Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. MA039739, Charles A. Chung, Judge.
Linda Acaldo, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
KITCHING, J.
Keith Howard Hart appeals from the judgment entered following his plea of no contest to possessing cocaine for sale (Health & Saf. Code, § 11351), resisting an executive officer (Pen. Code, § 69), being a felon in possession of firearms (Pen. Code, § 12021, subd. (a)(1)), willfully evading an officer (Pen. Code, § 2800.2, subd. (a)) and transporting cocaine (Health & Saf. Code, § 11352, subd. (a)), and his admission that he previously had been convicted of a serious or violent felony within the meaning of Penal Code sections 667, subdivisions (b) to (i) and 1170.12, subdivisions (a) to (d), the “Three Strikes” law. The trial court sentenced Hart to 12 years, 8 months in prison. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The facts have been taken from transcripts of the preliminary hearings.
At approximately 8:40 p.m. on August 27, 2007, Los Angeles County Deputy Sheriff Ernie Masson and his partner, Deputy Gonzalez, were driving through a parking lot on Palmdale Boulevard in Palmdale. There they saw Hart, sitting inside a black Jeep Cherokee, having an argument with a woman sitting inside a blue pick-up truck. Gonzalez and his partner stopped, approached the Jeep and asked Hart if they could search the vehicle. Hart told the deputy that it was “all good” and that he could search the Jeep, which belonged to his “baby’s mama.” A search of the Cherokee revealed six small, clear plastic baggies containing methamphetamine and nine small, clear plastic baggies containing cocaine. When Masson showed the containers to Hart, he “spontaneously” said they belonged to him, then asked the deputy if he could “ ‘give [him] a break.’ ”
Masson advised Hart of his Miranda rights and placed him in the back seat of the patrol car. When Masson asked Hart to turn his back toward the deputy so that he could be handcuffed, Hart “lifted his left leg and kicked [the deputy] in the left knee.” Masson took a step back and Hart got out of the patrol car. He swung his elbows around, grazing Masson’s lip and forehead. Masson grabbed Hart and the two “kind of wrestled” until Hart got away and ran across the parking lot. Masson was unable to catch up with Hart to apprehend him.
Miranda v. Arizona (1966) 384 U.S. 436.
Los Angeles County Deputy Sheriff Roger Izzo was assigned to the “Custody Headquarters Training Unit.” He had testified between 15 and 20 times as an expert with regard to the possession of methamphetamine and cocaine for the purpose of sale. Based on the fact that he was in possession of two separate types of narcotics, that the amount of narcotics recovered was fairly large, that the narcotics were individually packaged in one gram units, “which is a common way narcotics are sold,” that no narcotics paraphernalia was found and that Hart did not appear to be under the influence, Izzo concluded that Hart possessed the narcotics for the purpose of sale. Izzo believed that the methamphetamine would sell for approximately $100 per gram. The powder cocaine, of which Hart possessed 10 grams, would likely sell for $200 per gram.
At approximately 6:30 p.m. on September 11, 2007, Deputy Sheriff Izzo and his partner, Sergeant Sylvies, went to 44454 Shadow Crest Drive in the City of Lancaster as part of an investigation they were conducting with regard to Hart. The two deputies went to the front porch of the residence, pounded on the door and announced that they were police officers. After awhile the deputies heard the garage door open and saw Hart, who was driving a white Buick, begin to back out. Sylvies and Izzo went to the driveway where Sylvies, who had pulled out his gun, kicked the Buick and ordered Hart to stop. However, while Sylvies was attempting to detain Hart, a woman, later identified as Hart’s girlfriend, drove a second vehicle out of the garage and down the driveway. Sylvies had to jump to get out of the way of the second car and, as he did so, Hart drove off in the Buick “at a high rate of speed.”
A subsequent search of the Shadow Crest Drive house revealed seven loaded firearms, consisting of six handguns and a shotgun, and a functioning taser. The shotgun was in the laundry room “just lying against the wall in plain view.” The remaining weapons were under a blanket on the laundry room floor. One must walk through the laundry room to get from the garage to the “body of the house.”
When the deputies interviewed the woman who had driven the second car out of the garage, she told them that, as they were pounding on the door, Hart had said, “ ‘Oh, fuck. The cops are here.’ ” He had then told the woman that they had to leave.
On November 5, 2008, California Highway Patrol Officer Joel Lynch worked in the area surrounding Lancaster and the Antelope Valley. At approximately 10:50 p.m., the officer and his partner were on Sierra Highway, just south of Avenue O. Lynch observed Hart’s car stopped on the right shoulder with its hazard lights on. The car, which was approximately two feet from the No. 2 lane, had paper license plates with “no visible form of registration.” As the officers pulled up, Hart got out of the vehicle. He told Lynch that something was making a “jiggling noise inside his trunk.” Hart then “quickly opened the trunk,” put his hand in as though he was adjusting something, shut the trunk and quickly returned to the driver’s seat of his car. When Lynch asked Hart to provide him with some identification, Hart stated that he did not have any with him and that he was in the “process of moving.” When Lynch’s partner, Officer Ginchereau, asked Hart for his name and date of birth, Hart told him that his name was “Anthony Stevens” and that his date of birth was “3/31/69.” Because Hart’s voice was shaky and he seemed nervous, Lynch walked around to the driver’s side of Hart’s car to obtain a vehicle identification number. However, when Lynch asked Hart to turn the car off, Hart refused, then “drove away quickly.” Lynch had to take “evasive action” to avoid being hit or run over by the car.
Lynch and Ginchereau returned to their patrol car and pursued Hart. From Sierra Highway, Hart turned onto Avenue O. The officers, with their lights flashing and siren on, followed him. The officers were within approximately 500 feet of Hart when he made a turn onto Division Street and increased his speed. Lynch and Ginchereau followed, accelerating to catch up with Hart. After turning onto Grand Cypress Avenue, Hart, who was at this point traveling at approximately 75 miles per hour, turned into a parking lot, then back onto Avenue O. After making more turns, Hart drove into oncoming traffic on 10th Street. He moved back and forth, in and out of opposing lanes, causing traffic to pull up onto the shoulder to avoid colliding with him. After nearly striking a truck while driving through a red light, Hart pulled to the side of the road, got out of his car and ran. Lynch got out of his patrol car and chased Hart on foot.
With Lynch in pursuit, Hart ran behind a strip mall, then climbed over a brick wall. Behind a second strip mall, Lynch was able to apprehend Hart. Lynch “displayed [his] conductive energy weapon, commonly known as a taser,” and ordered Hart to lie down on the ground. Hart did as he was told. However, when the officer attempted to place handcuffs on him, Hart got up and began to walk away. It was only after he was “tased” three times and other officers who had arrived assisted them that Lynch and Ginchereau were able to take Hart into custody. A search of Hart revealed an altered driver’s license and, in his front pocket, “four small baggies of a white powdery substance and two baggies with a clear crystal-like substance.”
It was stipulated that the items taken from Hart and booked into evidence consisted of 1.77 grams of a powder containing methamphetamine and four containers “with a total net weight of 3.74 grams of powder” containing cocaine. Deputy Izzo was called as a witness and testified that, based on Officer Lynch’s testimony, he was of the opinion that the methamphetamine and cocaine were possessed by Hart for the purpose of sale. Izzo based his opinion on the amount of the drugs possessed and the way in which they were packaged. The amount of methamphetamine consisted of over 30 uses, which the deputy indicated was “far more than the normal user possesses.” As to the cocaine, Izzo was of the opinion that it had a “street value” of approximately $800. He believed the amount consisted of “conservatively, 75 or more uses, packaged in several different bags.”
2. Procedural history.
On March 8, 2010, three outstanding informations were consolidated into one case. In that information, Hart was charged with 12 counts: possession for sale of cocaine (Health & Saf. Code, § 11351) (count 1), possession for sale of methamphetamine (Health & Saf. Code, § 11378) (count 2), three counts of resisting an executive officer (Pen. Code, § 69) (counts 3, 5 & 13), possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1)) (count 4), evading an officer with willful disregard for the safety of persons and property (Veh. Code, § 2800.2, subd. (a)) (count 6), evading an officer by driving against traffic (Veh. Code, § 2800.4) (count 7), the transportation of cocaine (Health & Saf. Code, § 11352, subd. (a)) (count 8), the possession for sale of cocaine (Health & Saf. Code, § 11351) (count 9), the transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a)) (count 10), the possession for sale of methamphetamine (Health & Saf. Code, § 11378) (count 11), and the possession of a forged driver’s license (Pen. Code, § 470b) (count 12). As to counts 1, 2, 3, 6, 7, 8, 9, 10, 11 and 12, it was further alleged, pursuant to Penal Code sections 667, subdivisions (b) to (i) and 1170.12, subdivisions (a) to (d), the “Three Strikes” law, that in 1998 Hart had been convicted of willfully threatening to commit a crime which would result in death or great bodily injury to another person or a member of that person’s immediate family (Pen. Code, § 422). As to counts 1, 2, 3, 4 and 5, it was alleged that, pursuant to Penal Code section 667.5, subdivision (b), Hart previously had served a prison term. Finally, with regard to counts 8, 9, 10 and 11, it was alleged that Hart previously had been convicted of possession of cocaine base for sale (Health & Saf. Code, § 11351.5) and the transportation of a controlled substance (Health & Saf. Code, § 11352, subd. (a)) within the meaning of Health and Safety Code section 11370.2, subdivisions (a) and (c).
After the charges against him were consolidated, Hart made a motion to suppress all evidence seized without a warrant (Pen. Code, § 1538.5). He asserted that, when officers apprehended him in a parking lot on August 27, 2007, they had no reason to search his Jeep Cherokee. In addition to the motion to suppress evidence, Hart made a Pitchess motion. In response, the trial court ordered that one incident involving “discrepancies in a report... written by [a sergeant by the name of] Gonzalez” was discoverable by Hart.
Pitchess v. Superior Court (1974) 11 Cal.3d 531.
Trial and the hearing on the motion to suppress evidence were set for March 12, 2010. However, on that date, the matter was advanced to March 15, 2010. At that time, Hart agreed to enter a negotiated plea of guilty or no contest. Under the terms of the agreement, Hart would admit five of the charges and the remaining eight counts would be dismissed.
After waiving his right to a court or jury trial, his right to confront and cross-examine the witnesses against him, his right to subpoena witnesses and present a defense and his privilege against self-incrimination, Hart pleaded no contest to possession for sale of cocaine (Health & Saf. Code, § 11351) as alleged in count 1 of the information, pleaded no contest to resisting an executive officer (Pen. Code, § 69) as alleged in count 3 of the information, pleaded no contest to possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1)) as alleged in count 4, pleaded no contest to evading a police officer with willful disregard for the safety of persons and property (Veh. Code, § 2800.2, subd. (a)) as alleged in count 6 and pleaded no contest to the transportation of cocaine (Health & Saf. Code, § 11352, subd. (a)) as alleged in count 8 of the information. Hart admitted that he had previously been convicted of a serious or violent felony within the meaning of the “Three Strikes” law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and waived arraignment for judgment and sentencing.
The trial court sentenced Hart to three years in prison for his conviction of possession for sale of a controlled substance as alleged in count 1 (Health & Saf. Code, § 11351), then doubled the term to six years pursuant to the “Three Strikes” law. The trial court imposed a consecutive term of eight months, doubled to one year, four months pursuant to the “Three Strikes” law, for Hart’s conviction of resisting an executive officer as alleged in count 3 of the information (Pen. Code, § 69). The trial court imposed a consecutive term of eight months, doubled to one year, four months, pursuant to the “Three Strikes” law for Hart’s conviction of possession of a firearm by a felon as alleged in count 4 (Pen. Code, § 12021, subd. (a)(1)), and sentenced Hart to a consecutive term of eight months, doubled to one year, four months, for his conviction of evading an officer as alleged in count 6 of the information (Veh. Code, § 2800.2, subd. (a)). Finally, the trial court sentenced Hart to a consecutive term of one year, four months, doubled to two years, eight months, for his conviction of the transportation of a controlled substance as alleged in count 8 of the information (Health & Saf. Code, § 11352, subd. (a)). In total, the trial court sentenced Hart to 12 years, 8 months in prison. After imposing sentence, the trial court dismissed counts 2, 5, 7, 9, 10, 11, 12, and 13 and all remaining allegations.
Hart was given presentence custody credit for 496 days actually served and 248 days of conduct credit, for a total of 744 days. The trial court ordered Hart to pay a $100 court security fee (Pen. Code, § 1465.8, subd. (a)(1)), a $2,400 restitution fine (Pen. Code, § 1202.4, subd. (b)), a stayed $2,400 parole revocation restitution fine (Pen. Code, § 1202.45), a $50 laboratory fee (Health & Saf. Code, § 11372.5, subd. (a)) and a $150 “critical needs” fine pursuant to “SB 1407.”
Hart filed a timely notice of appeal on May 17, 2010.
This court appointed counsel to represent Hart on appeal on June 15, 2010.
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 July 20, 2010, the clerk of this court advised Hart to submit within 30 days any contentions, grounds of appeal or arguments he wished this court to consider. On August 17, 2010, Hart filed a supplemental brief in which he asserted that the making of criminal threats in violation of Penal Code section 422 cannot qualify as a “strike” for purposes of the “Three Strikes” law. He argues that, in 1998, when he committed the crime, it was not considered to be a serious or violent felony. Accordingly, it cannot now be used as a strike. The contention is without merit.
In People v. Jackson (1985) 37 Cal.3d 826, 833, the court determined the defendant’s contention that a serious felony enhancement provided for in Penal Code section 667, subdivision (a) could not be based on the defendant’s admitted prior crime because that crime antedated the enactment of the enhancement statute was without merit. The court indicated that “[s]ection 667 plainly was intended to take account of antecedent crimes[.]... The basic purpose of the section-the deterrence of recidivism-would be frustrated by a construction which did not take account of prior criminal conduct.” (Jackson, at p. 833.) Here, the version of Penal Code section 667, subdivision (d) under which Hart was sentenced provided: “Notwithstanding any other law and for the purposes of subdivisions (b) to (i), inclusive, a prior conviction of a felony shall be defined as: [¶]... any offense defined in subdivision (c) of [s]ection 1192.7 as a serious felony in this state.” The version of section 1192.7 under which Hart was sentenced contains subdivision (c)(38). That subdivision provides that making “criminal threats, in violation of [s]ection 422” amounts to a serious felony. The fact that the crime of making criminal threats did not become a serious felony for purposes of the “Three Strikes” law until after he had committed the offense is irrelevant. Like section 667, subdivision (a), the “Three Strikes” law, was enacted to deter recidivism. To not include Hart’s prior conviction because the crime was committed before it was included as a serious felony for purposes of that law would frustrate the purpose of the law. (See People v. Guerrero (1988) 44 Cal.3d 343, 355.)
Moreover, subdivision (d) of Penal Code section 667, considered with subdivision (c)(38) of Penal Code section 1192.7, provided Hart with notice that his prior conviction for criminal threats in violation of Penal Code section 422 could be used as a strike. After having been provided with such notice, Hart freely and voluntarily admitted that he had been convicted of the offense for purposes of the “Three Strikes” law.
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.
We concur: CROSKEY, Acting P. J., ALDRICH, J.