Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 07F05214.
ROBIE, J.
After the trial court denied his motion to suppress evidence, a jury found defendant Keven Michael Fisk guilty of possession of methamphetamine for sale. The trial court denied defendant’s motion to strike his prior convictions and sentenced him to 25 years to life in state prison.
Defendant appeals, raising four contentions: (1) the trial court erred in denying his motion to suppress; (2) the evidence was insufficient to support his conviction; (3) the trial court abused its discretion in declining to strike prior convictions; and (4) the resulting sentence is cruel and unusual punishment. Finding no merit in defendant’s arguments, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
One afternoon in May 2007, Officer William Niethammer of the Citrus Heights Police Department was on patrol with another officer in a marked patrol car when he saw several people (including defendant) standing on a sidewalk. The sidewalk was near a business that had a “no loitering” sign. As Officer Niethammer drove toward the group, two people from the group left; defendant remained on the sidewalk holding his bicycle. Officer Niethammer did not activate the sirens on his patrol car. He parked in a parking space in front of defendant and walked up to defendant while the other officer stayed with the patrol car. He never commanded defendant to stop, and neither officer had his weapon drawn. It took Officer Niethammer roughly 10 seconds to walk up to defendant.
Officer Niethammer greeted defendant and asked him, “how’s it going.” Defendant responded, “fine.” When Officer Niethammer asked defendant if he was on probation or parole, defendant said he was on parole for robbery. At one point, defendant gave Officer Niethammer his California ID card. When Officer Niethammer asked if he could pat defendant for weapons, defendant replied, “no problem.” The other officer then took defendant’s bicycle and placed it to the side.
As a result of the search, Officer Niethammer found several “baggies” in defendant’s coin pocket: eight had a white crystalline substance later found to be methamphetamine and nine were empty. Defendant had over four grams of methamphetamine capable of getting someone “high” for 400 hours. The eight baggies with methamphetamine had a street value of approximately $400 to $480. Defendant had no money or drug paraphernalia with him, and he was never tested for any drugs he might have consumed. At the police station, defendant told Officer Niethammer he had information “on several large drug dealers [who] he would like to give up.”
An amended information charged defendant with possession of methamphetamine for sale. It also alleged defendant was convicted of robbery in 1993 and 1997 and that these convictions were prior serious felonies. The information further alleged defendant served a prior prison term for each robbery and served prior prison terms for a 1991 conviction of possession of a controlled substance and a 1987 conviction of possession of a controlled substance for sale.
Defendant moved to suppress evidence from the police encounter. The trial court denied his suppression motion. After defendant was convicted, the trial court found at a bifurcated proceeding that four of the five enhancement allegations were true.
The court declined to strike any prior serious felonies under People v. Superior Court (Romero) (1996) 13 Cal.4th 497, declined to place defendant on probation, and sentenced him to 25 years to life in state prison.
DISCUSSION
I
Motion To Suppress Evidence
Defendant first contends the trial court erred in denying his suppression motion because the evidence found from his encounter with the police was the fruit of an unlawful detention. We disagree.
A
Standard Of Review
“In reviewing the trial court’s ruling on the suppression motion, we uphold any factual finding, express or implied, that is supported by substantial evidence, but we independently assess, as a matter of law, whether the challenged search or seizure conforms to constitutional standards of reasonableness.” (People v. Hughes (2002) 27 Cal.4th 287, 327.)
B
Defendant Consented To The Police Encounter
“‘Consensual encounters do not trigger Fourth Amendment scrutiny. [Citation.] Unlike detentions, they require no articulable suspicion that the person has committed or is about to commit a crime. [Citation.] [¶] The United States Supreme Court has made it clear that a detention does not occur when a police officer merely approaches an individual on the street and asks a few questions. [Citation.] As long as a reasonable person would feel free to disregard the police and go about his or her business, the encounter is consensual and no reasonable suspicion is required on the part of the officer. Only when the officer, by means of physical force or show of authority, in some manner restrains the individual’s liberty, does a seizure occur. [Citations.] “[I]n order to determine whether a particular encounter constitutes a seizure, a court must consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers’ requests or otherwise terminate the encounter.” [Citation.] This test assesses the coercive effect of police conduct as a whole, rather than emphasizing particular details of that conduct in isolation. [Citation.] Circumstances establishing a seizure might include any of the following: the presence of several officers, an officer’s display of a weapon, some physical touching of the person, or the use of language or of a tone of voice indicating that compliance with the officer’s request might be compelled.’” (People v. Garry (2007) 156 Cal.App.4th 1100, 1106.)
Here, a reasonable person in defendant’s position would have felt free to decline Officer Niethammer’s questions and go about his business. Officer Niethammer did not exert any physical force when he first approached defendant, and he never commanded defendant to stop. The words he used to greet defendant -- “how’s it going” -- reflected a polite, conversational tone. Defendant responded “fine,” which also reflected a conversational tone. Rather than accuse defendant of a violation, Officer Niethammer simply informed defendant he was standing in a “no loitering” area. When Officer Niethammer asked defendant if he was on probation or parole, defendant answered in the affirmative. Officer Niethammer asked if he could pat defendant for weapons to which defendant replied, “no problem.” Overall the tone was polite and conversational.
More coercive circumstances are needed to conclude a person on a public walkway is not free to terminate an encounter with a police officer. For example, in People v. Jones (1991) 228 Cal.App.3d 519, the officer arrived in front of the defendant by suddenly driving his patrol car on the wrong side of the road, parking diagonally against traffic 10 feet away from the defendant, and telling the defendant “‘“Stop. Would you please stop.”’” (Id. at pp. 521-522.) Here, in contrast, Officer Niethammer parked his patrol car in a parking space, took roughly 10 seconds to walk from his patrol car to defendant, and never told defendant to stop. Additionally, Officer Niethammer did not shine a light on defendant (People v. Garry, supra, 156 Cal.App.4th at p. 1112) or activate the sirens on his patrol car. Furthermore, Officer Niethammer was alone when he spoke to defendant. Thus, the encounter was consensual, and the trial court properly denied the motion to suppress.
II
Sufficiency Of Evidence
Defendant next contends there was insufficient evidence to support his conviction. Reviewing the evidence in the light most favorable to the People (People v. Redmond (1969) 71 Cal.2d 745, 755), we disagree. Defendant had approximately four grams of methamphetamine capable of getting someone “high” for 400 hours. A usable dosage is.1 grams for an 8 to 12 hour high; heavy users still only use approximately half a gram a day. Defendant had eight baggies of methamphetamine valued at roughly $400 to $480. He told officers at the police station he wanted to “give up” several larger drug distributors.
From all of this, a jury could have reasonably found defendant intended to sell the methamphetamine. Given the quantity and the street value of methamphetamine and the testimony about how much the average person uses, the jury could have believed defendant had too much for one person to use for himself. The empty baggies could have been reasonably found to be packaging for future street sales. Having no money with him, defendant fits with Detective Michael Wells’s testimony that often in drug sales one person carries the drugs while another person carries the money. Defendant’s knowledge about larger drug dealers could have been found to imply he acquired that knowledge because he was a seller within a bigger drug trafficking organization; this corresponds with Detective Brad Rose’s testimony that dealers are classified as low-level, mid-level, and high-level dealers. Thus, the evidence was sufficient to support the jury’s finding that defendant intended to sell the methamphetamine.
Despite this evidence, defendant raises the following arguments he claims undercut it, namely: (1) proof he had enough methamphetamine to satisfy his needs for several days does not show he intended to sell what he could not immediately use; (2) other cases in which courts affirmed convictions involved drugs greater in quantity and more expensive than the methamphetamine here; (3) methamphetamine is generally packaged in amounts of half a gram to a gram so he could not have bought one large bag for his own personal use; (4) the police found no cell phone, cash, scales, or other drug paraphernalia; and (5) he was never tested for intoxication.
We are not persuaded. In determining the sufficiency of the evidence on appeal, it does not matter that his behavior reasonably could be reconciled with a finding he did not intend to sell the methamphetamine. The question for us is not whether the jury reasonably could have reached a different conclusion; rather, it is whether any reasonable jury could have reached the conclusion this jury did. (People v. Redmond, supra, 71 Cal.2d at p. 755.) The answer to that question is “yes.”
III
Declining To Strike A Prior Conviction
Next, defendant asserts the trial court abused its discretion in refusing to strike prior convictions. We disagree.
A
Standard Of Review
While the trial court has the power to dismiss a strike conviction (People v. Superior Court (Romero), supra, 13 Cal.4th at pp. 529-530), we will not disturb the trial court’s ruling absent an abuse of discretion (People v. Gillispie (1997) 60 Cal.App.4th 429, 434). Under this standard, the inquiry is whether the ruling “‘falls outside the bounds of reason’ under the applicable law and the relevant facts.” (People v. Williams (1998) 17 Cal.4th 148, 162.)
B
The Trial Court Did Not Abuse
Its Discretion In Sentencing Defendant
Given defendant’s criminal history, on which the court relied when it denied defendant’s Romero motion, we conclude the court’s decision not to dismiss any of his strikes was well within the bounds of reason. The court admitted this was not an easy ruling. It appreciated defendant’s previous cooperation in a murder investigation and noted it was not keen on putting someone in a dangerous setting like prison because of a nonviolent offense. The court also recognized drugs had an adverse role on not only defendant’s life, but his parents’ lives as well while he was growing up.
Still, defendant had two convictions of robbery and two narcotics offenses. The trial court found “[t]he scourge of our society today are these drugs. [¶]... [¶] [I]t is obvious that it is the drugs that have led to all of these crimes. It would appear that everything you’ve been convicted of is one way or another drug related, and we see that too often. [¶]... [¶] The Court has an obligation to protect society as much as we can. We’ve got to get the dealers, we’ve got to get the drugs out of society as much as we can.”
As the trial court noted, defendant’s criminal history was “absolutely totally miserable.” It included conspiring to escape from jail, false imprisonment, and possession of a firearm. This was a reasonable basis for the court not to exercise its discretion to dismiss defendant’s strikes. (See People v. Williams, supra, 17 Cal.4th at p. 162.) Defendant’s arguments to the contrary are unavailing.
IV
Cruel And Unusual Punishment
Last, defendant argues his sentence is cruel and unusual punishment under the United States Constitution. We reject this claim.
Although defendant admits he did not properly raise the issue with the trial court, we exercise our discretion and will address the claim on the merits nonetheless. (People v. Williams, supra, 17 Cal.4th at pp. 161-162, fn. 6.) If the People had made a credible claim that the evidence related to this issue was not sufficiently developed in the trial court because of defendant’s failure to raise the issue, then declining to consider the forfeited issue would be justified. But the People simply argue “it necessarily involves an inquiry different from that required in the exercise of Romero discretion.” This argument does not address whether the facts related to the two different inquiries are nonetheless substantially the same. Accordingly, the People have offered no good reason for not addressing the issue on the merits, while defendant has offered one.
A
Standard Of Review
Although the Eighth Amendment of the United States Constitution prohibits cruel and unusual punishment, strict proportionality between crime and punishment is not required. “‘Rather, [the Eighth Amendment] forbids only extreme sentences that are “grossly disproportionate” to the crime.’” (People v. Cartwright (1995) 39 Cal.App.4th 1123, 1135.)
The United States Supreme Court has repeatedly upheld statutory schemes resulting in life imprisonment for recidivists upon a third conviction for a nonviolent felony because punishing recidivists is a legitimate penological goal. “[T]he State’s interest is not merely punishing the offense of conviction.... ‘[I]t is in addition the interest... in dealing in a harsher manner with those who by repeated criminal acts have shown that they are simply incapable of conforming to the norms of society.’” (Ewing v. California (2003) 538 U.S. 11, 29 [155 L.Ed.2d 108, 122], citing Rummel v. Estelle (1980) 445 U.S. 263, 276 [63 L.Ed.2d 382, 392].) In Ewing, the defendant was sentenced to 25 years to life because he stole three golf clubs valued at $399 each. (Ewing, at pp. 18-20 [155 L.Ed.2d at pp. 115-117].) The sentence was enhanced because he had prior burglary convictions and a robbery conviction. (Id. at p. 20 [155 L.Ed.2d. at p. 116].) Nevertheless, the Supreme Court held his sentence was not cruel and unusual punishment. (Id. at pp. 30-31 [155 L.Ed.2d at p. 123].)
B
Defendant’s Sentence Is Not Grossly
Disproportionate To The Crime
Applying the proportionality test in light of Ewing, we first note defendant’s sentence is the same as the one imposed in Ewing. (Ewing v. California, supra, 538 U.S. at p. 20 [155 L.Ed.2d at p. 116].) The law he violated is at least as serious as stealing three golf clubs. (Id. at p. 19 [155 L.Ed.2d at p. 116].) Second, as previously discussed, in addition to the two felony convictions, defendant’s history of criminal activity includes conspiring to escape from jail, false imprisonment, and possession of a firearm. While on parole, he committed the present offense.
Considering, as we should, not only the seriousness of his current offense, but also his history of repeated criminal violations, we cannot say his sentence is grossly disproportionate to his current offense when viewed in light of his long-standing criminal history. (Ewing v. California, supra, 538 U.S. at p. 29 [155 L.Ed.2d at p. 122-123].) Therefore, the sentence does not constitute cruel and unusual punishment.
DISPOSITION
The judgment is affirmed.
We concur: SCOTLAND, P. J., BUTZ, J.