Opinion
NOT TO BE PUBLISHED
APPEALS from a judgment of the Superior Court of San Diego County No. SCD218894 Charles R. Gill, Judge.
O'ROURKE, J.
A jury convicted Raymond Williams III of transporting more than 28.5 grams of marijuana (Health & Saf. Code, § 11360, subd. (a); count 1) and possession of marijuana (Health & Saf. Code, § 11360; count 2). The trial court struck a prior strike conviction under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 and found true that Williams had two prison priors under the three strikes law. The trial court sentenced him to 6 years as follows: four years on the transportation conviction and one year each for the prison priors. The trial court awarded him credit for 81 actual days and 40 days under Penal Code section 4019.
All statutory references are to the Penal Code unless otherwise stated.
Williams contends the trial court failed to give a unanimity instruction on its own motion. He further contends he is entitled to recalculation of presentence work and conduct credits under amended section 4019, despite his prior serious felony conviction, because the trial court struck that conviction under Romero.
The People contend the trial court erroneously struck the strike under Romero. We affirm the judgment.
FACTUAL BACKGROUND
On February 11, 2009, San Diego Police Detective Daniel Billberry followed a vehicle previously identified and surveilled until it arrived at the Poway post office, where two passengers mailed a package. Detective Billberry stopped them and found another package containing approximately 4, 940 grams of marijuana in the vehicle. Williams and the three other passengers in the vehicle were arrested.
Ana Flores, a postal service inspector, retrieved the mailed package, which contained approximately 6, 319 grams of marijuana. Based on post office receipts found on Williams's person, investigators retrieved from the post office two other packages containing 6, 215 grams and 4, 515 grams of marijuana respectively that were mailed from a Mira Mesa Post Office earlier that day, and two other packages containing 4, 244 grams and 5, 128 grams of marijuana respectively mailed from an El Cajon post office the previous day. All of the mailed boxes were packaged alike and had been mailed to addresses in Rochester, New York. The police searched the residence of one of the passengers in the vehicle and found marijuana and materials for packaging that were similar to those used to assemble the boxes the investigators had retrieved. At the time of his arrest, Williams resided in Rochester, New York.
Detective Billberry testified that, based on his experience, different individuals participate in large drug purchases and shipments, including an out of town buyer, who typically checks the product to ensure good quality, negotiates the price, and ensures the drug is shipped to the exact address.
The People argued to the jury that Williams was a "money man" who conspired with the others and travelled from New York to evaluate the quality of the drugs, oversee the large-scale purchase, pay for the drugs and mail the packages. The prosecutor pointed out, "The Mira Mesa mailings were earlier in the day, hours earlier, and the El Cajon mailings were the day before. There's no reason [Williams] would need to carry those [post office receipts] if there wasn't some purpose for him doing so, and that purpose was so that he would have the tracking numbers, and he would be able to keep track of that."
Williams did not present trial evidence. Defense counsel argued to the jury that the People's theory of the case was wrong, and "Perhaps Mr. Williams came from New York to be with his friends.... He didn't know what they were doing. They knew his previous address because one of the records shows that that's an address, and they mailed the package there just so they could have a place to mail it. Somebody in Rochester would pick it up, and he's the fall guy. That's a reasonable interpretation. I don't have to prove it to you... because if [Williams] came to oversee it, why would you spend so much money, so much effort and so much time to mail a package to the wrong location? I assure you he probably knew the right address if that was his address."
DISCUSSION
I.
Williams contends, "[T]he prosecutor failed to clearly elect which one of these units of marijuana constituted the unlawful transportation charge and which unit constituted the possession for sale charge, as charged in counts one and two. Because a juror could have reasonably relied on any one of the various units of marijuana in finding [him] guilty of both counts, a unanimity instruction was required sua sponte."
"The right to a unanimous jury in criminal cases is guaranteed by the California Constitution. (Cal. Const., art. I, § 16; [citation].)... [¶] It is established that some assurance of unanimity is required where the evidence shows that the defendant has committed two or more similar acts, each of which is a separately chargeable offense, but the information charges fewer offenses than the evidence shows. [Citation.] [A unanimity] instruction is intended to eliminate the danger that the defendant will be convicted even though there is no single offense which all the jurors agree the defendant committed.... [I]t is generally agreed that under such circumstances, a unanimity instruction of some kind is required to ensure the defendant's constitutional right to a unanimous verdict." (People v. Sutherland (1993) 17 Cal.App.4th 602, 611-612.) "[T]he jury must agree unanimously the defendant is guilty of a specific crime. [Citation.] Therefore, cases have long held that when the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act." (People v. Russo (2001) 25 Cal.4th 1124, 1132.)
"The unanimity instruction is not required when the acts alleged are so closely connected as to form part of one transaction. [Citations.] The 'continuous conduct' rule applies when the defendant offers essentially the same defense to each of the acts, and there is no reasonable basis for the jury to distinguish between them." (People v. Stankewitz (1990) 51 Cal.3d 72, 100 (Stankewitz).)
Although there is a split of authority on whether the standard of prejudicial error is that standard outlined in Chapman v. California (1967) 386 U.S. 18, 24 or that outlined in People v. Watson (1956) 46 Cal.2d 818, we agree with the reasoning in People v. Smith (2005) 132 Cal.App.4th 1537, at pages 1545 to 1546, and People v. Wolfe (2003) 114 Cal.App.4th 177, at pages 185 to 188, that the failure to give a unanimity instruction has the effect of lowering the prosecution's burden to prove a defendant's guilt beyond a reasonable doubt under California law and therefore violates the defendant's federal constitutional right to due process of law. Accordingly, the proper standard of prejudice is the more stringent Chapman standard, requiring the People to show the error is harmless beyond a reasonable doubt.
Here, the continuous conduct rule, as stated in Stankewitz, supra, 51 Cal.3d 72, applies because in the context of the evidence and arguments, the jury was not provided any basis for reaching a different outcome regarding any of the individual packages of marijuana. The prosecutor argued, and the evidence, particularly the post office receipts, demonstrated beyond a reasonable doubt that Williams transported and possessed each of the marijuana packages related to those receipts and the other parcels of marijuana. Williams did not present different defenses to the charges regarding the separate packages; rather, he defended against all of them on grounds the prosecution did not prove its case beyond a reasonable doubt. He proposed the facts could be interpreted to show his friends set him up and mailed the drugs to New York without his knowledge.
Williams relies on People v. King (1991) 231 Cal.App.3d 493, 501 [holding that a unanimity instruction is required "where actual or constructive possession is based upon two or more individual units of contraband reasonably distinguishable by a separation in time and /or space and there is evidence as to each unit from which a reasonable jury could find that it was solely possessed by a person or persons other than the defendant"], and People v. Castaneda (1997) 55 Cal.App.4th 1067, 1071 [defendant offered separate defenses to two distinct acts of possession]. Those cases are inapposite because, as noted, on this record, the jury had no basis to distinguish the different parcels of marijuana.
Even assuming a unanimity instruction would have been appropriate under the circumstances, in light of our conclusion the continuous conduct rule applies, no prejudice resulted from the trial court's failure to instruct regarding unanimity.
II.
Williams contends he is entitled to recalculation of his presentence custody credits under section 4019 as amended effective January 25, 2010, because his appeal is pending and his conviction not final. He contends that his prior serious felony conviction does not disqualify him from the benefits of the statute because the trial court struck the prior conviction for sentencing purposes under section 1385 and Romero. Williams requests that we modify the judgment by adding 40 additional conduct credits.
The California Supreme Court has consistently held that striking a prior conviction for the purpose of imposing sentence does not remove the prior conviction from the defendant's record. "[W]hen a court has struck a prior conviction allegation, it has not 'wipe[d] out' that conviction as though the defendant had never suffered it; rather, the conviction remains a part of the defendant's personal history." (People v. Garcia (1999) 20 Cal.4th 490, 499.) "[W]hile a dismissal under section 1385 ameliorates the effect of the dismissed charge or allegation, the underlying facts remain available for the court to use." (In re Varnell (2003) 30 Cal.4th 1132, 1138; see also People v. Garcia (2004) 121 Cal.App.4th 271, 277.)
Williams cited People v. Jones (2010) 188 Cal.App.4th 165 in his reply brief for the proposition that the trial court has discretion to strike the prior serious felony for section 4019 purposes, and remand is proper for the trial court to exercise its discretion. The California Supreme Court granted review in Jones and therefore the case can no longer be cited. (Cal. Rules of Court, rule 8.1105(e)(1).) Pending further direction from the Supreme Court we believe the reasoning in In re Varnell, supra, 30 Cal.4th 1132 compels the conclusion that a serious felony prior conviction does not disappear for purposes of applying section 4019 merely because it has been struck by the court to allow the court to impose a lesser sentence in other respects. Accordingly, since Williams has a prior serious felony conviction, he is not eligible for increased presentence credits under the January 2010 amendment to section 4019.
III.
The People contend that, in light of Williams's background, character, prospects and the nature and circumstances of his present felony and past strike convictions, the trial court abused its discretion when it departed from the three strikes sentencing scheme and dismissed one of his prior strike convictions.
"[I]n ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law, on its own motion, 'in furtherance of justice' pursuant to Penal Code section 1385 [subd.] (a), or in reviewing such a ruling, the court in question must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (People v. Williams (1998) 17 Cal.4th 148, 161 (Williams).) The exercise of sentencing discretion under the three strikes law "must be an intensely fact-bound inquiry taking all relevant factors, including the defendant's criminal past and public safety, into due consideration." (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 981-982.) The inquiry does not focus solely on the defendant. " ' "S]ociety, represented by the People, has a legitimate interest in 'the fair prosecution of crimes properly alleged.' " ' " (Williams, at p. 159.) A trial court abuses its discretion when it dismisses a prior conviction solely to accommodate judicial convenience, due to court congestion, because a defendant pleads guilty, or conversely refuses to dismiss because of personal antipathy for the defendant while "ignoring 'defendant's background, ' 'the nature of his present offenses, ' and other 'individualized considerations.' " (Romero, supra, 13 Cal.4th at pp. 530-531.)
"It is not enough to show that reasonable people might disagree about whether to strike one or more of his prior convictions. Where the record demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the trial court's ruling, even if we might have ruled differently in the first instance." (People v. Myers (1999) 69 Cal.App.4th 305, 310.) Under this standard, the inquiry is whether the ruling " 'falls outside the bounds of reason' under the applicable law and the relevant facts." (Williams, supra, 17 Cal.4th at p. 162.) The burden is on the party attacking the sentencing decision to show that it was irrational or arbitrary. " 'In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.' " (Alvarez, supra, 14 Cal.4th at pp. 977-978.)
Here, in evaluating whether to dismiss any or all of Williams's prior strikes, the trial court noted it had discretion to do so in the interest of justice under section 1385 and Romero, and referenced the statutory factors to be taken into consideration. The trial court struck a prior conviction that involved the use of violence. Specifically, according to the probation report, Williams was convicted of robbery with aggravated assault using a weapon in 1990. The court stated, "I can appreciate... what the case law identifies as well as the statutory provisions, that the intent [of the three strikes law] is to reach habitual criminals and to keep them off the streets for purposes of ensuring public safety as well as punishment. Looking, however, at Mr. Williams' history — and it is obviously not positive. It is obviously one that includes a significant amount of criminal conduct." "[H]e had just turned 18 at the time of the strike. The strike itself is more than 19 years old, and the current crime for which [he] has been convicted is one that does not include violence. I can appreciate that there have been a number of different crimes since the strike, but none of them rise to the level of a strike." The trial court also noted that Williams was 37, an age "where he has the capability of getting his life turned around." Further, a letter submitted by his sister indicated to the court Williams had taken responsibility. Based on those facts and the remaining evidence regarding Williams's current and prior offenses, the trial court concluded Williams was outside the spirit of the three strikes law and granted his Romero motion.
The People conceded in the trial court, "yes, none of these offenses, whether they're criminal offenses or they're just arrests or they're prison violations — none of them rise to the level of strikes or none may involve extreme violence, " but proceeded to argue the law did not require a showing he was "not a habitual violent criminal, just a habitual criminal."
The People point to Williams's prior criminal history and the gravity of the drug crime as reasons for the trial court to have declined to strike the strike. But the trial court took those factors into account, and it presided over the case, thus it was aware of the amounts of marijuana involved and Williams's role in the conspiracy, stating, "I'm obviously extremely concerned about the facts in this case because I'm not necessarily prepared to indicate that [Williams] is a ringleader." On this record, we reach the same conclusion as the California Supreme Court in a case involving a Romero issue: "Applying the extremely deferential and restrained standard by which appellate courts are bound in these matters, we find the trial court did not abuse its discretion. Whatever conclusions other reasonable minds might draw, on balance we find the decision tolerable given the court's broad latitude." (Alvarez, supra, 13 Cal.4th at p. 981, footnote omitted.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: HUFFMAN, Acting P. J., NARES, J.