Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Stanislaus County. Super. Ct. No. 1218189, Loretta Murphy Begen, Judge.
James F. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Leanne Le Mon, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Gomes, J.
A jury found Deborah Jean Joshua guilty of possession of cocaine base for sale. After finding four sentence enhancement allegations true, the trial court imposed a 13-year sentence. On appeal, she argues an evidentiary issue and a sentencing issue. We will affirm the judgment.
BACKGROUND
On May 10, 2007, a jury found Joshua guilty of possession of cocaine base for sale on November 5, 2006. (Health & Saf. Code, § 11351.5.) At a subsequent bifurcated trial, the trial court found true (1) a serious felony prior allegation within the scope of the three strikes law (Pen. Code, §§ 211, 667, subds. (b)-(j), 1170.12, subds. (a)-(d)), (2) a prior controlled substance conviction allegation (Health & Saf. Code, §§ 11352, 11370.2, subd. (a)), and (3) two prior prison term allegations (Pen. Code, § 667.5, subd. (b)). The trial court imposed a 13-year sentence – eight years (double the four-year midterm) on the possession of cocaine base for sale plus a consecutive three-year enhancement for the prior controlled substance conviction plus a consecutive one-year enhancement for each prior prison term.
ISSUES ON APPEAL
On appeal, Joshua argues that (1) the record shows an insufficiency of the evidence of possession of cocaine base for sale and (2) the trial court’s ruling declining to strike her strike prior was an abuse of discretion and an imposition of constitutionally disproportionate punishment.
DISCUSSION
1. Insufficiency of the Evidence
Joshua argues that the record shows an insufficiency of the evidence of possession of cocaine base for sale. The Attorney General argues the contrary.
The crux of Joshua’s argument is People v. Parra (1999) 70 Cal.App.4th 222 (Parra). On the basis of the “well settled” rule of law that “‘experienced officers may give their opinion that the narcotics are held for purposes of sale based upon such matters as quantity, packaging and normal use of an individual,’” and on a record in that case of expert officers testifying “that, based on the quantity of the controlled substance seized and lack of drug paraphernalia in the car, defendants possessed cocaine with the specific intent to sell,” Parra concluded that there was “sufficient evidence to support defendants’ conviction for violation of Health and Safety Code section 11351.” (Id. at p. 227, citing People v. Newman (1971) 5 Cal.3d 48, 53 (Newman), disapproved on another point in People v. Daniels (1975) 14 Cal.3d 857, 862.)
“Implied in Parra, ” Joshua argues, “is the corollary that an expert officer cannot just opine that in his or her opinion the quantity of drugs seized alone, without further evidence connected to the seized drugs, constitute [sic] and [sic] amount possessed for sale.” The reason for the corollary, she contends, is that “if the quantity of drugs seized alone, without some connection to other related evidence – i.e., other indicia of drug sale activity – [constitutes a sufficiency of the evidence] then in every drug case an officer could testify, based on nothing more than personal opinion, that the drugs were possessed for sale based solely on quantity seized.” “Under Parra’s reasoning,” she claims, “an officer’s expert opinion based solely on quantity seized, is not in fact an expert opinion at all. It is simply a personal opinion unconnected to actual evidence of possession for sale.”
In rejoinder, the Attorney General argues that People v. Carter (1997) 55 Cal.App.4th 1376 (Carter) “confirms that an experienced officer may give an opinion that narcotics were held for the purpose of sale based on the quantity alone.” In Carter, a prosecution for possession of cocaine base for sale, the issue on appeal was whether the trial court erred by admitting the testimony of an expert officer “that defendant possessed rock cocaine for purposes of sale, based on the quantity of the drug possessed.” (Id. at p. 1377.) Holding that the trial court properly admitted the expert officer’s testimony, Carter relied on the rule of law articulated by Newman (on which Parra, too, relied) that “‘experienced officers may give their opinion that the narcotics are held for purposes of sale based upon such matters as the quantity, packaging and normal use of an individual.’” (Id. at p. 1378, citing Newman, supra, 5 Cal.3d at p. 53.)
Here, on the basis of his training and experience, the expert officer testified that the cocaine base at issue was “possessed for the purpose of sales.” The prosecutor asked him, “Why is that?” The expert officer replied, “It’s simply the quantity here. You have six significant rocks of cocaine base.” Later, the prosecutor again asked him, “Why is that?” He testified, “The amount, again.” Asked to “describe that,” he testified, “You have six items here. Six items at a location that is known and has history of sales of cocaine base. It is extremely unusual to find an individual that is a user to possess six of these items at the same time simply for the purposes of consumption at the same time.”
“Why would that be extremely unusual?,” the prosecutor asked. The expert officer replied, “People that tend to be addicted and use rock cocaine, a good portion of their life revolves around obtaining enough money to purchase a rock, consume that rock, and then go back out and try to come up with the money again to purchase an additional rock.” Additionally, he testified that dealers generally use razor blades to cut rock cocaine from larger chunks into smaller rocks, that the most common denomination of sale is a $20 rock, and that the going rate on the street for the six rocks Joshua possessed was “at least $20 apiece.”
Our duty on a challenge to the sufficiency of the evidence is to review the whole record in the light most favorable to the judgment for substantial evidence – evidence that is reasonable, credible, and of solid value – that could have enabled any rational trier of fact to have found the defendant guilty beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Prince (2007) 40 Cal.4th 1179, 1251.) In doing so, we presume in support of the judgment the existence of every fact a reasonable trier of fact could reasonably deduce from the evidence. (Ibid.) The same standard of review applies to circumstantial evidence and direct evidence alike. (Ibid.)
By the applicable standard of review, the expert officer’s testimony here is not at all a personal opinion solely about the quantity seized but an expert opinion squarely within the scope of the rule of law articulated by Newman “that the narcotics are held for purposes of sale based upon such matters as the quantity, packaging and normal use of an individual.” (Newman, supra, 5 Cal.3d at p. 53.) A sufficiency of the evidence of possession of cocaine base for sale is in the record.
2. Strike Prior
Joshua argues that the trial court’s ruling declining to strike her strike prior was an abuse of discretion and an imposition of constitutionally disproportionate punishment. The Attorney General argues the contrary.
Preliminarily, Joshua claims that the trial court ruled only on the abuse of discretion aspect, but not on the disproportionate punishment aspect, of her motion, on which ground she requests a remand for the trial court to do so. The record of the probation and sentencing hearing shows no request by Joshua’s attorney for separate rulings on the two aspects of her motion. At the end of the colloquy among court and counsel on the motion, the trial court stated broadly, “I am denying the motion,” without limiting the ruling to one part of the motion or the other. The record belies her argument that the trial court ruled on one, but not the other, aspect of her motion.
The standard of review of the abuse of discretion aspect of the trial court’s ruling is deferential. (People v. Carmony (2004) 33 Cal.4th 367, 371 (Carmony); People v. Superior Court (Romero)(1996) 13 Cal.4th 497; Pen. Code, § 1385.) Two fundamental precepts guide our review. First, the party challenging the sentence has the burden of clearly showing the sentencing decision was irrational or arbitrary. (Carmony, at p. 376.) In the absence of the requisite showing, we will presume the court acted to achieve legitimate sentencing objectives and will allow the sentencing decision to stand. (Id. at pp. 376-377.) Second, we have no authority to substitute our judgment for that of the trial court, so we cannot reverse a sentencing decision merely because reasonable people might disagree. (Id. at p. 377.) “Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.” (Ibid.)
Since all discretionary authority is contextual, we look to the legal principles and policies germane to the trial court’s ruling. (Carmony, supra, 33 Cal.4th at p. 377.) The intent of the three strikes law was to restrict the discretion of the trial courts in sentencing repeat offenders. (Ibid.) The three strikes law does not offer a discretionary sentencing choice, as do other sentencing laws, but instead establishes a sentencing norm, carefully circumscribes the power of the trial courts to depart from the norm, requires an explicit justification of any ruling that departs from the norm, and creates a strong presumption that any sentence conforming to the norm is rational and proper. (Id. at pp. 377-378.)
Before the probation and sentencing hearing, Joshua filed a motion requesting the exercise of the trial court’s discretion to strike her strike prior (robbery) within the scope of the three strikes law. Her motion acknowledged her strike prior, her 1999 prior conviction of sale or transportation of a controlled substance, and her two prison term priors, one in 1994 for petty theft with a prior and one in 1999 for sale or transportation of a controlled substance. Her motion argued that her 1986 strike prior was remote, that her new felony conviction of possession of cocaine base for sale was non-violent and essentially victimless, and that her age (55) and her health meant “she will like [sic] spend the best years of her remaining life behind bars.”
The prosecutor filed an opposition to Joshua’s motion arguing that possession of cocaine base for sale is not a victimless crime since “people who are on drugs commit other crimes, often violent ones” and cause a major problem in Stanislaus County. The opposition noted her two-decade saga of chronic felony sentences, misdemeanor sentences, and parole violations and California Law Enforcement Telecommunications System (CLETS) documentation of her 35 different aliases and seven different dates of birth. The opposition noted her parole agent’s characterization of her progress on parole as “terrible” and her history of absconding and never reporting after her release from custody. “A lengthy incarceration will prevent the defendant from selling drugs to others,” the opposition concluded.
At the probation and sentencing hearing, the trial court discussed Joshua’s motion and the prosecutor’s opposition and, while acknowledging a general inclination to strike a decades-old strike prior, denied her motion, finding that she had “continued her pattern of criminality even after being convicted of such a serious offense” as robbery. Indeed, her ongoing pattern of criminality confirms she still represents a danger to society. Since she fails to discharge her burden on appeal of clearly showing the sentencing decision was irrational or arbitrary, we will presume the court acted to achieve legitimate sentencing objectives and will allow the sentencing decision to stand. So we turn to her argument that her sentence is constitutionally disproportionate.
In determining whether punishment is constitutionally disproportionate, the courts examine the nature of the offense and offender, the punishment the same jurisdiction imposes for other offenses, and the punishment other jurisdictions impose for the same offense. (Solem v. Helm (1983) 463 U.S. 277, 290-291, overruled on another ground by Harmelin v. Michigan (1991) 501 U.S. 957, 964-965; In re Lynch (1972) 8 Cal.3d 410, 425-427.) A punishment involving “unnecessary and wanton infliction of pain” or “grossly out of proportion to the severity of the crime” violates the Eighth Amendment. (Gregg v. Georgia (1976) 428 U.S. 153, 173.) A punishment “so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity” violates article I, section 17 of the California Constitution. (In re Lynch, supra, 8 Cal.3d at p. 424, fn. omitted.)
California statutes imposing harsher punishment on recidivists have long withstood constitutional challenge. (See People v. Weaver (1984) 161 Cal.App.3d 119, 125-126, and cases cited.) Joshua argues that her two petty-theft-with-a-prior felony convictions since her 1986 robbery conviction were just “petty thefts made into felonies by operation of law, but essentially misdemeanors in character.” Not so. The primary goals of a recidivist statute “are to deter repeat offenders and, at some point in the life of one who repeatedly commits criminal offenses serious enough to be punished as felonies, to segregate that person from the rest of society for an extended period of time.” (Rummel v. Estelle (1980) 445 U.S. 263, 284-285.) Defining that point in one’s life and setting that time are both “matters largely within the discretion of the punishing jurisdiction.” (Id. at p. 285.) Joshua’s sentence constitutes neither cruel and unusual punishment under the federal Constitution nor cruel or unusual punishment under the state Constitution. (U.S. Const., 8th Amend.; Cal. Const., art. I, § 17; see Ewing v. California (2003) 538 U.S. 11, 20-31; Lockyer v. Andrade (2003) 538 U.S. 63, 66-77; People v. Martinez (1999) 71 Cal.App.4th 1502, 1516-1517.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: Wiseman, Acting P.J. Levy, J.