Opinion
E050307
09-30-2011
THE PEOPLE, Plaintiff and Respondent, v. DARRYL DWAYNE WATKINS, Defendant and Appellant.
Mark Yanis, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gary Brozio and William M. Wood, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super.Ct.No. RIF126750)
OPINION
APPEAL from the Superior Court of Riverside County. Paul E. Zellerbach, Judge. Affirmed.
Mark Yanis, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gary Brozio and William M. Wood, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant, Darryl Watkins, of possessing cocaine base (Health & Saf. Code, § 11350, subd. (a)) and resisting/delaying an officer (Pen. Code, § 148, subd. (a)(1)). In bifurcated proceedings, he admitted having suffered four prior convictions for which he served prison sentences (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 and appeals, claiming the pleadings were constructively amended, which was improper, the jury was incorrectly instructed, his motion to dismiss his strikes should have been granted and his sentence constitutes cruel and unusual punishment. We reject his contentions and affirm.
FACTS
On October 27, 2005, defendant took off on his bike after a police officer tried to stop him for riding it on the sidewalk. Defendant eventually stopped and was arrested. The arresting officer searched defendant and found nothing, although a glass pipe for smoking controlled substances was found near him. While defendant was being booked into jail on a parole hold, a jail deputy discovered cocaine base wrapped in plastic in defendant's jacket pocket. More cocaine, burned residue and pieces of Brillo pad were found in the pants defendant had been wearing that night more than a year later during a trial which resulted in a hung jury.
ISSUES AND DISCUSSION
1. "Constructive" Amendment of Pleading
At the preliminary hearing on November 15, 2005, the arresting officer testified that a .295 gram rock of what the Department of Justice later concluded was cocaine base was found in defendant's jacket pocket while he was being booked into jail for resisting/obstructing an officer. Defendant went to trial for possession of cocaine base on November 15, 2006. On November 17, the courtroom bailiff was folding up the pants defendant had been wearing when he was arrested and booked and a substance that was later determined to be cocaine fell out of the pants. This trial resulted in a hung jury on November 22, 2006. On November 5, 2007, the People listed the courtroom bailiff as an intended witness in the upcoming retrial. On November 5, during a hearing on motions in limine for the upcoming retrial, defense counsel acknowledged being aware of another name that appeared on that list, thus suggesting that he had read it. While admonishing trial counsel not to refer, in the presence of the jury, to the prior trial (which had resulted in the mistrial) as a trial, the court mentioned the incident during which what was later determined to be cocaine fell out of defendant's pants while the courtroom bailiff was folding them. Upon questioning by the court, the People stated their intent to present "that evidence" during its case in chief. The trial court reiterated that when "those witnesses" were called to testify, they were to refer to the prior trial as a "'prior court hearing.'" Defense counsel said nothing. A transcription of the People's opening statement, which was delivered November 13, 2007, is not part of the record before this court.
On November 14, 2007, the courtroom bailiff testified about the cocaine falling out of defendant's pants during the previous trial. On November 15, the deputy district attorney who had been the prosecutor during the previous trial also testified for the prosecution about this incident. Defense counsel did not seek to exclude the testimony of either witness, nor did he seek a continuance of trial. On November 19, defense counsel from the previous trial testified about this incident as a defense witness. The following day, after the trial was closed to evidence, both parties requested the unanimity instruction. When the trial court asked the parties why they had made this request, defense counsel said, "[T]here might be two acts with respect to [possessing cocaine base] if . . . some [jurors] . . . rely on the dope that was supposedly found in the courtroom, even though it's not a useable quantity, at .01, or the . . . dope that was supposedly found in the defendant's pocket at the [jail]." The prosecutor stated that she was pursuing two theories of possession, i.e., possession of the cocaine base found in defendant's jacket pocket and the cocaine that was in his pants pocket. The prosecutor disagreed with the trial court that there had been no testimony that the amount found in the pants was a useable amount. Defense counsel interjected that there were two lines of authority—one saying the quantity had to be enough to get the consumer high and the other saying it did not. The trial court disagreed with this, saying the test was whether the amount was "capable of being manipulated." Defense counsel added that there was "another problem" in that what came out of defendant's pants included charred residue,which, with the cocaine, weighed .01 grams and it was unclear how much of this was cocaine. Therefore, he argued, the prosecution had not sustained its burden of showing that what came out of defendant's pants was a useable quantity of cocaine. The prosecutor countered that there was evidence that the charred residue constituted cocaine base, and the .01 was capable of being manipulated because it had been by the Department of Justice when they analyzed it. The trial court agreed that an expert witness had testified that the charred residue could be used to get high. The trial court concluded that the parties could argue to the jury whether what came out of defendant's pants was a useable amount. The court said it would give the unanimity instruction, as requested by both parties, because the People were alleging that defendant's possession of either the cocaine base found in his jacket or in his pants constituted the charged crime. Defense counsel said nothing further.
Defense counsel said that it also included a piece of Brillo pad, however, the prosecutor pointed out that the .01 gram amount that the Department of Justice analyzed did not include the piece of pad.
Defendant now contends that his right to notice of the charges against him was violated by the trial court instructing the jury, pursuant to his request, that it could use the cocaine base from either his jacket or his pants to convict him. He asserts that this constituted a constructive amendment of the information, which was not supported by evidence adduced at the preliminary hearing, which, as we have stated, took place before the cocaine base from defendant's pants was discovered. However, by requesting the instruction, defendant forfeited any objection he had on this basis (People v. Kipp (2001) 26 Cal.4th 1100, 1131), leaving only his argument that while either amount could constitute the crime, there was insufficient evidence that the amount coming out of his pants was a useable quantity.
We do not consider defendant's post conviction motion for a new trial as a timely objection to what he asserts was the constructive amendment of the information.
We do not agree with the People that defendant's failure to object to the introduction of evidence about the cocaine base coming from his pants or his failure to request a continuance in light of it constitutes a forfeiture of his right to notice. This is so because the record does not make it clear until he, and, more importantly, the prosecutor, requested the unanimity instruction, that the charge was going to based on his possession of either amount and not on his possession of both amounts together.
Defendant contends that his trial counsel was incompetent for requesting the instruction and, thereby, forfeiting his lack of notice argument. First, there is a tactical reason for the request which brings it out of the realm of potential incompetence. (People v. Fosselman (1983) 33 Cal.3d 572, 581, 582.) For those jurors who might have convicted defendant solely on the basis of the cocaine base coming out of his pants, the defense had two good arguments which it could have presented to the jury. The first was that it did not constitute a useable amount. The second, which the defense actually did present to the jury, was that it is hard to believe the cocaine base existed in the first place, having not been discovered until the time of the first trial. This also fed into the same argument as to the cocaine base found in defendant's jacket, which had not been discovered by the officer in the field who searched him, but at the jail. Even if there could have been no tactical reason for counsel's request, we cannot conclude that he was prejudicially incompetent, unless there is a reasonable probability that, but for counsel's actions or failure to act, the result of the proceeding would have been different. (Strickland v. Washington (1984) 466 U.S. 668, 693, 694.) Had defense counsel not requested the instruction, we doubt the trial court would not have given it anyway, due to the prosecution's either-or-theory of guilt. If defendant alleges that he should have objected all along to the introduction of any evidence concerning this cocaine base, he would have met with certain defeat, as it was relevant to his possession of the cocaine base in his jacket, a matter which he concedes in his reply brief. Even if defense counsel had managed to exclude evidence of the cocaine base coming from his pants, the evidence of his possession of the cocaine base in his jacket was sufficiently strong that there is no reasonable probability he would not have been convicted of the charged offense.
2. Instructions
In addressing jury instruction issues, our review is de novo, and we consider the instructions as a whole. (People v. Posey (2004) 32 Cal.4th 193, 218; People v. Yoder (1979) 100 Cal.App.3d 333, 338.)
As part of the reasonable doubt instruction, the jury was told, "Whenever I tell you that the People must prove something, I mean they must prove it beyond a reasonable doubt." The jury was told as to the charged possession, "To prove that the defendant is guilty of this crime, the People must prove that: [¶] One, the defendant possessed a controlled substance; [¶] Two, the defendant knew of its presence; [¶] Three, the defendant knew of the substance's nature or character as a controlled substance; [¶] Four, the controlled substance was cocaine base; and, [¶] Five, the controlled substance was in a usable amount." In connection with the charged resisting/delaying an officer, the jury was told, "To prove that the defendant is guilty of this crime, the People must prove that: [¶] One, [the arresting officer] was a peace officer, lawfully performing or attempting to perform his duties as a peace officer; [¶] Two, the defendant willfully resisted or delayed [the officer] in the performance or attempted performance of those duties; and, [¶] Three, when the defendant acted, he knew, or reasonably should have known, that [the officer] was a peace officer performing or attempting to perform his duties."
The jury was also told, in connection with the instruction on circumstantial evidence, "Before you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt."
Defendant now claims that both his convictions must be reversed because the jury was not told that "it must find 'each element' of the offense to be proven beyond a reasonable doubt before reaching a guilty verdict." However, as the above cited instructions clearly state, the jury was so informed. We disagree with defendant's characterization of the first above-cited instruction as vague or that it somehow refers to "elements as a whole and not each element individually." The instruction could not be more clear—whatever the People were required to prove, and the instructions given required them to prove each element of the charged offenses, they were required to prove beyond a reasonable doubt. (People v. Riley (2010) 185 Cal.App.4th 754, 768, 769, [Fourth Dist. Div. One]; People v. Ramos (2008) 163 Cal.App.4th 1082, 1088-1089.) 3. Denial of Defendant's Motion to Dismiss Three of his Five Strike Priors
During the hearing on defendant's motion to dismiss his 1983, 1986 and 1989 strike priors (People v. Superior Court (Romero) (1996) 13 Cal.4th 497), the trial court said, "I have . . . [defendant's] record right here. It's just a revolving door for him. . . . [¶] . . . [¶] . . . 1993 . . . was the last prison sentence he received. . . . He received a 16-year . . . sentence . . . You would think that would wake somebody up. But I guess with a 26-year history of continually violating the laws, with six separate prison commitments during that 26-year time frame, and now we have this case . . . . We learn about people by their prior conduct or actions. And here I have got 26 years of criminal behavior. And I don't see what's changed. [¶] . . . [E]very time he has been on parole, his parole has been revoked for subsequent violations . . . . [¶] . . . I have trouble . . . thinking that . . . if I cut him a break this time that he is not going to reoffend." "[Defendant] has one of the worst criminal histories I have seen. Granted, he doesn't have crimes of violence. . . . But he has three first-degree burglary convictions, went to prison for each one of those. Has a second-degree burglary conviction, went to prison for that. And he has his latest felony conviction, which is an attempted first-degree burglary in 1993. And he was sentenced to 16 years in prison . . . . [¶] . . . [¶] . . . [I]f someone is sentenced to 16 years in prison when they get out, you would think if they haven't gotten the message prior to that in the previous 20 years, or the previous five times they have been to prison, as [defendant] has . . . he is 47 years old. We are not dealing with a young kid . . . who just hasn't gotten the message yet." " . . . [Defendant] got probation on a felony case in 1981, violated probation, then went to prison in '83 for the first time . . . . [¶] Then [he] got out of prison in '83, and pick[ed] up [his] first first-degree burglary conviction, go back to prison. [He was] paroled. [He] violate[d] parole. [He was] returned back to [prison] for that violation. [¶] In 1986, [he] pick[ed] up [his] second first-degree burglary conviction. [He goes] back to prison. Paroled. [¶] In '88 [he] violate[d] parole. In '89 [he went] back to prison to finish out that term. In 1988 [defendant] pick[ed] up a second-degree burglary conviction. [He went] back to prison. [¶] . . . [He] got probation in that case. Violated . . . probation. [He went] back to prison. [¶] [In] 1989, [he] pick[ed] up [his] third first-degree burglary conviction. [He went] to prison for seven years. [¶] Then in 1993, [he] pick[ed] up the attempted first-degree burglary conviction and [was] sentenced to 16 years in prison." "[I]n looking at the Romero case and People v. Williams, and the other cases that talk about the three-strikes laws, and what the [c]ourt's responsibility is, and what the [c]ourt is supposed to take into consideration, I just cannot find sufficient factors to overcome [defendant's] terrible record over the past 26 years. [¶] . . . [¶] I just cannot find that [he is] not an individual that . . . does not come within the three-strikes law."
In the defendant's written motion and the prosecutor's response, both ignored a second strike conviction in 1989. So did the probation officer. No doubt, as a result, the trial court also mistakenly believed that there were a total of four strikes, when, in fact, there were five. Of course, even if the trial court had dismissed three of defendant's five strike priors, he would still have been sentenced to 25 years to life. However, since neither party seems phased by this reality, we will address defendant's contention as though granting his motion would have placed him in a different position.
People v. Williams (1998) 17 Cal.4th 148.
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Defendant here asserts that the trial court abused its discretion in denying his motion to dismiss three of his strike priors. Defendant acknowledges that he has the burden of showing that his circumstances are extraordinary and the trial court's ruling is so irrational or arbitrary that no reasonable person could agree with it. (People v. Carmony (2004) 33 Cal. 4th 367, 377, 378.) Defendant points out that his strikes are not recent and his current offense is "non-aggravated." Making this assertion is not tantamount to defendant carrying his burden of showing that his circumstances are extraordinary and the trial court's ruling was irrational or arbitrary. Defendant's reliance on People v. Garcia (1999) 20 Cal.4th 490 (Garcia), in which the California Supreme Court upheld the trial court's dismissal of five strike priors, is misplaced. Therein, the defendant's strikes "were for five burglaries . . . that took place on separate occasions during a short crime spree [and for which defendant served a single prison sentence]. . . . [¶] . . . [D]efendant had a history of burglarizing homes and then trading stolen property for drugs. . . . [D]efendant's girlfriend described defendant's difficult life, saying he grew up in foster home and was addicted to heroin by the age of 12. . . . [D]efendant expressed remorse about the burglaries and asked for forgiveness. [¶] . . . [¶] . . . [D]efendant had cooperated with the police both in 1991 and when they arrested him for the current [three burglaries]." (Id. at pp. 493-494.) The differences between the facts in Garcia and those here are obvious.
The portion of Garcia to which defendant calls our attention is not, as defendant asserts, a prohibition on a trial court basing its refusal to dismiss strikes on a defendant's abysmal criminal record. Rather, it was a statement that despite the overarching purpose of the Three Strikes Law, i.e., to ensure longer sentences, the trial court could not reject every request for dismissal on the basis that the resulting sentence would be shorter. (Garcia, supra, 20 Cal.4th at pp. 501-502.)
4. Cruel and Unusual Punishment
Citing one California appellate decision, defendant argues that his sentence of 25 years to life is cruel and unusual. In People v. Carmony (2005) 127 Cal.App.4th 1066, 1073 (Carmony) the defendant had been convicted in 1983 of forcible copulation of a minor under the age of 14. In 1990 and 1997, he had been convicted of failing to register as a sex offender. (Ibid.) He committed the current offense when he failed to update his registration on his birthday, although he had registered a month before. (Id. at p. 1071.) His strike priors were two aggravated assaults which defendant had committed against two different girlfriends in 1992. He had not committed other serious or violent crimes since that time. (Id. at p. 1080.) "[He] had recently married, maintained a residence, participated in Alcoholics Anonymous, sought job training and placement, and was employed." (Id. at p. 1073.) He appealed his 25-years-to-life sentence claiming that "the application of the Three Strikes law to the offense of failing to duplicate his registration as a sex offender violates the state and federal prohibitions against cruel and unusual punishment . . . " (Id. at p. 1072.) The Court of Appeal concluded, "It is a rare case that violates the prohibition against cruel and/or unusual punishment. However, there must be a bottom to that well. If the constitutional prohibition is to have a meaningful application it must prohibit the imposition of a recidivist penalty based on an offense that is no more than a harmless technical violation of regulatory law. [¶] . . . [R]ecidivism . . . may not serve as the reason for imposing increased punishment where the predicate offense serves no rational purpose of the state." (Id. at p. 1072, italics added.)
The differences between Carmony and the instant case are obvious. The record before this court does not demonstrate that defendant was married, maintained a residence, participated in any program of recovery (in fact, he denied drug usage) or was employed. His offense was not a harmless technical violation of a regulatory law. Defendant's serious criminal history did not stop seven years before his current offense. Defendant does not allege here that 25 years to life is a cruel and unusual punishment for anyone convicted of possessing cocaine base.
In addition to the strikes, which the trial court addressed when denying his motion to dismiss, defendant was convicted of two counts of receiving stolen property two months after his first conviction. In between his convictions of three first degree burglaries and one attempted first degree burglary, he committed a second degree burglary. He committed these offenses while on parole and a year after having been released from prison on a prior parole revocation. A long history of recidivism, as well as the seriousness of the current offense, are proper factors in determining whether a sentence is cruel and unusual. (Ewing v. California (2003) 538 U.S. 11, 29.) We cannot conclude that defendant's was.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P.J.
We concur:
McKINSTER
J.
MILLER
J.