Opinion
B230368
08-03-2011
THE PEOPLE, Plaintiff and Respondent, v. KINGSLEY MARLON WALTERS, Defendant and Appellant.
Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. YA076433)
APPEAL from a judgment of the Superior Court of Los Angeles County, Eric C. Taylor, Judge. Affirmed.
Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Kingsley Marlon Walters appeals from the judgment entered following his plea of no contest to the transportation of marijuana (Health & Saf. Code, § 11360, subd. (a)) and his admission that he previously had been convicted of a "strike," a charge of aggravated assault suffered in the Superior Court of Dekalb County, Georgia, on October 9, 2000. The trial court sentenced Walters to two years in prison, doubled to four pursuant to the Three Strikes law and minus one-half, or 145 days, of his presentence custody credits. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The facts have been taken from the transcripts of the motion to suppress evidence and the preliminary hearing.
a. The prosecution's case.
David Payne is a Los Angeles County deputy sheriff assigned to the Lennox Division. Payne has been with the department for a little over 10 years and has been assigned to patrol for the last four years.
At approximately 12:37 a.m. on October 28, 2009, Payne and his partner, Deputy Reyes, were on patrol in their marked car. They were in Inglewood, driving east on 107th Street. As they approached Yukon Avenue, the deputies noticed a silver Chevy Malibu driving in front of them. The Chevy failed to make a complete stop at the stop sign at 107th and Yukon, then stopped past the limit line after it made a turn and was traveling south on Yukon at 109th.
After observing these violations, the deputies decided to conduct a traffic stop. Payne, who was driving the patrol car, got out and approached the driver's side of the Malibu. Reyes approached the passenger's side. As Payne spoke to the driver, who was alone in the car, he smelled a strong odor of marijuana through the Chevy's open window.
Payne was familiar with the odor of marijuana. He had undergone over 100 hours of narcotics training. As a patrol officer for the previous four years, he had made "upwards of 200 arrests for marijuana including [arrests for] sales, [for] transportation [and for] just . . . possession."
After Payne's partner, Deputy Reyes, asked the driver, Walters, if there was any marijuana in the car, the two deputies detained Walters and searched the interior of the Chevy. On the floorboard behind the passenger seat, Payne found a shoe box containing marijuana wrapped in cellophane. After the deputies made this discovery, Reyes placed Walters under arrest and read him his Miranda rights. At no time did the deputies ask Walters whether he had "a physician's recommendation" for the marijuana and at no time did they issue to Walters a traffic citation.
The prosecutor had a photocopy of a plant-like material wrapped in cellophane with a Sheriff's tag on it. It was marked People's one. The box with the cellophane inside was marked People's two. It was stipulated that the item found consisted of one container "enclosing approximately 226 grams of plant material containing marijuana." It was Officer Reyes's opinion that, because of the large amount of marijuana, because there was no paraphernalia with which to smoke it and because additional packaging material was found in the car, the marijuana was possessed for the purpose of sale.
Miranda v. Arizona (1966) 384 U.S. 436.
b. Defense evidence.
In the early morning hours of October 28, 2009, Maurice Walters was driving away from the Hollywood Park Casino when he made a left hand turn onto 107th Street from Doty. As he was driving east, Walters approached Yukon. Yukon is a "dead-end" street with a three-way stop sign. Since one cannot go straight across, Walters "pull[ed] up to the stop sign[,] stop[ped, then] pull[ed] out a little bit so [he could] see exactly what [was] coming." Walters stopped at the stop sign, "then . . . drove out slowly[.]"
The defendant, Kingsley Marlon Walters, is also known as "Maurice" Walters.
As Walters stopped at the intersection of 107th and Yukon, he believed he was alone. There were no vehicles behind him.
After he made a right turn, Walters stopped at 109th street. There is no stop sign there. There is a traffic signal and Walters stopped because "[t]he light was red." As he waited for the light to change, Walters noticed a car behind him with its headlights on. The car moved to Walters's left and slowly approached him. Walters, not realizing that the vehicle was a police car, was going to "drive off." However, the car put on its red overhead light and, when Walters realized that the car was a patrol car, he "made a move to [his] right to get . . . out of the way." He did not run the light. "[He] just moved up from the white line, [and] moved down a little bit . . . ." Walters then realized that one of the deputies in the car was telling him to pull over with his thumb. As soon as the traffic light turned green, the deputy put his lights on and Walters "just stopped."
A deputy approached Walters and told him to " 'get out [of] the car.' " Walters, who was familiar with the smell of both burnt marijuana and "plantlike" marijuana, indicated that "[t]here was no smell in [his] car." Moreover, at no time had he given the deputies permission to search his vehicle.
Walters admitted that he suspected that there was marijuana in the car, but he did not know where. "[S]omebody was showing it to [him] when [he] was in the casino. . . . [He] didn't go outside, [he] just gave [the man his] key and said, 'Put it in the car.' . . . [The man] brought [Walters's his] key back" and Walters continued to "[play] poker." When Walters left the casino, he "supposed" the marijuana was in the car. However, he "didn't check it out."
c. Rebuttal.
Deputy Payne indicated that his partner Mirandized Walters and that, after he had done so, Walters waived his Miranda rights. When Deputy Reyes then asked Walters "about the marijuana in the car[,]" Walters "had two different stories. The first story was [that] somebody left it in the car and the second story was that he bought it at the casino." Walters told the deputies that he paid $100 for the marijuana and that he intended to smoke it with his friends.
2. Procedural history.
Following a preliminary hearing, on May 7, 2010, an information was filed alleging that on or about October 28, 2009 Walters transported marijuana in violation of Health and Safety Code section 11360, subdivision (a) (count 1), and possessed marijuana for sale in violation of Health and Safety Code section 11359 (count 2). It was further alleged pursuant to the Three Strikes law (Pen. Code, §§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)) that on October 9, 2000, Walters had suffered a conviction for the serious or violent felony of aggravated assault.
On June 14, 2010, Walters filed a Pitchess motion. After holding a hearing on the matter, the trial court granted the motion with regard to "false reporting" on the part of the officers. On July 23, 2010, the trial court signed an order indicating that all information disclosed during the Pitchess hearing could "not be used for any purpose other than a court proceeding pursuant to applicable law, in accordance with Evidence Code section 1045[, subdivision] (e)."
Pitchess v. Superior Court (1974) 11 Cal.3d 531.
On June 15, 2010, Walters filed a motion to suppress evidence pursuant to Penal Code section 1538.5. Following a lengthy hearing, counsel for Walters argued that the marijuana should be suppressed because the traffic stop had been "pretextual." The trial court disagreed and denied the motion.
After denial of the motion to suppress evidence, on September 27, 2010, the People made Walters an offer of "32 months low term doubled [when] his exposure [was] four double, eight years, plus one-third the mid." The prosecutor then stated: "The offer from the People is low term doubled. The alternative offer is four years, but [Walters] would have to waive 145 days of his back time. Those are the two offers on the table. The third one is we go to trial."
Walters agreed to waive his right to a speedy trial and to have the matter tried on or before January 13, 2011. On January 11, 2011, the prosecutor indicated that the People planned "on using the defendant's priors [to impeach him] if he testifie[d]." Since Walters was disputing the truthfulness of the priors, there would also be a "priors trial." The prosecutor "believe[d] the defendant [was] going to waive his right to a jury [trial] on the priors . . . . [They were] going to do the priors trial in front of the judge . . . and then, at the conclusion of that [proceeding], start picking a jury" to try the charged offenses. The trial court then asked Walters if he would waive his right to a jury and agree to have the judge hear the evidence and determine whether he suffered the alleged prior Georgia convictions. Walters agreed to waive his right to a jury trial on the priors and evidence was then presented indicating that Walters had pleaded guilty to "[a]ggravated assault, criminal interference of government property, fleeing or attempting to allude a police officer [and] violating the Georgia Control[led] Substance Act." After multiple records pertaining to the prior convictions were provided, the prosecutor questioned the paralegal from the district attorney's office who had obtained and reviewed the records. The district attorney questioned the paralegal and determined that "all [the] records [from Georgia]" had been certified by the official custodian of court records and the deputy court clerk.
Marisela Rowles is a forensic identification specialist. She rolled Walters's fingerprints onto a Los Angeles County Sheriff's Department Scientific Services Bureau Friction Scan Examination Report. Rowles then compared the prints she had taken to those provided by the State of Georgia and determined that the print from the left index finger and the right ring finger had been made by the same person.
The prosecutor argued that he believed there were "several issues or several grounds which show[ed] . . . that this particular defendant suffered these particular convictions." The prosecutor continued: "Beyond the fingerprint match, we have the FBI number which was generated through the live scan and we have the corresponding matching of documents from the convictions from both the superior court and also the prison. [¶] Then we also have the picture which the People would ask the court to look at, and this court already noted a particular type of scar which the defendant has and the picture also appears to be of the defendant as well. [¶] So the People would submit that the evidence that has been presented is sufficient enough to prove that [Walters] suffered this prior conviction."
"Having heard the testimony of the witnesses and the arguments and reviewed the exhibits, the [trial] court [found] that the People [had] proven beyond a reasonable doubt that the defendant ha[d] suffered the prior conviction in Georgia in case number 98CR3193. That was from October 2000 as alleged in the information."
With regard to whether the prior conviction amounted to a "Strike" pursuant to the Three Strikes law, the district attorney asserted that "[w]hat the defendant was convicted of was committing an aggravated assault against a police officer with a motor vehicle. That actual assault with a motor vehicle would qualify as a strike under assault with a deadly weapon under our statute . . . ." The prosecutor continued: "The packet, which I included, [has] a current printout of their statute." In addition, it lists prior amendments similar to our prior criminal statutes, the essential elements of which have remained the same since the year 2000 when Walters suffered his conviction. The prosecutor noted that, the only thing which might be different is that "it appears from reading some of the case law [from] Georgia [that] at a certain point in time [the statute required] that [one] had to prove intent, that [one] intended to injure, whereas under our statute [one] would not have to, [one] could just prove that they did the act [portion of] the assault . . . . [¶] . . . It's just an extra element that they had to prove, which wouldn't have to be proved in California. I believe [that in] comparing the Georgia statutes[,] which the defendant was convicted of, [with] ours, [Walters's conviction] is a strike for strike purposes."
Defense counsel argued that the Georgia prior did not amount to a strike. Counsel stated: "Our thought process on [this] issue is that obviously this is a foreign prior. The record is not clear as to the facts of the . . . prior. When the facts of the foreign prior are not clear, the court is required to presume that the prior was the least offense punishable under foreign law. [¶] For example, when I took a look at the . . . Georgia statute, there [was a] simple assault [and] there [was] a misdemeanor that could be charged as an assault but could be bootstrapped up into a felony. Our position is that we really just do not have enough information here to make a determination as to whether or not what [Walters] plead guilty to in Georgia was [a strike.]" In addition, "the statute [in California] differs in a couple of ways. Our statute [indicates] that for a 245(a)[,] sub[division] (c) . . . the defendant would have to know or reasonably know that the victim is a peace officer [or] firefighter engaged in the performance of his duties. There's no such language . . . in the Georgia statute . . . . [¶] So for all of those reasons[,] we ask the court to find that . . . because we don't know about the underlying facts, [because] it's a foreign prior and . . . we don't really have the law at the time that it was committed, which was back in 2000, that the court does [not] have sufficient evidence to find that this would be a strike under California law . . . ."
The prosecutor then pointed out that "the information on the prior and [Walters's] convictions . . . was actually quite detailed. It mentioned not only his conviction—[but that] . . . it [involved a] deadly weapon . . . . Furthermore, looking into the totality of the charges . . . [Walters] plead to aggravated assault with a vehicle against a police officer; he plead to damaging government property [and] running a vehicle into a police vehicle. There was evading. So . . . the factors and the facts underlying the charge are actually in the documents which were provided."
After hearing additional arguments from both parties, the trial court denied the motion to strike the prior conviction.
Defense counsel indicated that Walters had testified at the motion to suppress evidence pursuant to Penal Code section 1538.5 and that it was counsel's understanding that the People might wish to use that testimony to impeach Walters should he testify at trial. Counsel continued: "I obviously wouldn't want them to introduce his testimony . . . for any reason and I don't think that they would do so, but I wanted to make a motion to preclude them from introducing or seeking to introduce any of his testimony [from the motion] . . . in the case in chief."
The People agreed not to use any of Walters's statements and indicated that the only evidence they were planning to introduce was that of Walters's prior convictions. These would include the "strike," a conviction for the manufacture and sale of marijuana and a 1998 battery on a custodial officer.
After conferring with his client, on the afternoon of January 12, 2011, defense counsel indicated that he believed they had reached a disposition in the matter. Walters was to enter a plea of no contest to count 1, the transportation of marijuana in violation of Health and Safety Code section 11360, subdivision (a) and, in exchange, he would be sentenced to the low term of two years in state prison, doubled to four years pursuant to the Three Strikes law. In addition, he would waive 145 days, or one-half of his presentence custody credits.
After waiving his right to a court or jury trial, his right to confront and cross-examine the witnesses testifying against him, his right to use the court's subpoena power to present any witnesses in his defense and his privilege against self-incrimination, Walters pled no contest to the transportation of marijuana in violation of Health and Safety Code section 11360, subdivision (a) and admitted having previously been convicted of aggravated assault within the meaning of the Three Strikes law (Pen. Code, §§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)).
The trial court found that Walters had "expressly, knowingly, understandingly, and intelligently waived his constitutional rights," that his "plea [had been] freely and voluntarily made with an understanding of the nature and consequences thereof, and that [there was] a factual basis for the plea." The trial court accepted the plea and adjudged the defendant guilty on his plea, then sentenced Walters to two years in state prison, doubled to four years pursuant to the Three Strikes law, and indicated that Walters had waived "50 percent of [his] back time credits."
The trial court imposed a $200 restitution fine (Pen. Code, § 1202.4, subd. (a)), a stayed $200 parole revocation restitution fine (Pen. Code, § 1202.45), a $40 court security fee (Pen. Code, § 1465.8, subd. (a)(1)), a $30 criminal conviction assessment (Gov. Code, 70373), a $50 laboratory fee (Health & Saf. Code, § 11372.5, subd. (b)) and a $150 drug program fee (Health & Saf. Code, § 11372.7, subd. (a)).
Pursuant to the plea agreement, the People moved to dismiss all the remaining charges and the trial court granted the motion.
Walters filed a timely notice of appeal and request for a certificate of probable cause on January 14, 2011.
This court appointed counsel to represent Walters on appeal on April 4, 2011.
CONTENTIONS
After examination of the record counsel filed an opening brief which raised no issues and requested this court to conduct an independent review of the record.
By notice filed May 31, 2011, the clerk of this court advised Walters to submit within 30 days any contentions, grounds of appeal or arguments he wished this court to consider. No response has been received to date.
REVIEW ON APPEAL
We have examined the entire record and are satisfied counsel has complied fully with counsel's responsibilities. (Smith v. Robbins (2000) 528 U.S. 259, 278-284; People v. Wende (1979) 25 Cal.3d 436, 443.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ALDRICH, J. We concur:
CROSKEY, Acting P. J.
KITCHING, J.