Opinion
A142997
08-20-2018
THE PEOPLE, Plaintiff and Respondent, v. DOFFUS LOMACK GALLON, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Lake County Super. Ct. No. CR927232)
A jury convicted appellant Doffus Lomack Gallon of possession of cocaine for sale (Health & Saf. Code, § 11351) and possession of cocaine (Health & Saf. Code, § 11350, subd. (a)). The trial court found he had two prior strike convictions (Pen. Code, § 1170.12, subds. (a)-(d)) and had served four prior prison terms (Pen. Code, § 667.5, subd. (b)). After striking the lesser included offense of cocaine possession, the court sentenced appellant to 12 years in state prison. Appellant contends the trial court prejudicially erred by failing to instruct the jury on the corpus delicti rule. He also argues the court abused its discretion in sentencing him to the upper term. Finally, appellant argues—and the Attorney General agrees—the sentencing minute order and abstract of judgment should be modified. We modify the sentencing minute order and abstract of judgment. As modified, we affirm.
I. FACTS
Around 10:30 p.m. on July 23, 2011, deputies from the Lake County Sheriff's Office, in conjunction with officers from the Clearlake Police Department, went to appellant's residence to perform a lawful search. Appellant's girlfriend and co-resident, Jasmine Davis-Whittington, answered the door and allowed the officers inside. Appellant was not present, but Jasmine's cousin Erica Lopez, Lopez's husband, and Jasmine's two children were in the house.
Jasmine Davis-Whittington is identified by several different surnames in the record on appeal. For purposes of clarity, we will refer to her as Jasmine.
Sergeant Gary Frace conducted a protective sweep of the residence. He entered the bedroom appellant shared with Jasmine and saw marijuana in plain sight on the nightstand next to the bed. On top of a dresser, behind a jewelry box belonging to appellant, Sergeant Frace spotted a baggie containing a white powder. He believed the powder was a controlled substance.
Sergeant Frace retrieved his police dog, Gracey, from his patrol vehicle. He brought Gracey to the bedroom doorway and gave her a command to "find it." Gracey went directly to the marijuana. Sergeant Frace praised Gracey and again commanded her to "find it." Gracey put her paws on the dresser, sniffed the jewelry box, and "produc[ed] a positive alert" on the dresser, signaling to Sergeant Frace that she detected a controlled substance in that location.
Detective Aaron Clark collected the baggie of white powder from behind the jewelry box. Inside the baggie were three smaller baggies containing white powder, each weighing approximately one gram. The white powder later tested positive for cocaine. One gram of cocaine was enough for "10 uses." The police did not find straws or other indicia of cocaine use in the house.
The officers asked Jasmine if the cocaine belonged to her. She denied knowing there were drugs in the house. At trial, she testified that the cocaine was not hers and that it belonged to appellant. Crystal Perea, an acquaintance of appellant called by the prosecution, testified on cross-examination that appellant "never" used or sold illegal drugs.
Appellant returned to the residence and Sergeant Frace read him his Miranda rights. Appellant waived his rights and spoke to officers in the driveway outside his house. Sergeant Frace asked appellant about the cocaine in his bedroom. Appellant offered to take a drug test to prove that he had not used cocaine. When Sergeant Frace told appellant he was not accusing him of using the drug, appellant said, "I don't use nothing man." Detective Clark then spoke to appellant. He asked appellant whose cocaine was inside his bedroom. Appellant stated, "It belongs to me." Detective Clark noted that the cocaine was "packaged for sale." Appellant told the officer he "made a mistake" and described his various financial hardships. He admitted that a "dude" he knew was "fronting" him the cocaine, meaning a primary supplier was providing him the drug to sell on the street.
The defense called Erica Lopez as a witness. Lopez testified that officers told Jasmine if she did not say the cocaine belonged to appellant, they would bring the adults to jail and Child Protective Services would take custody of Jasmine's children. The defense introduced prior statements made by Lopez and Jasmine in which both claimed to have overheard appellant's conversation with the officers outside the house. Both women related that the officers told appellant they would arrest all the adults and take Jasmine's children to Child Protective Services if he did not admit the cocaine was his.
On rebuttal, Sergeant Norm Taylor testified that he made sure no civilians left the house while appellant was outside speaking with the officers and that he could not hear the conversation from inside.
II. DISCUSSION
A. The Trial Court's Failure to Instruct the Jury on the Corpus Delicti Rule Was Harmless Error.
Appellant argues that the trial court prejudicially erred by failing to instruct sua sponte on the corpus delicti rule. The Attorney General concedes that the trial court had a sua sponte duty to instruct on the corpus delicti rule, but claims the error was harmless. We agree.
"In every criminal trial, the prosecution must prove the corpus delicti, or the body of the crime itself-i.e., the fact of injury, loss, or harm, and the existence of a criminal agency as its cause. In California, it has traditionally been held, the prosecution cannot satisfy this burden by relying exclusively upon the extrajudicial statements, confessions, or admissions of the defendant. [Citations.]" (People v. Alvarez (2002) 27 Cal.4th 1161, 1168-1169.)
"Virtually all American jurisdictions have some form of rule against convictions for criminal conduct not proven except by the uncorroborated extrajudicial statements of the accused. [Citations.] This rule is intended to ensure that one will not be falsely convicted, by his or her untested words alone, of a crime that never happened. [Citations.]" (People v. Alvarez, supra, 27 Cal.4th at p. 1169.) A trial court has a sua sponte duty to instruct the jury on the corpus delicti rule whenever a defendant's extrajudicial statements form part of the prosecution's evidence. (Id. at p. 1170; People v. Andrade (2015) 238 Cal.App.4th 1274, 1299.)
"Error in omitting a corpus delicti instruction is considered harmless, and thus no basis for reversal, if there appears no reasonable probability the jury would have reached a result more favorable to the defendant had the instruction been given. [Citations.]" (People v. Alvarez, supra, 27 Cal.4th at p. 1181.) As the California Supreme Court has explained, "the modicum of necessary independent evidence of the corpus delicti, and thus the jury's duty to find such independent proof, is not great. The independent evidence may be circumstantial, and need only be 'a slight or prima facie showing' permitting an inference of injury, loss, or harm from a criminal agency, after which the defendant's statements may be considered to strengthen the case on all issues. [Citations.] If, as a matter of law, this 'slight or prima facie' showing was made, a rational jury, properly instructed, could not have found otherwise, and the omission of an independent-proof instruction is necessarily harmless." (Ibid.)
Here, it is not reasonably probable the jury would have reached a different result had the instruction been given because there was sufficient independent evidence of the charged offenses. There was independent evidence that the cocaine belonged to appellant. The cocaine was found inside appellant's bedroom behind his jewelry box. Jasmine testified that it was not hers and that it belonged to appellant. There was independent evidence that the cocaine was for sale and not personal use. The cocaine was found in three baggies, suggesting that it was packaged for sale. Each baggie containing roughly equal-sized amounts of cocaine; each baggie contained enough cocaine for 10 uses. Additionally, Sergeant Frace and Detective Clark testified that appellant did not appear to be under the influence of cocaine, and the search of appellant's residence yielded no indicia of cocaine use. A defense witness also opined that appellant did not use illegal drugs. This independent evidence is more than adequate to establish, as a matter of law, that the failure to give the instruction was harmless. (People v. Alvarez, supra, 27 Cal.4th at p. 1181.) B. The Trial Court Did Not Abuse its Discretion in Sentencing Appellant to the Upper Term.
Appellant contends the trial court abused its discretion by imposing the upper term on his conviction of possession of cocaine for sale. He does not challenge the validity of the aggravating factors the trial court used to impose the upper term. Rather, he contends the trial court abused its discretion because it disregarded certain mitigating factors which he claimed justified a midterm sentence.
"When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court." (Pen. Code, § 1170, subd. (b).) " 'Sentencing courts have wide discretion in weighing aggravating and mitigating factors [citations] . . . . We must affirm unless there is a clear showing the sentence choice was arbitrary or irrational.' [Citation.] . . . . The trial court need not explain its reasons for rejecting mitigating factors. [Citation.]" (People v. Avalos (1996) 47 Cal.App.4th 1569, 1582-1583.)
Appellant concedes that a single aggravating factor is sufficient to justify the upper term. (People v. Black (2007) 41 Cal.4th 799, 813.) Here, the trial court cited three separate aggravating factors (numerous prior convictions, status as parolee, prior poor performance on probation and parole). Appellant does not challenge the validity of the aggravating factors. Rather, he argues that the trial court failed to consider the "positive factors" in his life that the court had previously noted at the Romero hearing. The same trial judge conducted the Romero hearing and the sentencing hearing. The court was not required, at the time of sentencing, to reiterate its prior characterization of appellant and his efforts, albeit unsuccessful, at turning his life around. In any event, at the sentencing hearing, the trial court noted mitigating factors that were not acknowledged in the probation report, including appellant's early acceptance of responsibility for his conduct. The trial court further explained that because it had determined that the aggravating factors far outweighed those in mitigation imposition of the midterm would be inappropriate. The court did not have to explain why it rejected appellant's proposed mitigating factors as grounds for midterm sentencing. (See People v. Sandoval (2007) 41 Cal.4th 825, 846-847 [a court must specify the reasons for its sentencing decision, but is not required to cite facts in support of the decision or to weigh aggravating or mitigating circumstances].) We see no abuse of discretion under the applicable law. C. The Sentencing Minute Order and Abstract of Judgment Must be Modified.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
Finally, the parties agree that the trial court imposed two unauthorized assessments as part of his sentence. They are correct.
At appellant's sentencing hearing, the court stated that it was imposing the financial assessments that were referenced in the probation report, which included a "Criminal Conviction Assessment of $60.00, ($30.00 for each of the two counts), pursuant to Government Code section 70373," and a "Court Operations Assessment of $80.00, ($40.00 for each of the two counts), pursuant to Penal Code Section 1465.8." Defense counsel, however, pointed out that the possession charge was a lesser included offense of the sales charge and, therefore, must be stricken. The court accordingly modified its sentencing order to strike appellant's conviction for drug possession. However, it made no further pronouncements regarding the financial assessments it had earlier imposed. The minute order for the sentencing hearing reflects that an "$80.00 (40.00 per count)" was imposed pursuant to Penal Code section 1465.8 and a "$60.00 (30.00 for each count)" was imposed per Government Code section 70373. The abstract of judgment likewise reflects those assessments.
Government Code section 70373 mandates that the court impose an assessment "on every conviction for a criminal offense" in the amount of $30. (Gov. Code, § 70373, subd. (a)(1).) Penal Code section 1465.8 similarly requires the court to impose an assessment "on every conviction for a criminal offense," but in the amount of $40. (Pen. Code, § 1465.8, subd. (a)(1).) Here, once the trial court struck the drug possession conviction, there was no longer a second conviction warranting the additional $30 and $40 assessments. Accordingly, the additional assessments imposed for the stricken drug possession conviction constituted an unauthorized sentence, which is subject to correction on appeal. (See People v. White Eagle (1996) 48 Cal.App.4th 1511, 1521.) We will strike the improperly imposed assessments and modify the sentencing minute order and abstract of judgment.
III. DISPOSITION
The September 3, 2014 sentencing minute order and abstract of judgment are modified to reduce the Penal Code section 1465.8 assessment to $40 and to reduce the Government Code section 70373 assessment to $30. The superior court clerk is directed to forward the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
/s/_________
REARDON, J. We concur: /s/_________
STREETER, ACTING P. J. /s/_________
SMITH, J.
Judge of the Superior Court of California, County of Alameda, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------