Opinion
E032133.
7-9-2003
THE PEOPLE, Plaintiff and Respondent, v. WILLIAM EUGENE HOLT, Defendant and Appellant.
Corinne S. Shulman, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Robert M. Foster and Pamela A. Ratner Sobeck, Supervising Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted William Eugene Holt of possessing methamphetamine (Health & Saf. Code, § 11377, subd. (a)). In bifurcated proceedings, the trial court found Holt had suffered one prior conviction for which he served a prison term (Pen. Code, § 667.5, subd. (b)) and five strike priors (Pen. Code, § 667, subds. (c) & (e)). He was sentenced to prison for 25 years to life, plus one year. He appeals, claiming his trial attorney was incompetent, his sentence is cruel and unusual, and the three strikes law is unconstitutional. We reject his contentions and affirm.
FACTS
At 7:40 p.m. on July 17, 2000, a deputy sheriff detained Holt, who was exhibiting signs of being under the influence. During a consented-to search of Holts motel room, which he occupied alone, the officer found a baggie containing methamphetamine, a cut piece of plastic straw, and a hypodermic needle and syringe atop a vanity light fixture. A different officer found another cut straw and a glass pipe behind the television in the room. Holt admitted having ingested methamphetamine at 4:00 p.m. that day, and he said the baggie of methamphetamine atop the light fixture had been given to him by a female. He said the cut straw and the syringe and needle belonged to him. His blood contained methamphetamine when it was drawn at 11:00 p.m. that night, and the baggie contained . 43 grams of a substance containing methamphetamine, which was a usable quantity.
At the time, Holt was in the company of his girlfriend, his sister and a fellow motel dweller, all of whom also ingested methamphetamine.
ISSUES AND DISCUSSION
1. Incompetency of Counsel
In contending that his trial attorney was incompetent for failing to object to statements made by the prosecutor during the latters argument to the jury, Holt misconstrues the prosecutors remarks. At trial, the People presented Holts statement to police that the methamphetamine found in his room had been given to him and that the paraphernalia also found there was his. As stated before, the People also introduced evidence that this methamphetamine weighed .43 grams, which was a usable quantity. The defense introduced evidence that the methamphetamine found in the motel room by the police had been hidden there by Holts sister after Holt had left the room. The defense introduced no evidence contradicting the prosecutors evidence that Holt had ingested methamphetamine hours before his arrest (in fact, the defenses star witness testified that he had), nor did defense counsel argue to the jury that Holt did not have methamphetamine in his system when his blood was taken hours after his arrest.
In argument to the jury, the prosecutor contended that the methamphetamine that was the subject of the charge was that which had been found in Holts motel room when it was searched. The prosecutor added, "Other facts you should take into consideration is that. . . fact . . . that someone recently ingested methamphetamine suggests also recent possession of methamphetamine. So you have whats called a circumstantial evidence case coupled with direct evidence. [P] The direct evidence is the evidence testified to by [the police officer], when . . . Holt admits to him these are my drugs. You have the direct evidence of [Holts girlfriend] who says, Yeah, we all had the drugs. He had the right to possess them. []He could have kicked us out of this room. He told me to bring the drugs over and we snorted it.[] . . . [P] And then you have the circumstantial evidence, the fact that . . . there is drug paraphernalia in the room, there is the methamphetamine in . . . Holts system, and hes under the influence." (Italics added.)
He also argued, ". . . Holt knows [the methamphetamine is] there because these are persons who gave him the drugs, and he puts it back in the light fixture to hide it with the other paraphernalia . . . to keep it out of view of other methamphetamine users."
In response, defense counsel argued that there was no evidence that the drugs found in the light fixture were Holts or that he had knowledge of their existence, adding, "Thats what hes being charged with . . . . [P] The . . . drugs that were up on top of the light fixture. Thats what hes being charged with. Hes not being charged with being under the influence . . . ."
During closing argument, the prosecutor said, "We already know [that Holt] knew what the nature of the substance was because he was ingesting it and he was high on drugs. . . . Theres paraphernalia for his use, and what does that all suggest? That he possessed methamphetamine. Its evidence, more than just the statements made by . . . Holt." The prosecutor again argued that Holt was guilty because he possessed the drugs found in his room. Finally, he said, " I can . . . proceed on two theories. If you believe the testimony of [Holts girlfriend], then you know [that] . . . Holt possessed methamphetamine, and he had control and the right to control that methamphetamine, whether or not it was the same methamphetamine that was thrown onto the top of the light fixture. [P] If you believe . . . Holts statement to the officer and all the other circumstantial evidence that shows that he possessed methamphetamine to use it, the fact that he hid it because other drug users would come into his room at times . . . ." (Boldface type added.)
Holt here contends that "the prosecutor . . . argued to the jury . . . that the very fact that [Holt] was under the influence suggested his recent possession of [methamphetamine]," and he cites the italicized portion of the above quoted argument by the prosecutor. In so doing, Holt takes the prosecutors remarks out of their proper context. The prosecutor was arguing that the fact that Holt had recently ingested methamphetamine was circumstantial evidence, as was circumstantial evidence of his possession of paraphernalia. His guilt was also established, along with direct evidence, in the form of his admission that the methamphetamine found in his room was his. He also argued that Holts ingestion was circumstantial evidence that he was aware of the nature of the methamphetamine found in his room, which was an element of the offense. Holt cites no cases holding that either argument is improper.
The cases he does cite, People v. Morales (2001) 25 Cal.4th 34, People v. Palaschak (1995) 9 Cal.4th 1236, 1237, 893 P.2d 717, People v. Spann (1986) 187 Cal. App. 3d 400, 409, 232 Cal. Rptr. 31, and People v. Sullivan (1965) 234 Cal. App. 2d 562, 565, 44 Cal. Rptr. 524, hold that a conviction for possession cannot be based solely on evidence of intoxication. The statement made by the prosecutor at the end of his closing argument, highlighted above in boldface type, was unfortunate, as it could have suggested, contrary to all the other argument and evidence, that the People were proceeding on the theory that Holt was guilty because he possessed the methamphetamine that showed up in his blood when the latter was tested. Even so, the statement did not run afoul of the above cited cases, as the prosecutor never urged that Holts intoxication, alone, was sufficient proof of his possession of the drugs in his system. Therefore, an objection to this brief and isolated remark would not have been successful.
2. Cruel and Unusual Punishment
In an argument authored before the recent United States Supreme Court decisions in Lockyer v. Andrade (2003) 155 L. Ed. 2d 144, 538 U.S. ___ and Ewing v. California (2003) 155 L. Ed. 2d 108, 538 U.S. ___ were handed down, Holt contends that his sentence of 25 years to life is cruel and unusual. In his reply brief, while he acknowledges the existence of these two decisions, he appears to reassert some of the arguments in his opening brief, while abandoning others. This leaves him with only the argument that his sentence is cruel and unusual because his current offense is not violent. However, Ewing specifically held that the gravity of the current offense, divorced from the defendants prior record, is not a determinate factor. (Ewing v. California, supra, 538 U.S. at p. ___ [123 S. Ct. at pp. 1189-1190) Holt has presented us with no persuasive argument why his case is one of those exquisite rarities for which we can conclude that the sentence shocks the conscience and offends fundamental concepts of due process. (People v. Weddle (1991) 1 Cal.App.4th 1190.)
3. Constitutionality of the Three Strikes Law
Holt attacks the three strikes law, asserting, "It does not discriminate between crimes in the abstract or culpability for particular acts or even recidivist conduct timing, and . . . it is mandatory in its application with no room to consider the individual offender or offense." While this may be true of Penal Code section 667, subdivisions (b) through (i), it is not true as a practical matter due to the existence of motions to dismiss priors under Penal Code section 1385, motions to reduce the current offense to a misdemeanor (Pen. Code, § 17, subd. (b)), and cruel and unusual punishment arguments. All of these work to "soften the blow" of the three strikes law and to permit the trial court to consider all those matters Penal Code section 667, subdivisions (b) through (i) do not. Therefore, we cannot agree with Holt that in its application, the three strikes law fails to meet constitutional scrutiny.
DISPOSITION
The judgment is affirmed.
We concur: McKINSTER, J., and RICHLI, J.