions theory that defendant had recruited Christopher to engage in a uncharged conspiracy to package, sell, and deliver cocaine from the motel room they shared. There was sufficient foundation to show Christopher had written the letters since she signed many of them, addressed several to defendant by name, and had claimed them as hers during a police interview. Defendant provided no evidence to the contrary. We conclude there was an adequate foundation that Christopher wrote the edited portions of her letters in furtherance of the objectives of the conspiracy to sell and deliver illegal drugs.
In any event, assuming arguendo the trial court erred by admitting the edited letters, any error was harmless. (People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.) Apart from the letters, there was overwhelming evidence of defendants guilt, including the "pay/owe" sheets, the packing materials found near him on his motel bed, the cocaine residue discovered on those packing materials, and the large rock of cocaine found in his cast. Defendant cannot show constitutional error from the admission of this evidence. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1119-1120, 885 P.2d 1.)
Since we have addressed the merits of defendants claim regarding the admissibility of Christophers letters, we need not discuss his concomitant argument based upon his trial counsels failure to preserve the issue for review.
Defendant next contends the trial court erred by failing to read CALJIC No. 3.11 regarding the evidence of Christophers letters to defendant.
CALJIC No. 3.11, the cautionary instruction regarding corroboration required for accomplice testimony is set forth above. Section 1111 provides that "an accomplice is hereby defined as one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given."
"In a criminal case, a trial court has a duty to instruct the jury on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles connected with the evidence and which are necessary for the jurys understanding of the case." (People v. Estrada (1995) 11 Cal.4th 568, 574, 904 P.2d 1197.)
"Whenever an accomplice, or a witness who might be determined by the jury to be an accomplice, testifies, the court should sua sponte instruct the jury [with CALJIC No. 3.11]." (People v. Box (2000) 23 Cal.4th 1153, 1208, internal quotations omitted, italics added.) Christopher did not testify. Since neither the prosecution nor defendant called her as a witness, the trial court was under no sua sponte duty to instruct the jury pursuant to CALJIC No. 3.11. (Contrast People v. Guiuan (1998) 18 Cal.4th 558, 569, 957 P.2d 928 [accomplice testified at defendants trial]; Cool v. United States (1972) 409 U.S. 100, 104, 34 L. Ed. 2d 335, 93 S. Ct. 354 [same]; see also People v. Box, supra, 23 Cal.4th at p. 1209; People v. Dennis, supra, 17 Cal.4th 468, 541.)
In any event, assuming arguendo the trial court erred by failing to instruct pursuant to CALJIC No. 3.11, the error was harmless. The prosecutions theory was that defendant and Christopher were engaged in an uncharged conspiracy to sell and distribute cocaine. With respect to that theory, the jury was read several instructions on uncharged co-conspirators, including CALJIC No. 6.10.5 [Conspiracy & overt act—defined—not pleaded as a crime charged]; No. 6.18 [Commission of act in furtherance of a conspiracy does not itself prove membership in conspiracy]; No. 6.24 [Determination of admissibility of co-conspirators statements]; No. 6.17 [Conspirator not bound by act or declaration of non-conspirator]; No. 6.21 [Liability for acts committed after termination of conspiracy]; No. 6.19 [ Joining conspiracy after its formation]; No. 6.16 [When conspirators not liable for act or declaration of co-conspirator]. Some of these instructions provided the substance of the cautionary admonition that defendant claims should have been given at trial. Significantly, CALJIC No. 6.24 provided, in relevant part, that "evidence of a statement made by one alleged conspirator other than at this trial shall not be considered by you as against another alleged conspirator unless you determine: [P] One. That from other independent evidence that at the time the statement was made a conspiracy to commit a crime existed. [P] Two. That the statement was made while the person making the statement was participating in the commission and that the person against whom it was offered was participating in the conspiracy before and during that time; and [P] Three. That such statement was made in furtherance of the objective of the conspiracy. [P] The word `statement as used in this instruction means any oral or written verbal expression or the nonverbal conduct of a person intended by that person as a substitute for oral or written verbal expression." (Italics added.)
Accordingly, assuming the trial court erred by failing to instruct, pursuant to CALJIC No. 3.11, on accomplice testimony, the error was harmless. (See, e.g., People v. Macias (1997) 16 Cal.4th 739, 746, fn. 3, 941 P.2d 838 [error from omitted instruction harmless in light of strong incriminating evidence].) Here, as noted above, there was strong incriminating evidence against defendant independent of Christophers letters, including the drug packaging paraphernalia with cocaine residue on it that was found around defendant on the bed at the time of his arrest, the large rock he had hidden in his cast, and the "pay/owe" ledger. The jurors were aware that Christopher was arrested at the scene along with defendant, that she therefore may have had a personal motivation to blame defendant for her conduct, and that they could "not" consider her letters unless it found certain preconditions were met. We conclude any failure to read CALJIC No. 3.11 was harmless. (People v. Zapien (1993) 4 Cal.4th 929, 981, 846 P.2d 704; People v. Box, supra, 23 Cal.4th at p. 1209.)
We do not address defendants reversible per se argument since he has acknowledged that our state Supreme Court has held that failure to give accomplice instructions is reviewable under the harmless analysis set forth in People v. Watson, supra, 46 Cal.2d 818 (People v. Gordon (1973) 10 Cal. 3d 460, 479, 110 Cal. Rptr. 906, 516 P.2d 298), that we are bound by that authority (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal. Rptr. 321, 369 P.2d 937), and that he is merely preserving this standard of review issue for subsequent reconsideration by the California Supreme Court or for federal review.
C. Parole Agents Improper Mention of Word "Parole" During Cross-Examination
Defendant contends Agent Robersons mention of the word "parole" during cross-examination mandates reversal of his convictions.
When defendant moved to exclude reference to parole officers as such and suggested they be referred to as police officers or enforcement officers, the trial court ruled the parole officers should "be identified as agents or even state agents without reference to the parole status of the agent." It also granted a defense request to preclude any mention of defendants parole status apart from impeachment with his prior felony conviction should he testify.
During cross-examination, defense counsel asked Agent Roberson whether he had "indicated that as of now youve been employed in your present capacity with the State of California for approximately 13 years?" After Roberson answered in the affirmative, counsel asked, "Is that all in the San Jose office or have you had other field locations?" Roberson responded, "13 years in the San Jose office, and I was a peace officer in the Youth Authority." When counsel began to ask, "Prior to - -," Roberson interrupted and testified, "Prior to coming to parole." In response, defense counsel asked if both counsel could "approach the bench" while the prosecutor asked, "May that last answer be stricken, please?"
Outside the presence of the jury, defense counsel moved for a mistrial because "Roberson testified hes a parole agent" in violation of the courts rulings, arguing that defendant could not receive a fair trial in light of this "slip of the tongue." Acknowledging there was no bad faith because the prosecutor had reminded Roberson not to refer to his parole status just before he testified, counsel argued that the prejudice could not be cured by merely striking the answer and that the trial, which had just started, could be started again. In response, the prosecutor argued the inadvertent error was invited by counsels irrelevant questions about Robersons prior work history and that an admonishment to the jury to disregard the question would cure any conceivable harm.
The court ruled as follows: "The answer that offended the precautions that were taken . . . was `before coming to parole. Now that does not necessarily mean that your client was on parole. [P] Also, if I were to admonish the jury to strike that phrase, it would only indicate to them more strongly that there is a question of parole in this case. So I refuse to admonish the jury, I refuse to strike the answer, and I also refuse to admonish the jury for that very reason. [P] And since the context of the answer that we have been discussing here does not directly involve the defendant, I deny the motion for a mistrial."
We agree with the trial court that Roberson did not technically violate the trial courts order because he neither referred to himself as defendants parole officer nor to the fact that defendant was on parole at the time of the instant offense. Given the context in which parole was mentioned, the trial court did not abuse its discretion by deciding to avoid further emphasis of the word "parole" by advising the jury to disregard that word.
However, assuming the agents testimony that he had "come to parole" after having worked as a peace officer at the Youth Authority constituted error, the error was harmless. The plethora of admissible evidence of defendants guilt has been discussed throughout this opinion. In light of that evidence, it is not reasonably probable the outcome of the trial would have been more favorable to defendant had the word "parole" not been mentioned or had the trial court admonished the jury to ignore that word. (People v. Watson, supra, 46 Cal.2d at p. 836.)
The Peoples argument that any error was "invited" because "the response was required by [defendants] cross-examination regarding the agents prior work history" is not persuasive, here, where defense counsel never finished the question that resulted in the agents response.
D. Sufficiency of the Evidence as to Count 5
Health and Safety Code section 11366 (hereinafter "section 11366") provides that "every person who opens or maintains any place for the purpose of unlawfully selling, giving away, or using any controlled substance [such as cocaine base] . . . shall be punished by imprisonment in . . . the state prison." Defendant contends his conviction for Count 5 must be reversed because there is insufficient evidence in the record that he opened or maintained the motel room for selling, using, or giving away cocaine.
We uphold a conviction against a substantial evidence attack if a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. In making this determination, we view the evidence in the light most favorable to the People and presume in support of the judgment every fact the trier of fact could reasonably deduce from the evidence. (People v. Johnson (1980) 26 Cal.3d 557, 576, 162 Cal. Rptr. 431, 606 P.2d 738.)
With respect to Count 5, the evidence showed that defendant had been renting the motel room for nearly a week at the time of his arrest, he had pay/owe sheets indicating drug sales for the past month, there were over 70 baggies in the motel room, many of those baggies had corners cut off to use as bindles for packaging small amounts of cocaine, some of the baggies contained traces of cocaine residue, there was cocaine residue in a dixie cup, a razor was near the baggies, a pager and cell phone were found, Christopher, an admitted drug addict, was living with defendant, Christopher wrote a letter in which she mentioned that she was defendants "delivery girl," defendant, who did not use cocaine, had a large rock hidden in his cast, and cocaine and a drug kit were found in a case near defendant at the time of his arrest.
The jury was instructed regarding the elements of section 11366 and was advised that it must decide whether use or sales was established. The jury was instructed that "the word `maintaining means conducting an ongoing activity as opposed to a single instance." The jury also was informed that, for Count 5, there must exist a union or joint operation of act or conduct and a certain specific intent in the mind of the perpetrator and that, unless this specific intent exists, the crime to which it relates is not committed.
Section 11366 "is aimed at places intended to be utilized for a continuing prohibited purpose, and a single or isolated instance of misconduct does not suffice to establish a violation." (People v. Vera (1999) 69 Cal.App.4th 1100, 1102.)
Here, the trial court defined the relevant term at issue under the facts here, i.e., "maintaining" a place for the purpose of unlawful drug sales, and the evidence of the extensive drug paraphernalia found around defendant on the motel bed, the "pay/owe" ledger documenting recent drug sales, the large cocaine rock hidden in defendants cast, and Christophers letters documenting their sales activities constitutes substantial evidence that defendant had (1) opened or maintained a place; and (2) the opening or maintaining was for the purpose of unlawfully selling, giving away, or using cocaine base. Accordingly, defendants insufficiency of the evidence claim is not well taken.
E. Trial Counsels Ineffective Assistance Regarding Count 5
Defendant next contends that, if substantial evidence existed to support his conviction for Count 5, his trial counsel provided ineffective assistance by permitting the prosecutor to argue that the jury could convict defendant based upon a "use" theory.
The prosecutor initially argued to the jury that the evidence reasonably indicated that defendant had rented the Mountain View apartment to use as his home and had rented the motel room to use "for dope dealing." He argued that, because defendant was wearing a cast, he needed Christopher to make drug deliveries for him. That theory was supported by one of Christophers letters, which stated, "Darryl, I make deliveries for you." The evidence of the extensive drug paraphernalia in the motel room indicated that drug sales were being made from that room. The prosecutor also argued, "Obviously [the motel room] was for the use and sale of drugs," and, although both were established, the jury must decide on one of those elements, i.e., either use or sale.
Defense counsel did not object to that argument but, instead, argued that count 5 concerned "maintaining a place for the possession, sale or use of illegal drugs" by renting the motel room "with the purpose of unlawfully selling or giving away or using a controlled substance." Defense counsel then argued that the only user was Christopher.
In his closing rebuttal argument, the prosecutor argued that, while the officers had found "all this indicia of sales in the motel room," they found no "dope" because it was hidden in defendants cast. He argued that, because there was no evidence that defendant was a "user," why would he carry all that cocaine unless "hes a dealer and hes holding it to be used." The prosecutor noted defendants expenses, including rent for his apartment and his expenses for the motel room, despite defendant having no work history or other legal source of that cash. He argued, "There was a lot of packaging because he [defendant] had cut off the edges of the baggies and there were other smaller baggies. So there is no doubt whatsoever that the place was being used for narcotics use and sales."
The Peoples argument was an appropriate theory in light of evidence that defendant maintained the motel room and possessed the drug paraphernalia and the large rock found in his cast in order to engage in a criminal enterprise of selling drugs. (People v. Dennis , supra, 17 Cal.4th at p. 544.) Since the argument did not constitute misconduct prejudicial to defendant, his claim of ineffective assistance for any failure to object to that argument is without merit. (People v. Price, supra, 1 Cal.4th at p. 440.)
F. Propriety of Instruction on "Use" Theory as to Count 5
Defendant contends that, if substantial evidence exists for a conviction on Count 5, the trial court erred by instructing the jury that it could convict defendant based upon a "use" theory, by failing to define sua sponte the terms "maintaining" and "opening" as used in section 11366, by failing to omit sua sponte the words "giving away or using," and by failing to instruct that the continuity requirement applies to both maintaining and opening.
The trial court must ensure that "jurors are adequately informed on the law governing all elements of the case to the extent necessary to enable them to perform their function. This duty is not always satisfied by a mere reading of wholly correct, requested instructions. . . . A trial court has a sua sponte duty (1) to instruct on general principles of law relevant to issues raised by the evidence [citation]; and (2) to give explanatory instructions when terms used in an instruction have a technical meaning peculiar to the law. . . . [Citation.]" (People v. Ryan (1999) 76 Cal.App.4th 1304, 1318.) The court is required to instruct on a theory of the case only if it is supported by substantial evidence. (People v. Beardslee (1991) 53 Cal.3d 68, 97, 279 Cal. Rptr. 276, 806 P.2d 1311; People v. Kaurish (1990) 52 Cal.3d 648, 696, 276 Cal. Rptr. 788, 802 P.2d 278.) In the context of the facts presented inPeople v. Shoals (1992) 8 Cal.App.4th 475, 491 ("Shoals"), we held that "defining `maintaining and `opening [was] necessary because the statute employs a technical, legal meaning of these terms which is not likely to be commonly understood. [Citation.]." (Id. at p. 490.)
Here, the trial court did not delete the words "giving away or using" from the instruction on section 11366 on its own motion because there was some evidence supporting a finding on those terms. The prosecutor argued that, while both elements were established, the jury must decide on one, i.e., either use or sale, and defense counsel argued the evidence only established that defendant was giving the drugs to Christopher for her personal use. Under these circumstances, the trial court properly included the words "giving away or using" in its instruction on section 11366.
We next conclude that, while the trial courts instruction on section 11366 included a definition of "maintaining" but did not include a definition of "open," the omission does not require reversal in this case. The parties disputed whether the motel room was being maintained for purposes of the unlawful selling of a controlled substance; see People v. Vera, supra, at p. 1103 [to "maintain" means "to continue or persevere in"]), but there was no issue regarding the meaning of the word "open." Furthermore, there are substantial differences in the evidence and issues between this case and those in Shoals. For example, in Shoals, there was evidence of only a single occasion on which contraband was possessed in the room (Shoals, supra, at p. 491), while, here, the ledger sheets showed a month of continuous sales and Christophers letters suggested an on-going criminal drug enterprise being run from the motel. While there was no evidence of drugs at the motel in Shoals, here there was extensive drug paraphernalia containing drug residue, as well as the large rock of cocaine hidden in defendants cast. In Shoals, although the jury expressed an inability to discern the meaning of "open" and "maintaining," the court refused to define those terms or supply a copy of the instructions (id . at p. 490), while, here, the jury was given the written instructions, including the instruction for section 11366, and it never expressed difficulty with the wording of that charge. In light of the above, we are convinced that any error in failing to define "open" in this case was harmless because it is not reasonably probable that, in the absence of the error, defendant would have received a more favorable result regarding Count 5. (People v. Breverman (1998) 19 Cal.4th 142, 178, 960 P.2d 1094.)
G. Propriety of Response to Jury Inquiry Regarding Meaning of "Control"
Defendant contends the trial court erred by responding to the jurys inquiry regarding the meaning of the phrase "exercised control or the right to control a certain controlled substance" with an improper definition of the word "control."
The trial court has the authority to provide clarifying instructions if appropriate in response to questions from the jury during deliberations ( § 1138; People v. Guilmette (1991) 1 Cal.App.4th 1534, 1542), but the court need not always elaborate on the standard instructions. Although a trial court has discretion to determine whether additional instructions are necessary or desirable to satisfy a jurys questions, instructional comments diverging from the standard can be risky. (People v. Beardslee, supra, 53 Cal.3d at p. 97.)
In this case, during deliberations, the jury sent a note asking, in pertinent part, that "considering Count 2 [straight possession], we would like clarification of Element No. 1. [P] A person exercised control or the right to control a certain controlled substance."
After consultation with the parties, the trial court responded, "If you look at the instruction on that particular count, the word `control, of course, is a simple English word and should be apparent to you. [P] In order to prove the crime charged in Count 2, each of the following elements must be proved: [P] One. A person exercised control or the right to control a certain controlled substance; [P] Such person had knowledge of its presence; [P] Such person had knowledge of its nature as a controlled substance; and [P] The substance was in an amount sufficient to be used as a controlled substance. [P] And there are two kinds of possession, actual possession and constructive possession. Actual possession requires that a person knowingly exercise direct physical control over a thing; in other words, can hold onto it. [P] Constructive possession is not required. Actual possession does require that a person knowingly exercise control or the right to control a thing either directly or through another person or persons. [P] One person may have possession alone or two or more persons together may share actual or constructive possession."
The court then asked the foreperson if the jury was having "a problem with the word `control." When the foreperson replied, "We are having difficulty with that word. Exactly where were having trouble with is who the bag belongs to," the court explained that "if the person were able to take it into his possession, then he would be in control of it." When it was clarified that "this is a question of possession of a controlled substance," the foreperson told the court that "we know that the defendant acquired the room and it was for both People [ sic]. That was stipulated." The following dialogue then ensued: "THE COURT: These are matters of fact for [you] to decide. [P] FOREPERSON: Okay. [P] THE COURT: Did he have the ability to move around in the room and take over the substance? [P] FOREPERSON: Okay. [P] THE COURT: Does that sufficiently enlighten you on that? [P] FOREPERSON: I think so. [P] THE COURT: This is something you have to work out for yourselves as triers of fact. [P] FOREPERSON: Right."
The court responded to the jurys inquiry by rereading the proper CALJIC instruction on the charge and then clarifying the term "control" by asking a series of questions to guide the jurors to the meaning of that term. Defendant did not object to either the instruction or the follow-up explanation, and the jurors appeared satisfied with the courts response. We find no error in the response given by the trial court. However, assuming arguendo the response was erroneous, any error was harmless because the standard instruction that was reread in response to the inquiry was correct and because there was overwhelming evidence that defendant, at a minimum, shared actual or constructive possession of everything in the motel room connected with drugs.
H. Possession Necessarily Encompassed in Possession for Sale
The jury was given and returned separate verdicts on counts 1 and 2. Defendant contends his conviction for possession of cocaine base (count 2) must be reversed because it was necessarily encompassed in the possession for sale charge (count 1). This contention has merit.
Prior to trial, defense counsel asked the prosecutor to clarify what evidence was being introduced to support counts 1 and 2. In response, the prosecutor said his theory of the case was that, with respect to count 1, the 3.88 grams of cocaine found at the jail in defendants cast supported the charge of possession for sale of cocaine base, whereas, with respect to count 2, the small amount of cocaine base found in the cosmetic bag in the motel room supported the charge of possession of cocaine base. Defense counsel expressed satisfaction with the prosecutors explanation, and the trial court found that "counts 1 and 2 are separate possession." The prosecutor repeated his theory to the jury during argument.
On appeal, the People contend the two convictions are proper because "the charges were based on entirely different evidence found at different locations at different times." (Italics added.) In his reply brief, defendant contends "the two quantities of cocaine (one in the motel room, the other in the cast) were not divisible units, but were part of a single act of possession."
The defendants position is more persuasive. When he was arrested, defendant was in actual or constructive possession of the cocaine in the hotel room, including the rock of cocaine later found hidden in his cast. "At any given point of time a person is either guilty of the crime of possessing [cocaine] or he is not." (People v. Theobald (1964) 231 Cal. App. 2d 351, 353, 41 Cal. Rptr. 758. Here, as in People v. Clay (1969) 273 Cal. App. 2d 279, 285, 78 Cal. Rptr. 56, "this is not a case involving multiple acts of possession separated by time or space." Accordingly, we shall reverse defendants conviction as to count 2.
I. Section 654
Section 654 provides that, when a single action is punishable under two or more different statutes, the defendant should be punished under the provision which provides for the longest potential sentence, but that, in no case "shall the act or omission be punished under more than one provision." Defendant contends his sentence on count 5 [maintaining a place for narcotics activity] must be stayed pursuant to section 654 because the same act "may have" formed the basis for counts 5 and 1 [possession of cocaine base for sale]. He also contends sentence for one misdemeanor count should be stayed for the same reason.
Section 654 does not apply to multiple acts; it only applies to the same act punished in multiple ways. (People v. Harrison (1989) 48 Cal.3d 321, 339, 256 Cal. Rptr. 401, 768 P.2d 1078.) Even where a defendant entertains a single principal objective during an indivisible course of conduct, he may be convicted and punished for each crime of violence committed against a different victim. (People v. Anderson (1990) 221 Cal. App. 3d 331, 338, 270 Cal. Rptr. 516.) Section 654 does not apply where separate criminal intents and objectives are established. (People v. Coleman (1989) 48 Cal.3d 112, 162, 255 Cal. Rptr. 813, 768 P.2d 32; People v. Harrison, supra, 48 Cal.3d at p. 339.)
Here, defendant was convicted of possession of cocaine base for sale (count 1). Defendant also was convicted of maintaining the motel room for illegal narcotics activities (count 5), obstructing a peace officer in the discharge of his duties for wrestling officers to the floor at the jail (count 3), and attempting to destroy evidence for putting the baggie in his mouth to prevent the officers from seizing it (count 4).
In the previous section of this opinion, we determined that the drugs found in the motel and the rock of cocaine hidden in defendants cast and found at the jail were part of a single possession, although the prosecutor argued the intent to sell element of count one based solely upon the size of the rock found in the cast. On the other hand, we are convinced that defendants single possession of cocaine base at the time of his arrest involves a different intent and objective than his larger objective to rent the motel room in order to secretly engage in a continuous, large scale, drug-packaging and sales operation.
Counts 3 and 4 similarly arose from criminal acts separate from the possession for sale charged in count 1, and those counts arose from criminal acts separate from each other. The act underlying Count 3 was defendants wrestling of the officers to the ground. It had separate victims from count 1(see People v. Miller, supra, 18 Cal.3d at p. 885), and it had a separate intent, namely, the concealment of the drugs on defendants person. The act underlying count 4 was defendants attempt to swallow the evidence. It had a separate criminal intent, namely, the destruction of the potentially incriminating evidence. (See People v. Porter (1987) 194 Cal. App. 3d 34, 239 Cal. Rptr. 269.)
In light of above, we are convinced that section 654 does not bar the sentences imposed for counts, 3, 4, and 5.
J. Cruel and/or Unusual Punishment
Defendant contends his sentence of 31 years to life constitutes cruel and/or unusual punishment under the state and federal constitutions (Cal.Const., art. I, § 17; U.S. Const. 8th Amend.)
At the sentencing hearing, defense counsel asked the court to strike four of the five strike prior convictions because they were "old", to stay sentence one of the two Health and Safety Code section 11370.28 enhancing priors, and to stay sentence on the first sale of cocaine. Noting that striking the older prior would halve defendants term and release him from having to serve 80 percent of his sentence, counsel argued the court should impose the 22-year term proposed in a pretrial plea offer.
The prosecutor responded that there was no good cause for striking the strike sentence and that defendant was a classic career criminal for whom the three strikes law was created. He noted that defendants criminal convictions began while he was a juvenile, that his life of crime continued unabated for 20 years, and that, during that time, defendant only was out of custody for a few months before reoffending. He added that defendant was on parole when he committed the instant crimes.
The court noted that defendants criminal history works against him as did the fact that defendant was on parole at the time of the crimes and the fact that he had served five prior prison terms for drug sales. The court then sentenced defendant to three concurrent terms of 25-years-to-life on the three felony counts, concurrent terms on the misdemeanor counts, and a consecutive six-year term on the two allegations of drug priors. The court ordered stricken the remaining allegations.
The Eighth Amendment of the federal constitution, applicable to the states through the Fourteenth Amendment, provides that "excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted." (U.S. Const., 8th Amend.) Article 1, section 17, of the California Constitution likewise declares that "cruel or unusual punishment may not be inflicted or excessive fines imposed." The state and federal prohibitions are not coextensive. (People v. Anderson (1972) 6 Cal.3d 628, 634, 100 Cal. Rptr. 152, 493 P.2d 880.)
Inasmuch as the California Constitutions ban against cruel and unusual punishment arguably affords defendant broader protection than the U.S. Constitutions, we analyze defendants claim only under the California standard. A punishment which satisfies this standard necessarily also satisfies the federal standard. (Cf. People v. Anderson, supra, 6 Cal.3d 628.)
In In re Lynch (1972) 8 Cal.3d 410, 105 Cal. Rptr. 217, 503 P.2d 921 (Lynch) above, the California Supreme Court devised three "techniques" for assessing whether punishment is cruel or unusual. In order to determine if a punishment "is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.[fn]" (Id. at p. 424.) Courts should (1) consider "the nature of the offense and/or the offender" (id . at p. 425), (2) compare the punishment to other punishments imposed by the same jurisdiction for more serious offenses (id. at p. 426) and (3) compare the punishment to other punishments imposed by other jurisdictions for the same offense. (Id. at p. 427.)
Before addressing the Lynch factors with regard to defendants punishment in this case, we summarily reject his broad argument that the Three Strikes Law as applied to non-violent recidivists is cruel and unusual punishment in light of the recent decisions by the United States Supreme Court in Lockyer v. Andrade (2003) 155 L. Ed. 2d 144, 538 U.S. ___ and Ewing v. California (2003) 155 L. Ed. 2d 108, ___ U.S. ___ . For example, in Ewing, the court upheld a three strikes sentence for a grand theft conviction of three golf clubs worth approximately $ 1,2000. (123 S. Ct. at pp. 1183-1185.) In conducting a proportionality analysis, the court weighed not only the gravity of the defendants current offense "but also his long history of felony recidivism." (Id . at pp. 1189-1190.) Based upon Ewings history, which included a robbery and three residential burglaries, the court concluded that his 25-years-to-life sentence was not grossly disproportionate and did not violate the Eighth Amendment. (Id. at p. 1190.)
Turning to the Lynch factors, we first consider the nature of the offense and the offender. Regarding the offense, we evaluate "the totality of the circumstances surrounding the commission of the offense in the case at bar, including such factors as its motive, the way it was committed, the extent of the defendants involvement, and the consequences of his acts." (People v. Dillon, supra, 34 Cal.3d at p. 479.) We also focus on the particular offenders "individual culpability as shown by such factors as his age, prior criminality, personal characteristics, and state of mind." (Ibid.)
With regard to this prong of the Lynch analysis, defendants argument is that his facts underlying his current offense "hardly paint[] the picture of a narcotics kingpin deserving of a 31-year-to-life sentence." While he admits that he has "suffered five prior strike convictions - three for robbery and two for forcible oral copulation," he argues that "these five charges arose out of just two separate
incidents, occurring 19 and 21 years ago," and that the charges in the current case "involved little, if any, evidence of violence." We conclude an examination of the offenses and offender in this case supports the conclusion that defendants sentence is not cruel or unusual.
Defendants current offenses involved the running of a significant drug operation that included pay-owe sheets and an unwilling accomplice. The probation report shows that defendant has an extensive criminal record, including five prior serious felony convictions spanning 20 years, including armed robbery and two forcible oral copulation convictions and several misdemeanor convictions. The report also reveals that defendant had served five prior prison terms and that he was on parole at the time he committed the instant offenses.
The trial court in this case carried out the intent of the Legislature, punishing defendant not merely for his present crime but also for his recidivism. While defendants current offense did not involve violence apart from his struggle with the officers at the jail, we are not persuaded by his unsupported claim that he is not a danger to society given that he has an extensive and lengthy
criminal record, he has engaged in an armed robbery and has committed forcible oral copulation, he has several drug-related convictions, and he continues to possess drugs for sale.
In People v. Martinez (1999) 71 Cal.App.4th 1502, 1510 (Martinez), the defendant was convicted of possession of a small quantity of methamphetamine, and we upheld the Three Strike sentence in Martinez. Here, as in Martinez, "the current crimes alone are not what has earned defendant a life sentence. He is a frequent repeat offender who seemingly has not learned from past incarceration." (Id. at pp. 1510-1511.) The Three Strikes sentencing scheme addresses the career criminal, like defendant. (People v. Stone, supra, 75 Cal.App.4th at p. 717.) "Both in this jurisdiction and in other jurisdictions, habitual offender statutes have long withstood the constitutional claim of cruel and/or unusual punishment." (People v. Ayon (1996) 46 Cal.App.4th 385, 397, disapproved of on other grounds in People v. DeLoza (1998) 18 Cal.4th 585, 600, fn. 10, 957 P.2d 945; accord People v. Cooper (1996) 43 Cal.App.4th 815, 823-824.) In Rummel v. Estelle (1980) 445 U.S. 263, 63 L. Ed. 2d 382, 100 S. Ct. 1133, the United States Supreme Court upheld a life sentence imposed on a defendant following his third theft-related felony conviction, although the total loss from his three crimes was less than $ 230. Concluding the sentence was not cruel and unusual, the court explained that "the purpose of a recidivist statute such as that involved here is not to simplify the task of prosecutors, judges, or juries. Its 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. This segregation and its duration are based not merely on that persons most recent offense but also on the propensities he has demonstrated over a period of time during which he has been convicted of and sentenced for other crimes. Like the line dividing felony theft from petty larceny, the point at which a recidivist will be deemed to have demonstrated the necessary propensities and the amount of time that the recidivist will be isolated from society are matters largely within the discretion of the punishing jurisdiction." (Id . at pp. 284-285.)
Defendants current crime is not determinative; his sentence must be considered in the context of his record, which spans several years and encompasses several violent felony convictions, including convictions for armed robbery and forcible oral copulation, as well as many misdemeanor convictions.
Our prior decision in Martinez is instructive. In that case, police stopped Martinez for driving while intoxicated. After Martinez refused to take a sobriety test, a search found methamphetamine on Martinezs person and a forced blood sample revealed that Martinez consumed phencyclidine. (71 Cal.App.4th at pp. 1507-1508.) Martinezs criminal history is similar to that of defendant. Prior to his current offense, Martinez suffered three serious felony convictions, including personal use of a deadly weapon, robbery, and attempted robbery. Martinez also had suffered three felony convictions for either public intoxication or use of a controlled substance, two convictions for battery, one conviction for brandishing a deadly weapon, and one conviction for assault. (Id. at p. 1512.) Martinez was sentenced to life imprisonment under the Three Strikes law for possessing methamphetamine and attempting to deter a peace officer from carrying out his duties. Although his final offenses were neither violent nor serious, we determined that his sentence did not "shock the conscience" and that "defendants recidivism warrants lengthy incarceration." (Id. at pp. 1512, 1517.)
Here, as in Martinez, defendants criminal history reveals a long pattern of illegal conduct and an inability to conform his behavior to the dictates of the law. The seriousness of defendants current offenses and his continuous criminal history establishes that he is a recidivist offender who poses a danger to society. The punishment imposed in this case was not disproportionate to the nature of his offense given his recidivist history.
Lynch next requires defendant to prove that his punishment was more severe than other more serious crimes in California. (Lynch, supra, 8 Cal.3d at pp. 427-429.) Although defendant does not specifically address this prong of the Lynch analysis, we briefly respond to the theoretical argument that his punishment for his current felony offense is disproportionately greater than punishment for other first-time and recidivist offenders in our state. Because defendants prior and present convictions together are responsible for his punishment in this case (People v. Askey , supra, 49 Cal.App.4th at p. 388), we only consider whether defendants punishment for his current offense with two prior strikes is disproportionately greater than the punishment imposed for more serious crimes accompanied by two strike convictions. In that regard, we note that Californias Three Strikes law treats all third offenders with two prior "strike" convictions the same way (see Martinez, supra, 71 Cal.App.4th at p. 1512) and that, historically, habitual offender statutes and Three Strikes statutes have withstood cruel and unusual challenges. (See, e.g., In re Rosencrantz (1928) 205 Cal. 534, 539, 271 P. 902; People v. Weaver (1984) 161 Cal. App. 3d 119, 126, 207 Cal. Rptr. 419; People v. Gray, supra, 66 Cal.App.4th at pp. 992-993; Martinez, supra, 71 Cal.App.4th at pp. 1511-1512, 1517; People v. Kinsey, supra, 40 Cal.App.4th at p. 1631.) It is within the punishing jurisdictions discretion to decide the amount of time a recidivist will serve isolated from society (Rummel v. Estelle, supra, 445 U.S. at pp. 284-285), and California has decided that recidivism in the commission of multiple felonies poses a manifest danger to society which justifies the imposition of a longer sentence. (People v. Karsai (1982) 131 Cal. App. 3d 224, 242, 182 Cal. Rptr. 406, overruled on other grounds in People v. Jones (1998) 46 Cal.3d 585, 600, fn. 8, 250 Cal. Rptr. 635, 758 P.2d 1165.)
Thus, any comparison to the sentence of a first time murderer who uses a deadly weapon is flawed, the proper comparison being to a recidivist murderer, whose punishment would be death or life without parole. "The commission of a single act of murder, while heinous and severely punished, cannot be compared with the commission of multiple felonies." (People v. Cooper, supra, 43 Cal.App.4th at p. 826.)
Given defendant is a repeat offender, his sentence must be compared with that of other recidivists with a similar record. We conclude such a comparison reveals that defendants state prison sentence of 25 years-to-life is not cruel and unusual. (Martinez, supra, 71 Cal.App.4th 1502.)
The third prong of the Lynch test requires comparison of punishment for the same offense in other jurisdictions. (Lynch , supra, 8 Cal.3d at p. 427.) With regard to this prong, defendant makes no substantive argument. We simply note that, while Californias Three Strikes scheme is among the toughest in the nation, that does not in itself prove that it is cruel and unusual punishment. Nothing in the law requires California "to march in lockstep with other states in fashioning a penal code." (Martinez, supra, 71 Cal.App.4th at p. 1516.) In People v. Ingram, supra, 40 Cal.App.4th 1397, 1413-1416, the court similarly noted that "Californias Three Strikes scheme is consistent with the nationwide pattern of substantially increasing sentences for habitual offenders." (See also Annot., Imposition of Enhanced Sentence Under Recidivist Statute as Cruel and Unusual Punishment (1976) 27 A.L.R. Fed 110, 117-118, and 2000 Supp., pp. 15-32.) That Californias recidivist scheme may be more extreme than others does not compel the conclusion that it is unconstitutionally cruel or unusual; "nothing in the prohibition against cruel or unusual punishment per se disables a state from responding to changed social conditions and increasing the severity with which it treats its recidivist felons." (People v. Cooper , supra, 43 Cal.App.4th at p. 827.)
The United States Supreme Court decided that a statutory scheme resulting in life imprisonment for a nonviolent felony does not violate the federal constitutional prohibition against cruel and unusual punishment. (Rummel v. Estelle, supra, 445 U.S. at pp. 284-285.) This court recently undertook an extensive comparison of Californias habitual offender statutes with other states habitual offender statutes. (Martinez , supra, 71 Cal.App.4th at pp. 1513-1516.) We discovered that the spirit of Californias Three Strikes law is not uncommon, and that most states make some provision for increasing a habitual offenders punishment. (Id. at p. 1513.) While defendants sentence would be treated differently in some other states, Californias punishment is not the harshest. For example, both Louisiana and Mississippi impose life sentences without parole. (Id . at p. 1516.) Specifically, Mississippi requires life imprisonment for a third felony if any of the prior felonies were violent. (Id. at p. 1514.) Rhode Islands scheme also is similar to Californias Three Strike law; although discretionary, Rhode Island provides for a 25 year to life sentence for a third felony conviction. (Id. at p. 1515.) In Martinez, we acknowledged "that California is among the few states that impose a life sentence for a third felony conviction that is neither violent nor serious where at least one prior crime involved violence." (71 Cal.App.4th at p. 1516.) Nevertheless we concluded, "that Californias punishment scheme is among the most extreme does not compel the conclusion that it is unconstitutionally cruel or unusual. This state constitutional consideration does not require California to march in lockstep with other states in fashioning a penal code. . . . [P] The needs and concerns of a particular state may induce it to treat certain crimes or particular repeat offenders more severely than any other state . . . . [P] Whether a particular punishment is disproportionate to the offense is a question of degree. The choice of fitting and proper penalty is not an exact science but a legislative skill involving an appraisal of the evils to be corrected, the weighing of practical alternatives, consideration of relevant policy factors, and responsiveness to the public will. In some cases, leeway for experimentation may be permissible. Thus, the judiciary should not interfere in the process unless a statute prescribes a penalty "out of all proportion to the offense." (People v. Cooper, supra, 43 Cal.App.4th at p. 827, quoting In re Lynch, supra, 8 Cal.3d at pp. 423-424.)" (Martinez , supra, 71 Cal.App.4th at p. 1516.) While Californias laws are severe, they do not rise to the level of cruel and unusual punishment.
Of course, analyzing whether a prison sentence is unconstitutionally cruel or unusual must be tailored to the individual defendant. Our prior opinion in Martinez and conclusion about Mr. Martinez does not dictate our conclusion regarding the defendant in the present case. Here, while defendant is neither the most violent criminal nor the most frequent recidivist, his current record of several felony convictions, including two armed robberies,supports the need for lengthy incarceration. Under these circumstances, we conclude that, under either the California or the federal constitution, the trial courts decision to impose the term of 25 years to life was not "so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity. [Citation.]" (In re Lynch, supra, 8 Cal.3d at p. 424.)
Taking into account the totality of the circumstances and not only the nature of the current crime, we conclude the punishment imposed is not constitutionally infirm.
III. Disposition
Count 2 is ordered stricken. As so modified, the judgment is affirmed. The trial court is ordered to amend the abstract of judgment to delete Count 2 and its concurrent sentence of 25-years-to-life. The trial court is ordered to send a copy of the amended abstract of judgment to the Department of Corrections.
The petition for rehearing is denied.
WE CONCUR: Premo, Acting 67 P.J., Bamattre-Manoukian, J.