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People v. Collins

California Court of Appeals, Second District, Third Division
Sep 10, 2008
No. B205557 (Cal. Ct. App. Sep. 10, 2008)

Opinion

NOT TO BE PUBLISHED

APPEAL from judgments of the Superior Court of Los Angeles County, Nos. BA307847, BA282403 & TA077048, C. H. Rehm, Judge.

Linn Davis, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.


ALDRICH, J.

Shawn Collins appeals from the judgments entered following a jury trial which resulted in his conviction of the sale of cocaine base (Health & Saf. Code, § 11352, subd. (a)), the finding he previously had been convicted of attempted burglary (Pen. Code, §§ 664/459) within the meaning of the Three Strikes law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and revocation of probation in case Nos. BA282403 and TA077048. The trial court sentenced Collins to eight years in prison. We affirm the judgments.

Shawn Collins is also known as Quashon Easley and Quashon Collins.

FACTUAL AND PROCEDURAL BACKGROUND

1. The facts: Case No. BA307847.

a. The prosecution’s case.

Romeo Rubalcava is a police officer for the Los Angeles Police Department, assigned to the “Narcotics Division Buy Team.” Wearing plain clothes, Rubalcava “purchas[es] narcotics from the street level dealers.” The bulk of Rubalcava’s career as a police officer has been as an undercover narcotics officer. He has made over 450 arrests for drug-related offenses and has been part of approximately 6,000 drug-related operations.

At approximately 5:35 p.m. on August 17, 2006, Rubalcava was working undercover in Los Angeles on Spring Street, between 7th and 4th Streets. There, he observed Collins and another individual, Kenneth Easley, appear to enter into a “hand-to-hand [narcotics] transaction.” Rubalcava approached the two men and asked Collins “if he had work.” According to Rubalcava, when one asks someone on the street if they “have work,” one is asking the individual if they sell narcotics. Collins responded by asking Rubalcava how much he wanted. When Rubalcava told Collins he wanted a “dove,” or $20 worth, Collins replied that he only had a nickel, or $5 worth, but that he could contact someone who could provide Rubalcava with the amount he wanted. Rubalcava agreed to purchase Collins’s nickel and to walk to the Huntington Hotel, where he would be able to purchase the remaining $15 worth of narcotics.

In the meantime, Easley, who was standing to Rubalcava’s right, held out what appeared to be a clear plastic bindle with an off-white solid resembling rock cocaine inside. Rubalcava handed to Easley a $5 bill and, in exchange, Easley handed to Rubalcava the bindle.

During the exchange between Rubalcava and Easley, Collins was talking on a cell phone. After finishing his conversation, Collins told Rubalcava that they were to meet someone at the Huntington Hotel, which is located on the east side of Main Street, just north of 8th Street, roughly two blocks from Spring and 7th Streets.

Collins, Easley and Rubalcava walked to the Huntington Hotel. Several minutes later, Collins told Rubalcava, “ ‘He is coming.’ ” After Rubalcava then handed to Collins a $20 bill, Collins walked to the middle of the block where he was met by a man in a blue baseball cap. The man in the cap handed a clear plastic bindle to Collins who, in turn, handed something to the man in the cap. As the man in the cap then walked away, Rubalcava walked toward Collins. Rubalcava saw Collins rip open a bindle with his teeth and pour four off-white solid rocks into his hand. Collins gave the rocks to Rubalcava, who took them and, as he walked away, gave a predetermined signal to other officers in the area that a narcotics transaction had taken place.

Collins and Easley were taken into custody by “uniformed chase officers.” At the time of his arrest, Collins had in his possession $41 in cash. The cash, however, did not include the marked $20 bill Rubalcava had given to Collins.

For the previous seven years, Los Angeles Police Officer Michael Saragueta has been assigned to the Narcotics Division as part of a “buy team.” Like Rubalcava, he works undercover making purchases of narcotics from street dealers in the Los Angeles area. At approximately 5:30 p.m. on August 17, 2006, Saragueta was working as a “point officer.” His duties were to observe Rubalcava and to watch for “things like weapons,” “stash locations,” and “multiple suspects.” Saragueta would then broadcast his observations to the chase officers.

Saragueta saw Rubalcava make two narcotics buys that afternoon: one from Easley and one from Collins. There was no doubt in Saragueta’s mind that a narcotics transaction had occurred between Rubalcava and Collins. After the transaction with Collins, Rubalcava gave the predetermined sign that a narcotics transaction had just occurred. Saragueta then broadcast to uniformed chase officers the exact location of Collins and Easley. When the officers arrived, they took Easley and Collins into custody.

Los Angeles Police Officer Russell Kumagai was working as a chase officer on August 17, 2006. At approximately 5:30 that afternoon, Kumagai, who was dressed in his police officer’s uniform, received an order to arrest Easley and Collins. After receiving detailed descriptions of each of the two men, Kumagai went to the area where Collins had sold narcotics to Rubalcava and immediately upon arriving placed Collins and Easley under arrest. Rubalcava then verified that Kumagai had arrested the right individuals. A subsequent search of Collins revealed United States currency in his front and rear pants pockets.

Supervising Los Angeles Police Department Detective Thomas Mossman oversees a narcotics division buy team. Mossman “determines locations that [officers are] going to start at, [decides] which undercovers are going to go out in the field[,] . . . verbally call[s] the operation while it’s going on and then ultimately relay[s] information to the units that are supporting the operation.” Mossman had organized the August 17 operation which led to Collins’s arrest.

Lisa Smith is a criminalist for the Los Angeles Police Department. Smith photographed and analyzed the “rocks” sold by Easley and Collins to Rubalcava and, after following proper laboratory procedures and policies, determined they contained a total of .43 net grams of cocaine in the form of cocaine base.

b. Defense evidence.

Kenneth Easley testified that on August 17, 2006, he was walking down the street when a “cop c[a]me up to [him] and asked for $5 worth of rock.” Easley, who did not yet know the man was a police officer, told the man that he only had $5 worth, but that he was willing to sell it. The officer gave to Easley $5 and Easley gave to the officer several small rocks of cocaine. As Easley then began to walk away, he noticed another man standing nearby. The same officer who had purchased the $5 worth of cocaine from Easley asked the man for “a dove piece of rock.” The man, in an angry voice, responded, “ ‘No. Get the hell away from me.’ ” The “dude” then walked away from the officer. Although there were approximately 15 people in the area, Easley did not see anyone wearing a blue baseball cap.

As Easley walked away, he noted that the officer was following him. A short time later, Easley ran into Collins. As the two men stood conversing on Main Street, uniformed police officers arrived and placed them both under arrest.

According to Easley, it would not have been possible for Collins to have sold an officer $20 worth of rock cocaine. Collins never called anyone on a cell phone and he was “nowhere around when [Easley] made the transaction with the officer.”

On cross-examination, Easley testified he sold the undercover police officer $15 worth of rock cocaine for $5. Easley explained that it was “[his] last, and [he] was [just] trying to get it off.” Accordingly, Easley sold to Rubalcava three rocks of cocaine for the price of one.

Easley was close to Collins. The two are brothers and Easley did not want anything bad to happen to Collins. Easley said he would do anything to protect Collins.

2. Procedural history: Case Nos . TA077048, BA282403 & BA307847.

On October 17, 2003, Collins was charged by felony complaint with first degree attempted burglary. Collins pleaded guilty to the offense and was granted three years probation. The case, which originated in Riverside County as case No. RIF113049, was transferred to Los Angeles County as case No. TA077048.

At a hearing held on June 16, 2005, Collins was found to be in violation of his probation in case No. TA077048 due to the filing of case No. BA282403. In that matter, Collins was charged with possession of cocaine base (Health & Saf. Code, § 11350, subd. (a)). Collins entered a plea of guilty to possession of cocaine and admitted the alleged Three Strikes prior conviction (the Riverside attempted burglary). On August 12, 2005, the trial court suspended imposition of sentence in the matter and granted Collins probation for a period of three years. However, Collins failed to appear for proceedings held on May 16, 2006 and probation was revoked. A bench warrant was issued for Collins’s arrest.

Collins appeared at proceedings held on August 29, 2006. He stipulated to a violation of probation in case No. BA282403 based on the May 24, 2005 filing of the present case, No. BA307847. Probation in case No. BA282403 was revoked, then reinstated.

A preliminary hearing was held in the present case, No. BA307847, on August 31, 2006. On September 14, 2006, Collins was charged by information with the sale or transportation of a controlled substance in violation of Health and Safety Code section 11352, subdivision (a). It was further alleged Collins had suffered a prior conviction in case No. TA077048 (the Riverside attempted burglary) for purposes of the Three Strikes law.

That same day, September 14, 2006, Collins made a Marsden motion. Collins indicated he wished to have his counsel make a Pitchess motion with regard to the officer who had arrested him. Collins claimed the officer had arrested the wrong person and that he, Collins, had simply been in the wrong place at the wrong time. He wished to go to trial on the matter rather than enter into a plea bargain. However, Collins’s counsel had advised him that he would, in all likelihood, receive a much lighter sentence if he were to enter a plea rather than go to trial. The trial court advised Collins that counsel was simply advising him, as would any other attorney, and that if he wished to go to trial, he was entitled to do so. The trial court found no breakdown in the attorney-client relationship and denied the Marsden motion.

People v. Marsden (1970) 2 Cal.3d 118.

Pitchess v. Superior Court (1974) 11 Cal.3d 531.

On November 2, 2006, Collins made a second Marsden motion. After determining that nothing had really changed and that Collins was simply unhappy with counsel’s advice, the trial court denied the motion.

On January 11, 2007, Collins waived his right to counsel and proceeded with his trial in propria persona. On February 23, 2007, Collins made a Pitchess motion, which the trial court summarily denied.

See Faretta v. California (1975) 422 U.S. 806.

After the jury reached its verdict finding Collins guilty of the sale or transportation of cocaine base, the trial court informed Collins that the jury would next consider whether the alleged prior Three Strikes conviction were true. When Collins objected, indicating that, as a result of disciplinary proceedings he had been removed from the “pro per module,” and thus needed more time to prepare, the trial court stated, “I understand that. I’m certain the judge who granted you your pro per privileges explained to you that pro per privileges come[] along with a lot of negatives, one of those being you do not have the same access to communications equipment and to private investigators that the People have. [¶] But this is a decision you made. As I explained to you, you are not entitled to any special consideration.” After further discussion, the trial court determined Collins no longer wished to represent himself and appointed “standby counsel” for the trial on the prior convictions.

Jean Watt works for the District Attorney’s Office in the Complaints Division of the Priors Unit. Watt, a paralegal, researches “criminal backgrounds and obtain[s] certified documents to prove felony convictions.” In order to show that Collins previously had been convicted of attempted first degree burglary in case No. RIF113049 (later re-numbered to TA077048), Watt presented certified documents pertaining to Shawn Collins, who, as stated previously, is also known as Quashon Easley or Quashon Collins, including a certified copy of the complaint, a photograph of Collins and certified copies of minute orders. After deliberating, the jury found true the allegation Collins had previously been convicted of attempted residential burglary in case No. RIF113049.

For his conviction of the sale or transportation of cocaine base in violation of Health and Safety Code section 11352, subdivision (a) (case No. BA307847), the trial court imposed the middle term of four years in prison, doubled to eight years pursuant to the Three Strikes law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). The trial court ordered Collins to pay a $200 restitution fine (Pen. Code, § 1202.4, subds. (b)-(d)), a $200 parole revocation restitution fine (Pen. Code, § 1202.45), a $20 court security fee (Pen. Code, § 1465.8, subdivision (a)(1)), and a $50 crime lab analysis fee (Health & Saf. Code, § 11372.5).

With regard to case Nos. BA282403 and TA077048, the trial court took judicial notice of the files in the two cases and in case No. BA307847. Finding that, in each of the two matters (BA282403 and TA077048), Collins had violated a term of his probation in that he had failed to “obey all laws,” the trial court revoked and terminated probation. The court then ordered Collins to pay a $200 probation revocation restitution fine for each case, or a total of $400 (Pen. Code, § 1202.44).

Collins was awarded presentence custody credit for 508 days actually served and 254 days of good time/work time, for a total of 762 days.

Collins filed a timely notice of appeal in case Nos. BA307847, BA282403 and TA077048 on January 24, 2008.

Counsel was appointed to represent Collins on appeal on April 21, 2008.

CONTENTIONS

After examination of the record, appointed counsel filed an opening brief which raised no issues and requested this court to conduct an independent review of the record.

By notice filed May 8, 2008, the clerk of this court advised Collins to submit within 30 days any contentions, grounds of appeal or arguments he wished this court to consider. After receiving a number of extensions, on May 30, 2008 and August 7, 2008, Collins filed supplemental briefs in which he asserts: (1) the Sheriff discriminated against him when the Sheriff failed to reinstate his in propria persona privileges in accordance with a court order; and (2) he was denied a fundamental constitutional right when the trial court failed to provide him with a licensed public defender.

DISCUSSION

1. Collins has failed to show he suffered any prejudice as a result of discrimination by the Sheriff’s Department.

Collins indicates his in propria persona library privileges were revoked after a law library book was found in his cell. Citing the Superior Court of Los Angeles County, Local Rules, rule 6.41(f), he claims the sheriff discriminated against him when the sheriff failed to reinstate his privileges in accordance with a trial court order.

Rule 6.41(f) states in relevant part: “Pro Per inmates are subject to discipline for violations of jail rules and regulations in the same manner as all other inmates. All reports of inmate discipline shall be filed with the trial court. After reviewing the discipline report, the court may request the Sheriff to apply for an order modifying or revoking the inmate’s Pro Per privileges or Pro Per status. [¶] The Sheriff may apply for an order modifying or revoking some or all of an inmate’s Pro Per privileges or Pro Per status for cause. Except in emergency situations, Pro Per privileges may not be revoked or modified as a concomitant of either jail discipline or administrative segregation without complying with [certain] procedures[.]” One of the “procedures” requires notification of the trial court, which shall hold a hearing on the matter.

In the present case, the record indicates Collins did not lose his in propria persona status at the jail until it was time for the trial on his prior conviction. At that time, the trial court gave Collins the option of continuing in propria persona or being represented by stand-by counsel. A lengthy discussion ensued during which Collins continually complained that he “was [being] denied [his] First Amendment” rights, including his right to use the prison law library. Collins, however, refused to tell the court whether he wished to continue in propria persona or to be represented by counsel. After the trial court asked Collins for the third time if he wished to continue in propria persona and Collins, for the third time, refused to answer, the trial court “revoked” Collins’s in propria persona status and appointed stand-by counsel to represent him. Since Collins essentially waived his right to proceed in propria persona and chose to be represented by counsel during the phase of the trial during which the truth of his prior conviction was litigated, he cannot claim he was denied a constitutional right. Moreover, our review of the record of the proceedings during which the truth of the prior conviction was litigated indicates Collins received more than adequate representation.

2. The trial court properly provided Collins with a licensed defense attorney.

Collins asserts he was denied his Fifth and Sixth Amendment rights when the trial court provided him with an unlicensed individual to represent him at the trial on his prior conviction. However, a careful review of the record fails to indicate that the individual assigned to represent Collins was not a licensed attorney. The trial court referred to the individual appointed as “standby counsel.” During proceedings held before the jury, counsel introduced himself as an “attorney” who would be representing Collins. Absolutely nothing in the record indicates counsel appointed to represent Collins was not a licensed attorney. Collins has failed to show any error.

REVIEW ON APPEAL

We have examined the entire record and are satisfied Collins’s counsel has complied fully with counsel’s responsibilities. (Smith v. Robbins (2000) 528 U.S. 259, 278-284; People v. Wende (1979) 25 Cal.3d 436, 443.)

DISPOSITION

The judgments are affirmed.

We concur: KLEIN, P. J., CROSKEY, J.


Summaries of

People v. Collins

California Court of Appeals, Second District, Third Division
Sep 10, 2008
No. B205557 (Cal. Ct. App. Sep. 10, 2008)
Case details for

People v. Collins

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. SHAWN COLLINS, Defendant and…

Court:California Court of Appeals, Second District, Third Division

Date published: Sep 10, 2008

Citations

No. B205557 (Cal. Ct. App. Sep. 10, 2008)