Opinion
C079420
03-13-2017
THE PEOPLE, Plaintiff and Respondent, v. TROY LEE TAYLOR, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 14F05572)
On appeal from a conviction for possession of methamphetamine for sale, defendant Troy Lee Taylor contends: (1) his constitutional rights were violated when the trial court permitted a defense witness to invoke his Fifth Amendment privilege against self-incrimination; (2) prosecutorial misconduct occurred when the People interfered with the witness's decision to testify and refused to grant him immunity, and defense counsel was ineffective in failing to object on that basis during trial; and (3) the trial court abused its discretion when it denied defendant's request to strike a prior strike, sentenced him to the upper term, and without reason denied his requests to impose the lower term and strike the one-year prior prison enhancement. We shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On August 11, 2014, police officers executed a search warrant for Christopher Lang and his residence for evidence relating to the suspected sale of methamphetamine. During surveillance of Lang's home, officers observed defendant leaving the residence by himself in a black Ford Crown Victoria, then returning in the same car with Lang and a woman. Less than an hour later, defendant was seen getting into the driver's side of the car and leaving the residence again by himself. When defendant returned, he parked in the driveway and went inside the residence. Defendant and Lang were seen going "from the front of the house to the car, from the car to the garage, from the garage back to the car, from the car to the side of the house, back to the car." Defendant was also observed "getting into the driver's seat and into the trunk and then continuing back and forth through the house."
Officers waited until Lang and defendant were in the front of the residence to approach and arrest them. Officers opened the passenger side door of the car and, in plain view, on the driver's side floorboard saw a gallon-sized plastic Ziploc bag containing 120 grams of an off-white clear, crystal substance, which they identified as methamphetamine. On defendant, officers found a cell phone bearing messages asking for different amounts of methamphetamine and inquiring about heroin that led them to believe defendant was involved in the sale of narcotics.
In the backyard, officers found a trash bag with six pounds of marijuana. Officers also searched the garage, where they found a black toiletry bag containing 108 grams of methamphetamine, a wallet with defendant's driver's license, and a tablet belonging to defendant. Officers also found two scales and smoking paraphernalia in the garage. Inside the residence, officers found two more scales; a shotgun; four one-by-one baggies, or "dime" baggies, with a red smiley face design; and a pay/owe notebook containing indicia that defendant was involved in the sales of narcotics.
Defendant was charged with one count of possession of methamphetamine for sale. (Health & Saf. Code, § 11378.) It was alleged defendant had a prior conviction for a serious and or violent felony for lewd and lascivious acts on a child occurring on December 11, 2002. It was also alleged defendant had a prior conviction for possession of cocaine for sale, occurring on February 14, 2006, and that defendant served a prior prison term for a 2005 conviction for lewd and lascivious acts on a child.
Lang, who had been charged as a codefendant, entered a plea of no contest relative to his involvement in the events of August 11, 2014. Defendant intended to call Lang as a witness, but Lang's counsel advised the trial court that Lang was awaiting sentencing on his plea deal and that Lang intended to invoke his Fifth Amendment privilege to avoid self-incrimination. Defendant's counsel stated he had not spoken with Lang and did not know what Lang would say about defendant. Nonetheless, counsel argued that because Lang had pleaded guilty without any guaranteed sentence, he could not further incriminate himself by testifying and, therefore, had no privilege against self-incrimination. The People indicated their intention was to forward a copy of the transcript of Lang's testimony to the probation department to be considered in Lang's sentencing, which could result in a recommendation that Lang receive an aggravated term depending on what conduct he admitted in his testimony, and that the sentencing of Lang had been delayed with this in mind. Lang's counsel too argued Lang could invoke the privilege because his testimony could put him at risk of a middle term or upper term on his sentencing if he were questioned about the full extent of his involvement with the drugs. The trial court found that there was a reasonable basis for Lang to invoke his privilege against self-incrimination in that "his testimony in this case could be used against him to worsen the outcome in his sentencing hearing."
Defendant then requested the trial court grant judicial immunity to Lang based on an offer of proof that Lang "would testify that even though [defendant] was in his home that day, the drugs were not [defendant's]. They were all [Lang's], both in the car, in the garage, in the backyard. [¶] . . . [Defendant] was there to buy drugs and use drugs, but not to sell those drugs. That they were in Mr. Lang's possession for the purpose of sale, not [defendant's]." The trial court, when it first became clear Lang would refuse to testify, asked whether the People had "any interest" in offering Lang use immunity. The People asked for time to consider that possibility, but the issue was never addressed again. At one point, before trial began and in the context of the People's motion in limine to introduce evidence of Lang's prior convictions, defendant asserted that Lang had been offered a plea with a promise of no state prison on one count and dismissal of another if he agreed not to testify for defendant. The People indicated that while an offer of no state prison on one charge had been made, there had been no discussion at that point about that offer being contingent on Lang's refusing to testify. Rather, the People stated, Lang's counsel presented a counteroffer that would involve a lesser charge and sentence and Lang would agree not to testify. The People declined that offer. Ultimately, the trial court was dubious of its authority to grant judicial immunity, and concluded that it would not grant immunity because, in light of other testimony and evidence, the proffered testimony would not be clearly exculpatory or essential.
A jury found defendant guilty of possession of methamphetamine for sale. Defendant admitted his prior strike conviction of lewd and lascivious conduct with a minor under the age of 14, and the trial court sustained the allegation that defendant had a prior conviction for possession of cocaine for sale. Defendant filed a Romero request to dismiss the prior strike, which the trial court denied. The trial court then sentenced defendant to a total state prison term of 10 years comprised of the upper term of three years, doubled to six years due to his prior strike conviction, for possession for sale of methamphetamine; an additional three years for the prior conviction for possession for sale of cocaine; and one year for the prior prison term.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
DISCUSSION
On appeal, defendant contends the trial court erred when it allowed Lang to assert his Fifth Amendment privilege against self-incrimination after entering an open plea agreement because Lang could no longer incriminate himself and was aware of the maximum sentence of four years eight months. We conclude the trial court did not err because Lang retained his right to assert the privilege until a final judgment had been entered and he was at risk of having his testimony considered in aggravation to receive a maximum sentence.
Defendant also contends prosecutorial misconduct occurred when the People allegedly interfered with Lang's decision to testify by threatening to impact Lang's sentencing, leading him to invoke his privilege against self-incrimination, then refusing to grant Lang immunity in an effort to distort the factfinding process. Defendant argues that even if a claim of prosecutorial misconduct was not preserved on appeal due to failure to object during trial, defendant is still entitled to relief because he was afforded ineffective assistance of counsel. We are not persuaded because we conclude there was no prosecutorial misconduct.
Finally, defendant contends the trial court abused its discretion in denying his Romero request, in imposing the upper term, and in summarily denying his request to impose the lower term and strike the prior prison enhancement. We conclude the trial court did not abuse its discretion because defendant fell within the spirit of the "Three Strikes" scheme. Additionally, we conclude defendant's claims that the trial court erred in imposing the upper term and in summarily denying his request to strike the prior prison enhancement are meritless.
1.0 Lang's Privilege Against Self-incrimination
Defendant contends the trial court erred by allowing Lang to assert his Fifth Amendment privilege against self-incrimination because Lang had already been convicted and could no longer incriminate himself. Defendant further argues that "even if the fact that Lang had not yet been sentenced was a permissible consideration, in this case Lang had entered a plea open to being sentenced to the maximum time of four years eight months, and thus regardless of his testimony on behalf of [defendant], he could not have received a greater penalty than that to which he had agreed and/or was advised was possible at the time he entered his plea and had been convicted." We disagree and find the trial court did not err in allowing Lang to assert his privilege against self-incrimination.
A witness may not be compelled to incriminate himself when the witness " 'has "reasonable cause to apprehend danger from a direct answer." ' " (People v. Williams (2008) 43 Cal.4th 584, 614 (Williams); People v. Savala (1981) 116 Cal.App.3d 41, 53 [witness entitled to assert privilege against self-incrimination after accepting a plea bargain and being advised of the maximum sentence because the court could consider any statements in aggravation during sentencing].) A trial court may, however, deny the privilege if it is " ' " ' "perfectly clear, from a careful consideration of all the circumstances in the case, that the witness is mistaken, and that the answer[s] cannot possibly have such tendency" to incriminate.' " ' " (Williams, supra, at p. 614.) Additionally, a witness retains his Fifth Amendment privilege "at least until he has been sentenced and, if he appeals, pending resolution of the appeal." (People v. Fonseca (1995) 36 Cal.App.4th 631, 635.) We review de novo whether the trial court properly permitted Lang to invoke his privilege against self-incrimination. (Williams, supra, at p. 614.)
Here, defendant intended to call Lang as a witness to testify that the drugs found in the car and in the garage belonged to Lang, and that defendant was only at Lang's residence to use drugs, not to sell them. Lang asserted his Fifth Amendment right against self-incrimination, and the trial court found there was a reasonable basis for him to do so based on the likelihood that anything Lang said about the case could have been used against him in his sentencing that was still pending. Indeed, the plea agreement Lang entered, in which he pleaded no contest to possession of both methamphetamine and marijuana for sale, left sentencing open to the discretion of the trial court, up to the statutory maximum of four years eight months, with sentencing to be conducted following the completion of defendant's trial.
Though Lang had been advised he could receive a maximum sentence of four years eight months as a result of his open plea agreement, the trial court retained the power to set an appropriate sentence upon receipt and consideration of the probation report. Thus, if Lang testified to owning the drugs, the People could have used this information to write a sentencing memorandum in aggravation requesting that the trial court impose the maximum sentence. Therefore, Lang still had reasonable cause to "apprehend danger" from a direct answer. (Williams, supra, 43 Cal.4th at p. 614.) Accordingly, the trial court did not err in allowing Lang to assert his privilege against self-incrimination.
2.0 Prosecutorial Misconduct
Next, defendant contends prosecutorial misconduct occurred when the People purportedly interfered with Lang's decision to testify and refused to grant him immunity in violation of defendant's right to due process, compulsory process, and a fundamentally fair trial. People argue this contention is forfeited because defendant did not object on this basis in the trial court. (People v. Clark (2011) 52 Cal.4th 856, 960 [to preserve a claim of prosecutorial misconduct for appellate review, generally, a defendant must make a timely objection, make the basis known, and request the court to admonish the jury]; see People v. Scott (1994) 9 Cal.4th 331, 352, 354, fn. 15.) However, defendant further claims he is still entitled to relief because to the extent his claim was not fully preserved for failure to object during trial, the forfeiture is the result of ineffective assistance of counsel. We conclude that regardless whether defendant forfeited his claim of prosecutorial misconduct by failing to object, the claim still fails on the merits.
To prevail on his claim of ineffective assistance of counsel, defendant must show (1) that his counsel's representation was deficient, i.e., that it "fell below an objective standard of reasonableness" and (2) that prejudice resulted, i.e., that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694 [80 L.Ed.2d 674, 693].) "If the defendant makes an insufficient showing on either one of these components, the ineffective assistance claim fails." (People v. Rodrigues (1994) 8 Cal.4th 1060, 1126.) We conclude defendant has not shown defense counsel was deficient in failing to object on the basis of prosecutorial misconduct. (People v. Bradley (2012) 208 Cal.App.4th 64, 90 ["Failure to raise a meritless objection is not ineffective assistance of counsel."].)
A prosecutor is " 'not under a general obligation to provide immunity to witnesses in order to assist a defendant.' " (People v. Masters (2016) 62 Cal.4th 1019, 1051 (Masters.) And, "California courts have no authority to confer use immunity on witnesses." (Ibid.) However, there may be a claim of prosecutorial misconduct warranting a retrial "[i]f a defendant can show that the prosecutor refused to grant immunity " 'with the deliberate intention of distorting the judicial factfinding process . . . ." ' " (Ibid.) To prevail on such a claim, a defendant must satisfy each of the following five factors: (1) witness immunity was properly sought in the trial court; (2) the defense witness was available to testify; (3) the offered testimony was clearly exculpatory; (4) the testimony was essential; and (5) there were any strong governmental interests, which countervail against granting immunity. (Masters, at pp. 1051-1052.) We review de novo to determine whether there was prosecutorial misconduct that "constituted outrageous governmental conduct in violation of defendant's due process rights . . . ." (People v. Uribe (2011) 199 Cal.App.4th 836, 860.)
Here, defendant has not shown that the offered testimony was "clearly exculpatory." (Masters, supra, 62 Cal.4th at p. 1051.) " '[D]efense evidence that is overwhelmingly undercut or undermined by substantial prosecution evidence in the record becomes so lacking in credibility that it cannot be clearly exculpatory.' " (Id. at p. 1053.) That is the case here, where defendant sought to have Lang testify that the drugs were his and that defendant was there only to use drugs and not to sell them. The People presented evidence that only defendant was seen driving the car in which officers found the bag of methamphetamine on the driver's side floorboard, the windows of the car were up and doors closed when officers approached to arrest defendant and Lang, and no one was seen approaching the driver's side of the vehicle. This evidence alone would have compromised and contradicted Lang's proffered testimony that the drugs found in defendant's vehicle were his, and that he threw them in the car when he saw the police.
Moreover, officers found a bag in the garage that contained methamphetamine, defendant's tablet, and a wallet containing his driver's license. Inside of Lang's house, officers found a pay/owe notebook, which contained indicia that defendant was involved in the sale of narcotics. And, lastly, defendant's cell phone bore several received text messages requesting to buy methamphetamine. Therefore, because there was substantial evidence that overwhelmingly undercut Lang's proffered testimony, that testimony was not "clearly exculpatory."
Neither has defendant shown that Lang's testimony was essential. Indeed, defendant does not even address that element on appeal. Nevertheless, there are at least two other potential witnesses who could testify, as defendant averred Lang would, that the drugs seized on August 11, 2014, were not defendant's but were Lang's. Both defendant himself and Diane S., who identified herself as Lang's wife, were present at the scene in addition to Lang and would have had knowledge regarding who was selling the drugs that were seized.
Defendant also contends that the People's "threats to act to adversely impact Lang's sentencing if Lang testified for the defense" amounted to intimidation that led directly to Lang's invoking his privilege against self-incrimination. Statements or threats that interfere with a defendant's compulsory process right amount to prosecutorial misconduct. (People v. Treadway (2010) 182 Cal.App.4th 562, 568.) However, there is no indication in the record that the People made any statements to Lang that he would be prosecuted for any crimes he revealed in the course of his testimony other than the ones to which he had already pleaded, or that any threats were made of a perjury prosecution. (Ibid.) Nor is there any suggestion that the People advised Lang not to testify or made it an outright condition of their plea bargain that he not testify. (Id. at p. 569.) Rather, the record indicates that the People clarified that their offer to Lang was not contingent on Lang's declining to testify and that the People refused the counteroffer presented by Lang's counsel that would have made his plea deal dependent on a refusal to testify. Nor do we find any evidence in the record of " 'intemperate behavior . . . sufficiently egregious that it infect[ed] the trial with such a degree of unfairness as to render the subsequent conviction a denial of due process,' " or " 'the use of deceptive or reprehensible methods to persuade the trial court or the jury.' " (Masters, supra, 62 Cal.4th at p. 1052.) Accordingly, we conclude defendant has not shown the occurrence of prosecutorial misconduct on the record before us.
3.0 Sentencing
Defendant raises three sentencing issues. First, defendant contends the trial court abused its discretion when it denied his motion to dismiss a prior strike. We conclude the trial court did not abuse its discretion when it found defendant falls within the spirit of the Three Strikes scheme and thus denied his Romero motion. Second, defendant asserts the trial court abused its discretion in sentencing him to the upper term without providing reasons or considering defendant's reference letters, when in fact the record clearly demonstrates the trial court did consider his reference letters and explain its reasoning in imposing the upper term. Third, we reject defendant's claim that the trial court abused its discretion when it summarily denied his motion to strike the mandatory one-year prior prison enhancement. In addition, because in making these two latter claims defendant misstates the record, ignores the trial court's express findings and the relevant law, and wastes attorney and judicial resources, we hold these claims are frivolous.
3.1 Romero Motion
Defendant moved the trial court to strike his prior conviction for lewd and lascivious conduct pursuant to Penal Code section 1385, based on his claim that the prior conviction was remote in time, had resulted in probation, was a nonviolent conviction, and was unrelated to the current offense. On appeal, he contends the trial court abused its discretion in denying the motion based on its findings that defendant failed to remain crime free since committing the prior strike and that he committed the current offense while on parole. We disagree.
Undesignated statutory references are to the Penal Code.
Trial courts may dismiss a prior strike when a court finds a defendant falls outside the spirit of the Three Strikes law. (§ 1385; Romero, supra, 13 Cal.4th at pp. 529-530.) In choosing whether to exercise this discretion, the court must determine whether " 'in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.' " (People v. Carmony (2004) 33 Cal.4th 367, 377.) We review the trial court's decision whether to strike a prior felony conviction for abuse of discretion, meaning we will not reverse that decision "unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (Id. at pp. 375, 377.)
Here, the trial court found "defendant's repeated failures to avail himself of previous rehabilitative options, as well as his current ineligibility for probation," did not support dismissing the strike. Though defendant's prior conviction was more than a decade old, it was for a serious crime of committing a lewd and lascivious act with a child under the age of 14 when defendant was 24 years old. Since his incarceration in 2006 (for possession of cocaine for purposes of sale), defendant has been released on parole nine times and returned to custody eight times, with his last discharge from custody being September 25, 2014. Indeed, at the time he committed the current crimes, he was on parole. Therefore, the trial court acted well within its discretion in finding that defendant had not remained crime free since that prior serious felony conviction, had failed at attempts to rehabilitate himself for drug addiction, and had engaged in drug sales in the current case. Accordingly, the trial court did not err in denying defendant's request to strike his prior conviction.
3.2 Upper Term and Enhancement
Defendant lastly contends the trial court abused its discretion in summarily denying his requests to impose the lower term and to strike the one-year mandatory prior prison enhancement and in imposing the upper term without explaining its reasons for doing so. We reject these claims, and further find them frivolous for the reasons we explain below.
When "selecting one of the three authorized prison terms referred to in section 1170[, subdivision] (b), the sentencing judge may consider circumstances in aggravation or mitigation, and any other factor reasonably related to the sentencing decision." (Cal. Rules of Court, rule 4.420(b).) The presence of a single aggravating circumstance renders it lawful for the trial court to impose an upper term sentence. (§ 1170, subd. (b); People v. Black (2007) 41 Cal.4th 799, 815.) However, the trial court must "justify its sentenc[ing] choice by a statement of reasons . . . both by statute and by the rules of court." (People v. Gulbrandsen (1989) 209 Cal.App.3d 1547, 1552; § 1170, subd. (c).) We review the trial court's sentencing choice for abuse of discretion, reversing only where there is a clear showing the sentence is arbitrary or irrational. (People v. Ogg (2013) 219 Cal.App.4th 173, 185.)
Our review of the record reveals that, contrary to defendant's contention, the trial court did consider his reference letters of good moral character in its sentencing determination. And, more importantly, the trial court did expressly explain that its reasons for imposing the upper term were that "defendant was on parole when the crime was committed, pursuant to California Rules of Court, rule 4.421(b)(4), and his prior performance on probation and parole have been unsatisfactory." The trial court is not required to provide any further explanation than this, and there is not any indication the trial court erred in finding that these factors in aggravation had been met. Thus defendant's briefing mischaracterizes the record and makes a frivolous claim, a claim he fails to withdraw in his reply brief even after the Attorney General provided the appropriate record citation. Accordingly, defendant has not shown any abuse of discretion by the trial court in imposing the upper term or in declining to impose the lower term.
Neither has defendant shown any abuse of discretion by the trial court in declining to strike the sentencing enhancement for his prior prison term conviction. Section 667.5, subdivision (b) mandates that "when the new offense is not a violent felony and 'where the new offense is any felony for which a prison sentence is imposed, in addition and consecutive to any other prison terms therefor, the court shall impose a one-year term for each prior separate prison term served for any felony.' " (People v. Gulbrandsen, supra, 209 Cal.App.3d at p. 1553.) With these types of mandatory sentence enhancements, "there is no choice to be made and hence a statement of reasons justifying the selection of the compelled sentence is not required." (Ibid.) Thus, the trial court does not need to recite reasons when failing to strike the prior prison term enhancement. (Id. at pp. 1554-1555.) Defendant ignores this controlling and well-settled law. Therefore the claim is frivolous as well as without merit..
DISPOSITION
The judgment is affirmed.
BUTZ, Acting P. J. We concur: DUARTE, J. RENNER, J.