Opinion
E043979
2-26-2009
THE PEOPLE, Plaintiff and Respondent, v. JESUS FRAUSTO, JR., Defendant and Appellant.
Jean Ballantine, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Lilia E. Garcia and Raquel M. Gonzalez, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published in Official Reports
I. INTRODUCTION
Defendant was charged and convicted by a jury of a single count of possessing methamphetamine for sale in violation of Health and Safety Code section 11378. Thereafter, defendant admitted additional allegations that he had one strike prior, five prison priors, and three prior convictions of possessing a controlled substance for sale in 1996, 1998, and 2000. Defendant was sentenced to 20 years in prison, including the upper term of three years on his current conviction of possessing methamphetamine for sale.
On this appeal, defendant claims the trial court erroneously admitted evidence, in violation of Evidence Code sections 1101, subdivision (a) and 352, that he had four prior arrests and convictions for possessing controlled substances for sale. We conclude the prior crimes evidence was properly admitted to show defendant had a common plan or scheme for selling methamphetamine and that he specifically intended to sell the methamphetamine in question, and the prior crimes evidence was more probative than prejudicial on these issues. (§ § 1101, subd. (b), 352.)
All further statutory references are to the Evidence Code unless otherwise indicated.
Defendant further contends the prosecutor committed misconduct or prejudicially erred in making improper statements to the jury during closing arguments. We conclude the prosecutors statements to the jury were proper.
Lastly, defendant raises two claims of sentencing error. He claims the trial court (1) abused its discretion in denying his motion to strike his prior strike conviction, five prison priors, and multiple conviction enhancements for sentencing purposes, and (2) violated both the dual use doctrine and his constitutional right to a jury trial in imposing the upper term sentence on his current conviction for possessing methamphetamine for sale. We find each of these claims without merit.
Accordingly, we affirm the judgment.
II. BACKGROUND
A. Prosecution Evidence
1. Defendants Current Offense
On January 11, 2007, law enforcement officers conducted a sweep of a high crime area in Hemet, including an apartment defendant shared with his girlfriend. In defendants pants pocket, officers found a black plastic bag containing five smaller baggies, each of which contained a white crystal-like substance which tested positive for methamphetamine. A sixth cellophane cigarette wrapper containing methamphetamine was found in a garbage can in the apartment. All of the methamphetamine weighed 5.4 grams including packaging and 4.7 grams without packaging.
Two cell phones and $400 in cash, mostly in $20 bills, were found on defendants person. A police scanner, which was turned on and tuned into the Hemet police station, was on the kitchen table. No "user paraphernalia" was found and defendant did not appear to be under the influence of methamphetamine. No foot traffic was seen going in or out of defendants apartment.
The arresting officer, Deputy Ken Thurm, and the prosecutions drug expert, Deputy Alfredo Medina, each opined that defendant possessed the methamphetamine for sale, based on the totality of the circumstances. According to Deputy Thurm, the methamphetamine could have been divided into single-gram doses or packages with a street value of $20 each. In addition, defendant did not appear to be under the influence of methamphetamine at the time of his arrest and no user paraphernalia was found in his apartment or on his person.
Defendant waived his Miranda rights and gave a recorded statement in which he claimed he purchased the methamphetamine for his personal use. He said he paid a friend $150 for an "eightball," or approximately three and one-half grams of methamphetamine, but he did not know exactly how much of the drug he had purchased. He said he did not often use methamphetamine but had snorted one line on the day of his arrest and four lines on the previous day.
Miranda v. Arizona (1966) 384 U.S. 436.
Under cross-examination by defense counsel, Deputy Medina acknowledged that $150 was a reasonable price for an "eightball" in the Hemet area at the time. He also acknowledged there was a "Costco theory" of drug purchasing, which means a buyer will get a discount for purchasing a large quantity of drugs and the discount may apply even if the drugs have already been broken into smaller packages.
2. Prior Crimes Evidence
Over defendants objection, the prosecution was allowed to introduce evidence, pursuant to section 1101, subdivision (b), that defendant had three prior arrests and convictions for possessing methamphetamine for sale and one prior arrest and conviction for transporting marijuana for sale in 1996, 1998, 2000, and 2004, respectively. The arresting officers testified concerning the circumstances of the prior arrests.
On November 23, 1996, Hemet Police Officer Randy Young responded to a complaint about excessive noise and found defendant walking to his apartment from a parked car. Inside defendants car, officers found three small bags of marijuana, two bags of methamphetamine weighing a total of 62.7 grams, two hypodermic syringes, $368 in cash, mostly in $20 bills, binoculars, a night vision monocular, a police scanner, two cell phones, a scale, and a pager. As a result of this incident, defendant pled guilty to possessing methamphetamine for sale.
On April 7, 1998, Riverside County Sheriffs Deputy Gregory Bonaime was on a task force of officers that searched defendants person, home, and vehicle in Hemet. Officers found 12 and one-half grams of methamphetamine in two plastic bags, approximately $2,200 in cash, mostly in $20 bills, a police scanner, a digital scale, a pager, a cell phone, and a syringe. As a result of this incident, defendant was convicted of possessing methamphetamine for sale.
On July 9, 2000, Sheriffs Sergeant Todd Pauling conducted a traffic stop of defendant, during which defendant appeared nervous and repeatedly placed his hands in his pockets despite the officers request to keep his hands in sight. Defendant consented to a patdown search but then ran from the officer and fell into a ditch. As defendant was being handcuffed, the officer found a leather pouch on the ground near defendant. The pouch contained a syringe and 24 grams of methamphetamine in seven separate packages. In addition, $885 in small denomination bills were found on defendants person, and a digital scale and cell phone were found in his vehicle. As a result of this incident, defendant was convicted of possessing methamphetamine for sale.
On May 20, 2004, Hemet Police Officer Eddie Pust conducted a traffic stop of defendant. Inside defendants vehicle, the officer found a black pouch containing 96 grams, or approximately three ounces, of marijuana, six unused baggies, and a pay/owe sheet with eight names on it. Defendant had $300 in cash on his person. Defendant told Officer Pust the pay/owe sheet was old and he "used to sell." No user paraphernalia was found, however, and defendant did not appear to be under the influence. As a result of this incident, defendant pled guilty to possessing and transporting a controlled substance for sale.
Immediately after each officer testified, the trial court instructed the jury it could consider the officers testimony for the "limited purpose of determining whether or not the act[s] attributed to [defendant] at that time are evidence [of his] motive or knowledge or intent or absence of mistake or common scheme of plan relative to methamphetamine, but [the jury could not] use such testimony to show or establish that [defendant] had a disposition or is predisposed to commit the [charged crime of possessing methamphetamine for sale]." In lieu of introducing redacted Penal Code section 969b packets to prove defendants four prior convictions, the parties stipulated that defendant was convicted of possessing a controlled substance for sale in 1996, 1998, 2000, and 2004.
B. Defense Evidence
Defendant testified he possessed the 4.7 grams of methamphetamine for his personal use and he did not intend to sell any of it. He had recently purchased five or six individually wrapped packages from a friend who needed some cash. He bought everything his friend had for $150 and thought it was approximately an "eightball," or three and one-half grams. He believed he could have used all of the methamphetamine he purchased within one day and definitely would have used it within four days.
Defendant claimed he had been using drugs since he was in the army in Germany in 1977. He tended to be a binge user and had overdosed five times. Although he had not been using methamphetamine for a while prior to his most recent arrest, he had begun using again because he had some money and was mourning his fathers death. Injecting or "slamming" was his preferred means of ingesting methamphetamine. He had a high tolerance for the drug, and had slammed as much as three-quarters of a gram on one occasion during the month prior to his arrest. On the day of his arrest he had injected methamphetamine and smoked marijuana. He also snorted some methamphetamine only five minutes before the police arrived. He was using prescription clonidine to slow his heart rate.
Defendant admitted he pled guilty to possessing methamphetamine for sale following his 1996, 1998, and 2000 arrests, because on these occasions he was dealing the drug. He stopped dealing after his July 9, 2000, arrest. When he was dealing, he used a digital scale to separate the drugs into individual packages, "fronted" the drugs to his customers, and used pay/owe sheets. This time, however, he was not dealing; he was just using the drug in the privacy of his home. At the time of his arrest his hypodermic needle and methamphetamine pipe were hidden inside his portable stereo and the police did not find them.
Defense investigator Roger LeMasters took photographs of defendant in jail following his January 2007 arrest. The photographs showed injection marks on defendants arms, some fresh and some older. The prosecutor questioned Mr. LeMasters concerning whether he would turn over to the prosecution any evidence he found that was harmful to the defense. Mr. LeMasters responded that his duty was to search out and find the truth and turn it over to defense counsel.
Defendant had $446.80 in cash at the time of his January 2007 arrest. He claimed he worked for Katie Martin, who managed his apartment building and several other buildings in the neighborhood, refurbishing apartments to get them ready to rent. He also worked side jobs for another maintenance man. Just before his arrest, Ms. Martin paid him $475 in cash to purchase supplies.
Ms. Martin testified she owned a police scanner which she used to track problems going on at the buildings she manages and to assist in making evictions for illegal conduct, including drug sales. She knew defendant also had a police scanner and she relied on defendant to "back her up" if she felt she needed a male presence in the neighborhood.
Defendants brother Joe Frausto testified he saw defendant use drugs during the years following defendants discharge from the army in 1977. The family tried, without success, to get defendant into rehabilitation programs. On one occasion, Joe Frausto saw defendant inject methamphetamine and found the needles he had used. Defendant did not want his brother to know he was injecting drugs, and the two men got into a fight about it. Joe Frausto had two prior felony convictions.
III. DISCUSSION
A. The Prior Crimes Evidence Was Properly Admitted
Defendant claims the evidence concerning his four prior arrests and convictions for possessing controlled substances for sale was erroneously admitted in violation of section 1101, subdivision (a), section 352, and his due process right to a fair trial. We conclude the evidence was properly admitted to show that defendant intended to sell the methamphetamine found in his possession in January 2007 and that he had a common scheme or plan for selling drugs and was therefore guilty of the charged offense of possessing methamphetamine for sale.
Before trial, the prosecutor moved to admit evidence of defendants four prior convictions on the grounds the evidence was admissible to show intent, motive, lack of mistake or accident, knowledge, and common plan or scheme. (§ 1101, subd. (b).) Defense counsel argued the evidence was cumulative and substantially more prejudicial than probative. (§ 352.) The trial court ruled the evidence was "relevant, material and necessary" to show a "continuing course of conduct" on the part of defendant, as well as "intent, knowledge, scheme, [and] absence of mistake."
Prior crimes evidence is inadmissible to show that a defendant had a character trait or disposition to commit a charged crime (§ 1101, subd. (a)), but may be admissible "when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident . . .) . . . ." (§ 1101, subd. (b); People v. Whisenhunt (2008) 44 Cal.4th 174, 203.) "In determining whether evidence of uncharged misconduct [or prior crimes] is relevant to demonstrate a common design or plan, it is useful to distinguish the nature and degree of similarity (between uncharged misconduct and the charged offense) required in order to establish a common design or plan, from the degree of similarity necessary to prove intent or identity." (People v. Ewoldt (1994) 7 Cal.4th 380, 402, fn. omitted (Ewoldt).)
It is settled that "[t]he least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent. [Citation.] `[T]he recurrence of a similar result . . . tends (increasingly with each instance) to negative accident or inadvertence or self-defense or good faith or other innocent mental state, and tends to establish (provisionally, at least, though not certainly) the presence of the normal, i.e., criminal, intent accompanying such an act . . . . [Citation.] In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant `"probably harbor[ed] the same intent in each instance." [Citations.] [Citation.]" (Ewoldt, supra, 7 Cal.4th at p. 402.)
"A greater degree of similarity [between the prior crimes evidence and charged crime] is required in order to prove the existence of a common design or plan." (Ewoldt, supra, 7 Cal.4th at p. 402.) The prior crimes evidence "must demonstrate `not merely a similarity in the results [to the charged crime], but such a concurrence of common features that the various acts [that is, the prior and charged crimes] are naturally to be explained as caused by a general plan of which they are the individual manifestations. [Citation.]" (Ibid.) "Unlike evidence of uncharged acts used to prove identity, the plan need not be unusual or distinctive; it need only exist to support the inference that the defendant employed that plan in committing the charged offense." (Id. at p. 403.) "For this purpose, `the common features must indicate the existence of a plan rather than a series of similar spontaneous acts, but the plan thus revealed need not be distinctive or unusual. [Citation.]" (People v. Kipp (1998) 18 Cal.4th 349, 371.)
Here, the prior crimes evidence was relevant to show that defendant intended to sell the methamphetamine that was found in his possession in January 2007, and that he had a common scheme or plan for selling methamphetamine at the time of his prior and current arrests. The circumstances surrounding defendants prior and current arrests for possessing a controlled substance for sale were strikingly similar. In each instance, defendant possessed large quantities of methamphetamine or marijuana, which were divisible into smaller packages for sale, together with other indicia of sales, including digital scales, baggies, police scanners, cell phones, pagers, pay/owe sheets, and substantial amounts of cash in small denominations.
In addition, the prior crimes evidence had substantial probative value and was more probative than prejudicial. (§ 352; Ewoldt, supra, 7 Cal.4th at pp. 404-405 [prior crimes evidence must have substantial probative value and not be more prejudicial than probative]; People v. Gionis (1995) 9 Cal.4th 1196, 1214 [prejudice referred to in § 352 "applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues"].) The strikingly similar circumstances surrounding defendants prior and current arrests strongly indicated he possessed the methamphetamine found in January 2007 for sale. And, although the prior crimes was to some extent prejudicial, it was no more prejudicial than the evidence concerning his January 2007 arrest. (Ewoldt, supra, at p. 405 [potential prejudice is lessened when prior crimes evidence is "no more inflammatory" than evidence concerning charged offenses].)
Defendant maintains the admission of the prior crimes evidence violated section 1101, subdivision (a) because the prosecutor used it to argue that defendant was a "drug dealer" or had a propensity for dealing drugs. This is a non sequitur. If, as defendant claims, the prosecutor "misused" the prior crimes evidence to argue that defendant had a propensity to commit the charged crimes, it does not follow that the evidence was inadmissible to show intent and common scheme or plan. Furthermore, the trial court instructed the jury not to consider the prior crimes evidence to infer that defendant had a propensity to commit the charged crime. Defendants claim that the prosecutor "misused" the prior crimes evidence is properly understood as part of his separate claim of prosecutorial error, which we address below.
B. There Was No Prosecutorial Error
Defendant next claims the prosecutor "engaged in numerous acts of misconduct," during his closing arguments to the jury. More specifically, he argues that the prosecutor (1) improperly used the prior crimes evidence to "label him a drug dealer and junkie with a propensity to commit drug sales offenses"; (2) personally attacked the character of defendant and his brother Joe Frausto; (3) vouched for prosecution witnesses and the prosecutions decision to charge defendant with possession for sale; (4) impugned the integrity of the defense team; (5) implied there was additional evidence harmful to the defense which the jury had not heard; (6) misstated the evidence and the law; and (7) appealed to the jurors passions and prejudice by implying they could protect the community with their verdict. We find no prosecutorial error. As we explain, defendants claims of prosecutorial error either greatly exaggerate the prosecutors closing remarks or take them out of context.
Defendant also petitions this court for a writ of habeas corpus on the ground his trial counsel was ineffective for failing to object to the prosecutors remarks. By separate order, we summarily deny defendants habeas petition.
1. Applicable Law
A prosecutor who uses deceptive or reprehensible methods to persuade the jury commits misconduct, and such actions require reversal under the federal Constitution when they infect the trial with such "unfairness as to make the resulting conviction a denial of due process." (Donnelly v. DeChristoforo (1974) 416 U.S. 637, 643.) "Under state law, a prosecutor who uses deceptive or reprehensible methods commits misconduct even when those actions do not result in a fundamentally unfair trial." (People v. Cook (2006) 39 Cal.4th 566, 606.)
2. Analysis
(a) Alleged Misuse of Prior Crimes Evidence
Defendant argues that the prosecutor improperly used the prior crimes evidence to argue that defendant had a propensity to be a drug dealer. (§ 1101, subd. (a) [barring evidence of specific instances of conduct to prove conduct on specific occasion].) Defendant points out that, during rebuttal closing argument, the prosecutor said: "[Defendant] is a drug dealer. He spills poison into the streets of our community. Hes done it on prior occasions. And he did it in this case. . . . He is a drug dealer, and he poisons our community with that stuff."
Defendant takes the prosecutors remarks out of the context in which they were made, but when viewed in context it is not reasonably likely the jury understood the remarks as urging or allowing them to use the prior crimes evidence as propensity evidence. (Boyde v. California (1990) 494 U.S. 370, 385 [arguments of counsel must be judged in context]; People v. Ochoa (1998) 19 Cal.4th 353, 427 ["`when the claim [of prosecutorial error] focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion"].)
First, when he made the quoted remarks, the prosecutor was responding to defense counsels closing argument that defendant possessed the 4.7 grams of methamphetamine for personal use and not for sale. In the same vein in which he called defendant a "drug dealer" who "poisons our community with that stuff," the prosecutor told the jury defendant was "failing to take responsibility" for possessing the methamphetamine for sale, and told the jury there were "people in our community" who are addicted to alcohol or drugs and who are "only doing damage to themselves and their families" but "once that person decides to damage the community and spill that poison into the streets and sell it to the streets, then it goes beyond that persons problem." Thus, properly understood, the prosecutors comments were directed at rebutting the defense claim that defendant was guilty of simple possession, not possession for sale.
Furthermore, in his initial closing argument, the prosecutor told the jury it could use the prior crimes evidence for the "limited purpose[s]" of inferring that defendant knew the substance he possessed was methamphetamine, had a common plan or scheme for selling it, and specifically intended to sell it. This effectively reminded the jurors that, as the trial court had instructed, they could not use the prior crimes evidence as propensity evidence. And in his closing argument, defense counsel told the jury it could not use the prior crimes evidence to infer that defendant was "dealing this time," and reread the limiting instruction the trial court gave following the testimony of the officers who testified concerning defendants arrests and convictions for possessing methamphetamine for sale in 1996, 1998, and 2000, and his arrest and conviction for possessing and transporting marijuana for sale in 2004.
In sum, in view of the overall context and content of the prosecutors and defense counsels closing arguments and the courts instructions, it is not reasonably likely that the jury understood the prosecutors rebuttal remarks as urging or allowing them to disregard the courts limiting instruction and use the prior crimes evidence to infer that, because defendant had prior convictions for possessing drugs for sale, he was guilty of the same crime on the instant occasion.
(b) Alleged Personal Attacks on Defendant and Joe Frausto; Vouching for Prosecution Witnesses and Charge; Appeal to Passions and Prejudices
Defendant further argues that the prosecutor improperly appealed to the passions and prejudices of the jury and improperly vouched for the prosecutions witnesses. In support of this claim, he claims the prosecutor called defendant a "junkie" and his brother Joe Frausto a "two-time felon," argued that one side or the other was not being truthful, and that the officers who testified against defendant would not lie because they would not risk losing their jobs. He also claims the prosecutor improperly vouched for the strength of its own case by arguing that if this were a "weak sales case" then defendant would have been charged with simple possession, not possession for sale.
Again, defendant takes the prosecutors remarks out of context. In the portion of the prosecutors argument in which defendant complains the prosecutor simply maligned him for being a "junkie," the prosecutor was arguing that defendant was a heavy user of methamphetamine as well as a dealer of the drug. He urged the jury not to be "fooled" by defendants claim that he possessed the 4.7 grams of methamphetamine for his personal use, and argued that, although the defendant was a heavy user of the methamphetamine, the evidence showed he possessed the 4.7 grams for sale. He said, "Dont be fooled. Hes a junkie, yes. He is a dealer, yes." This was proper argument.
Similarly, the prosecutors reference to defendants brother Joe Frausto as a "two-time felon" was both accurate and appropriate in the context in which the reference was made. It was not a gratuitous attack on Joe Fraustos character, as defendant suggests. The prosecutor told the jury it could consider that a witness has been convicted of a felony "only for the purpose of determining the believability of that witness," and later explained it was appropriate to consider Joe Fraustos two felony convictions on the issue of his credibility because the convictions were recent and Joe Frausto had only recently been released from prison. This, too, was proper argument.
Defendants claim that the prosecutor vouched for the veracity of the officers who testified for the prosecution and the strength of the prosecutions case also lacks merit. (Cf. People v. Alvarado (2006) 141 Cal.App.4th 1577, 1580-1581 [prosecutor committed prejudicial misconduct by personally vouching for veracity of a prosecution witness and the truth of the charge against the defendant].) Here, the prosecutor argued the defense theory that defendant possessed the 4.7 grams of methamphetamine for his personal use was neither truthful nor reasonable. In this regard, he told the jury: "All testimony cant be true. One side or the other is not being truthful." He then asked the jury to consider any reasons or biases each witness may have for testifying as they did, and argued the defense witnesses were biased because they were either friends or family members of defendant.
The prosecutor then told the jury: "You got to think of biases. Okay. And would an experienced police officer risk losing their job over or being penalized or sanctioned for getting up here and lying to you? Over one case? Because that would be the only reason. I mean, why would a police officer lie?" This was proper argument. The argument did not "vouch" for the officers veracity by placing the prestige of the prosecutors office behind the officers testimony. Instead, it simply urged the jury to consider that the officers had no reason to lie on the witness stand. (Cf. People v. Woods (2006) 146 Cal.App.4th 106, 114-115, 118-119 [prosecutorial error to vouch for officers testimony based on matters outside the record].)
Defendant also points out that the prosecutor at one point described the officers who testified as "patrolling the streets, protecting the community." This was not an appeal to the jurys passions and prejudices as defendant claims. Instead, it was an appropriate reference to the credibility of the officers who testified as expert witnesses, namely, Deputies Thurm and Medina. The prosecutor said: "Either you believe the witnesses the People put on, [or you believe] those officers, the credibility they establish while they were testifying, the number of years as experts, the number of years as officers patrolling the streets, protecting the community. [Defendant is telling] you to disregard their testimony and just believe him. Thats what you have to do to acquit him. You have to disbelieve the police and the expert testimony, and then you have to believe him. Thats what he is asking you to do." Viewed in context, the reference was to the officers experiences in "patrolling the streets, protecting the community" and was proper.
Defendant next complains the prosecutor told the jury that, if it accepted defendants testimony, then the government "must be prosecuting innocent people every single day in these courts." This statement, too, is taken out of context. The prosecutor made the remark during rebuttal closing argument. He urged the jury not to infer that, because defendant pleaded guilty when he was previously charged with possession for sale but not in the instant case, then he must not be guilty of possession for sale in the instant case. The prosecutor said that such an inference was "wrong" and, "If every defendant made that argument, then we must be prosecuting innocent people every single day in these courts. Thats why youre here, ladies and gentlemen, to determine what the truth is. Not to speculate [why defendant pled guilty in the prior cases but not in this case]." This was proper argument.
Finally, defendant complains that the prosecutor argued in rebuttal that if this was a "weak sales case" then the jury "probably wouldnt have a sales charge," it would have a possession charge. Again, the remarks are misconstrued by being taken out of context. The prosecutor was not vouching for the strength of the prosecutions case, as defendant suggests. Instead, he was saying this was not a "weak sales case" as defense counsel had just argued, but a strong one, and explained why the case was strong based on the evidence. He said: "Weak sales case would be the defendant is found with a gram and a half of methamphetamine, no cash, no scanner, no packaged baggies. That, ladies and gentlemen, is a weak sales case. And in that particular case you probably wouldnt have a sales charge, youd have a possession charge. This is a strong sales case. The quantity of methamphetamine is substantially heavy enough for sales."
(c) Alleged Impugning Integrity of Defense Team and Implying There Was Additional Evidence Harmful to Defense
Next, defendant claims the prosecutor impugned the integrity of the defense team and improperly implied there was additional evidence the jury had not heard that was harmful to the defense. He argues the prosecutor suggested during his cross-examination of the defense investigator, Roger LeMasters, and again in closing argument, that Mr. LeMasters might not turn over any information he found that was harmful to the defense. Again, defendant is taking the prosecutors statements and argument out of context.
In cross-examining Mr. LeMasters, the prosecutor asked Mr. LeMasters whether his duty was to investigate cases for defendants who were going to trial and to follow the instructions of the attorneys representing the defendants in those cases. Mr. LeMasters insisted his "sole responsibility" was to "investigate and find the truth." He later clarified it was not his "sole responsibility" to investigate cases for defendants in preparation for trial. On redirect, he testified that his duty as an investigator was to "search out and find the truth, whatever evidence there may be." Finally, on recross-examination, he admitted it was not his duty to turn over to the prosecution any evidence he found that was harmful to the defense.
During closing argument, the prosecutor told the jury that Mr. LeMasters worked for the County of Riverside and was assigned to investigate for defendants, as Mr. LeMasters testified. He also pointed out it was Mr. LeMasters job to "[look] for things that are going to help" defendant, and if he found evidence helpful to the prosecution it was not his duty to turn that evidence over to the prosecution, as a law enforcement agency would. He concluded by saying that Mr. LeMasters "is not an independent investigator, ladies and gentlemen. Hes not." Contrary to defendants argument, the prosecutor did not suggest that Mr. LeMasters had found any evidence that was harmful to the defense or helpful to the prosecution which he did not turn over to the prosecution.
In support of his argument to the contrary, defendant takes other statements of the prosecutor completely out of context. For example, he points out that the prosecutor at one point told the jurors there were "some things that you may not have heard about," and "those matters have been worked out." He also told the jury that the case was before them for "a variety of reasons. Technical, legal reasons, and things that you dont know about, and things that have not been shown to you because they are not to be considered."
These remarks had nothing whatsoever to do with Mr. LeMasterss testimony or his duties as an investigator. Moreover, when viewed in context, it is not reasonably likely the jury would have understood the remarks as having anything to do with Mr. LeMasters or his investigation of defendants case. Both before and after he made the remarks, the prosecutor told the jurors they were not to speculate about what punishment defendant might receive and to put aside any feelings of sympathy they may have for defendant. The remarks pertained solely to speculation concerning defendants punishment and sympathy for defendant; nothing improper.
Defendant complains the prosecutor "returned to this theme" in his rebuttal closing argument when he told the jury, "there are factors that you dont know about as to why he pled guilty in those prior cases." "Again, the reason why you dont hear that evidence, the reason why you did not get those four exhibits into evidence and the stipulation was entered, because there is information in there that you are not to consider as part of your deliberations." As defendants argument itself makes clear, the prosecutors references pertained to the defendants prior guilty pleas for possessing drugs for sale, and had nothing to do with any unspecified evidence Mr. LeMasters may have found that was harmful to the defense but did not disclose. Reasonable jurors could not have understood the remarks as having to do with anything other than defendants prior guilty pleas and, more specifically, why the jurors were not receiving the "four exhibits" or the plea forms themselves.
(d) Alleged Misstatements of Fact and Law
Defendant claims the prosecutor misstated the evidence when he told the jury: "Dont believe the defendants testimony says there is a Costco discount. There is not a Costco discount." Defendant claims this was a misstatement of the evidence. Defendant is correct. As defendant points out, it was not defendant but the prosecutions drug expert, Deputy Medina, who testified there is a "Costco theory" of purchasing drugs, which means that a purchaser of a large quantity will get a discount on his purchase price and may receive the discount even after the seller had broken a large quantity of drugs into smaller packages.
Nevertheless, it is not reasonably likely the jury was misled by the prosecutors rather minor misstatement that defendant, rather than Deputy Medina, testified that there was a Costco discount for purchasing drugs in bulk. (People v. Ochoa, supra, 19 Cal.4th at p. 427 [question is whether there is a reasonable likelihood the jury construed or applied the prosecutors complained-of remarks in objectionable fashion].) The defense was claiming that defendant purchased the entire 4.7 grams of methamphetamine for $150 for personal use, and believed it was an "eightball," or approximately three and one-half grams, of methamphetamine. The "Costco theory" was thus helpful to the defense theory that defendant possessed the methamphetamine for personal use and not for sale. The prosecutor was challenging the Costco theory by arguing that defendant possessed the 4.7 grams of methamphetamine for sale because the drugs were divided into packages. Thus, when the prosecutor urged the jury not to believe the defenses "Costco theory," he was, in effect, urging the jury not to believe there was a Costco discount or that defendant purchased the drugs in question for his personal use. Based on the record as a whole, it is not reasonably likely that the prosecutors minor misstatement confused the jury to defendants detriment.
Finally, defendant claims the prosecutor misstated the law by urging the jurors to rely on their "common sense." More specifically, he argues that the prosecutor, by urging the jurors to rely on their "common sense," improperly trivialized the "beyond a reasonable doubt" standard of proof by "equating it to the amorphous standard of something that is `common sense" and invited the jurors to consider outside evidence. Not so. In the latter portion of his initial closing argument, the prosecutor merely urged the jurors to "use your common sense. Look at all the evidence as total, as its been presented to you. Consider the sources of testimony and evidence. Your common sense is going to lead to guilt. . . ." In view of the context of the prosecutors remarks, it is not reasonably likely the jury understood them as urging them to find defendant guilty of the charged crime on anything less than a "beyond a reasonable doubt" standard of proof.
C. The Court Properly Refused to Strike Defendants Prior Strike and Prison Priors
Defendant filed a sentencing memorandum and accompanying motion requesting that the court strike his five prison priors and his prior strike conviction, a 1982 burglary conviction, for purposes of sentencing. (Pen. Code, § 1385; People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).) The motion was denied.
On this appeal, defendant claims the trial court "misapprehended the scope of its discretion and relied on the wrong standard" in determining "there was no legal or factual basis" to strike his prior strike or his prison priors. The trial court explained its reasons for refusing to strike defendants 1982 strike prior but did not separately address defendants request to strike his prison priors. As defendant points out, however, it can reasonably be assumed the trial court refused to strike his prison priors for the same reasons it refused to strike his 1982 strike prior. Nevertheless, we reject defendants claim. As we explain, the record shows the trial court understood and properly exercised its discretion in refusing to strike defendants strike prior and prison priors.
A court has discretion to strike a sentencing enhancement, including prior strikes and prison priors, in the interest of justice pursuant to Penal Code section 1385, subdivision (a). (Romero, supra, 13 Cal.4th at p. 530 [prior strikes]; People v. Bradley (1998) 64 Cal.App.4th 386, 392-396 [prison priors].) The courts discretion is limited, however. The court may strike a prior strike only if, "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 schemes 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. Williams (1998) 17 Cal.4th 148, 161.) The court must also consider "`"`the interests of society represented by the People . . . ."" (People v. Garcia (1999) 20 Cal.4th 490, 497-498, italics omitted.) The same considerations generally apply to the courts decision to strike a prison prior. (Ibid.; see also People v. Orin (1975) 13 Cal.3d 937, 947.)
As defendant points out, in determining whether to strike a prior strike, the court should not focus exclusively on the defendants criminal record because that provides a "limited perspective" which is "incompatible with the very nature of sentencing discretion." (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 981 [discussing courts discretion to reduce "wobbler" offense to misdemeanor]; see also People v. Garcia, supra, 20 Cal.4th at pp. 501-503.) The court should instead focus on, as defendant puts it, the "entire picture," or the particulars of the defendants entire background, character, and prospects and not only his criminal history. (People v. Williams, supra, 17 Cal.4th at p. 161.)
On appeal, we review a trial courts decision not to strike a prior strike, prison prior, or other enhancement for abuse of discretion. (See, e.g., People v. Carmony (2004) 33 Cal.4th 367, 376-377.) We ask whether the ruling "`"falls outside the bounds of reason" under the applicable law and the relevant facts [citations]. [Citation.]" (People v. Garcia, supra, 20 Cal.4th at p. 503.)
Defendant argues that the trial court "misapprehended the scope of its discretion and applied the wrong standard" in refusing to strike his strike prior, because it relied exclusively on his "failure to adhere to a blameless life standard" during the years following his 1982 prior strike conviction, as evidenced by the numerous misdemeanor and felony convictions he incurred between 1985 and 2004. Thus, defendant argues, the court failed to examine the "entire picture," including "the particulars of his background, character, and prospects." More specifically, he argues that the court "refused to even consider" the "relatively non-serious" and nonviolent nature of his current offense and the fact it involved a small amount of methamphetamine, 4.7 grams without packaging.
We disagree with defendants interpretation of the courts comments and reasons for denying his Romero motion. Contrary to defendants argument, the court did not rely exclusively on defendants lengthy criminal history in refusing to strike his 1982 prior strike and prison priors. Rather, the court based its denial of the Romero motion on defendants entire background, character, and prospects, including, but not limited to, his lengthy criminal history. The court expressly recognized, for example, that defendants current conviction involved the possession for sale of only 4.7 grams of methamphetamine, but it also noted that the jury found defendant guilty of possessing the drug for sale and that persons who possess methamphetamine for sale are responsible for perpetrating a "danger to the community."
The court said the "key focus" was the "remoteness" of defendants 1982 prior strike conviction. The court reasoned that, although the strike prior was 25 years old and defendant had never been convicted of a violent felony, he had incurred numerous serious felony and misdemeanor convictions between 1985 and 2004, mostly for drug-related offenses. In discussing defendants numerous post-1982 convictions, the court said he had not led a "so-called blameless life," but the court by no means indicated it believed it was without discretion to strike the 1982 strike prior because defendant had not adhered to a "blameless life standard," as defendant argues. Instead, the court relied on defendants post-1982 criminal history as indicating he had failed to reform and for that reason did not view his 1982 strike prior as "relatively insignificant."
In sum, the trial court both understood the scope of its discretion and acted within its discretion in refusing to strike defendants prior strike and prison priors for sentencing purposes. Notably, defendant points to no particulars of his background, character, or prospects that would have favored striking his prior strike or prison priors, other than that his current offense involved only 4.7 grams of methamphetamine without packaging.
D. The Upper Term Sentence Was Properly Imposed
Defendant was sentenced to a total term of 20 years, consisting of the upper term of three years on count 1, doubled to six years based on defendants prior strike conviction, plus 5 one-year terms for his five prison priors, plus 3 three-year terms for his 1996, 1998, and 2000 Health and Safety Code section 11378 convictions pursuant to Health and Safety Code section 11370.2, subdivision (c). In imposing the upper term on count 1, the court relied on defendants "extensive criminal history," which included "at least five felony drug-related offenses," the fact defendant had several probation or parole violations, and the fact he was on parole when he committed the offense in count 1.
Defendant claims the imposition of the upper term on count 1 violated the dual use doctrine (Pen. Code, § 1170, subd. (b); Cal. Rules of Court, rule 4.420(c)); and his Sixth Amendment right to a jury trial (Cunningham v. California (2006) 549 U.S. 270). We address these claims in turn.
All further references to rules are to the California Rules of Court.
The dual use doctrine holds that the sentencing court may not rely on the same factor in imposing both an upper term and a sentencing enhancement; it may impose one or the other, but not both. (Pen. Code, § 1170, subd. (b); rule 4.420(c).) Defendant claims his upper term sentence violated the dual use doctrine because in imposing it the court relied on his five prior drug-related convictions, while relying on the same convictions in imposing the one-year terms for his five prison priors (Pen Code, § 667.5) and the 3 three-year terms for his Health and Safety Code section 11370.2, subdivision (c) enhancements.
Defendants dual use argument misses the mark. In addition to his prior convictions, the court relied on the fact defendant was on parole when he committed his current offense in count 1 (rule 4.421(b)(4)) and defendants record of previous probation and parole violations (rule 4.421(b)(5)). According to defendants probation report, he violated probation in 1995 and violated parole in 1998, 2000, and 2004, and was on parole when he committed his current offense in January 2007. Moreover, the court did not rely on either of these two sentencing factors in imposing any sentencing enhancements. Thus here, there was no dual use violation.
Defendant does not dispute the factual bases of these findings.
Nor did the imposition of the upper term violate defendants right to a jury trial. The courts finding that defendant was on parole when he committed his current offense is sufficient, standing alone, to uphold the upper term against defendants constitutional challenge. (People v. Black (2007) 41 Cal.4th 799, 812-815, 819-820 [imposition of upper term based on courts determination defendant has suffered prior convictions which are numerous or of increasing seriousness does not violate the defendants right to a jury trial, renders the defendant eligible for the upper term, and is sufficient to uphold upper term sentence on appeal].) The courts finding that defendant had numerous prior convictions is also sufficient, standing alone, to uphold defendants upper term sentence. (People v. Towne (2008) 44 Cal.4th 63, 82 (Towne) [expanding scope of recidivism exception to Apprendi rule to encompass trial court finding that defendant reoffended while on probation or parole].)
Apprendi v. New Jersey (2000) 530 U.S. 466.
In order to preserve his claim for federal review, defendant argues Black was wrongly decided to the extent it held that a trial judges finding of a single circumstance in aggravation that satisfies Sixth Amendment requirements is sufficient, standing alone, to render the defendant eligible for the upper term and uphold the upper term sentence on appeal. Defendant also argues that People v. Sandoval (2007) 41 Cal.4th 825, 855 was wrongly decided to the extent it held that the Legislatures March 30, 2007, amendments to Californias determinate sentencing law (Stats. 2007, ch. 3, § 2, pp. 4-6; Pen. Code, § 1170 et seq.) apply to defendants, like himself, who were sentenced after the March 30, 2007, amendments but committed their crimes before the amendments. As defendant acknowledges, however, this court is bound by the decisions in Black and Sandoval. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Defendant was sentenced in August 2007.
Defendant does not argue that Towne was wrongly decided, but that argument follows from his argument that Black was wrongly decided. Defendants opening brief was filed on June 23, 2008, three days before the California Supreme Court issued its decision in Towne on June 26, 2008. In any event, this court is bound by the decision in Towne. (Auto Equity Sales, Inc. v. Superior Court, supra 57 Cal.2d at p. 455.)
IV. DISPOSITION
The judgment is affirmed.
We concur:
Ramirez, P.J.
Hollenhorst, J.