P. v. Williams

Filed 6/15/07 P. v. Williams CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, John Conley, Judge. Affirmed.

Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia and Janelle Marie Boustany, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

A jury convicted Paris Bobby Williams of two counts of first degree residential burglary, and the court found he had previously suffered numerous prior felony convictions including multiple strikes under the Three Strikes law. He argues the trial court abused its discretion by denying his mistrial motion concerning one of the counts because the prosecutor was dilatory in providing discovery concerning the criminal record of a witness. He also contends his 75-year-to-life sentence is cruel and unusual. Finding no basis to disturb the judgment, we affirm.

I

Facts and Procedural history

A. March 15, 2004 Burglary

Barbara Elnesss Garden Grove townhouse was burglarized while she was at work on March 15, 2004. The burglar made a fist-sized hole in a hollow-core entry door, apparently with rock from the adjacent patio, and stole jewelry from an upstairs bedroom. DNA from blood on a paper towel found on Elnesss living room floor matched defendants DNA. Elness did not know defendant or give him permission to be in her home.

B. May 5, 2004 Burglary

On the morning of May 5, 2004, Joseph Polizzi and his brother left the Buena Park ground floor apartment they shared with their mother, who was vacationing out of state. They did not check her bedroom specifically, but other doors and windows were locked and screens were in place. Later that day, Hector Soto, the Polizzis neighbor and the apartment maintenance manager, saw defendant walk out the Polizzis front door with two black bags. Soto approached defendant and asked defendant if he could help with anything. Defendant replied he was visiting a friend and demanded to know why Soto was messing with him. Soto turned and walked to the office, spoke to his supervisors, and together they walked to the Polizzis unit. Someone had bent and torn back the mothers bedroom window screen, the window was open, and the window blinds were askew. The front door was either closed or slightly ajar. They knocked and pushed it open without a key, peering inside. Seeing the apartment had been ransacked, they telephoned the police and set out after the defendant.

The men located defendant sitting at a bus stop holding the bags. When defendant saw the trio, he stood, grabbed the bags, and walked quickly toward a nearby library, continually looking back over his shoulder. The police arrived and after talking with Soto and his cohorts, contacted defendant inside the library. He told an officer he was there to check out books but admitted he did not have a library card. He claimed he had been visiting Frank, gesturing toward the apartment complex. Two black duffle bags located near the public entrance to the library contained loot taken from the Polizzis residence.

The jury convicted defendant on two counts of residential burglary. The trial court found defendant had suffered seven prior strikes within the meaning of the Three Strikes law, five of them brought and tried separately. The court imposed consecutive 25-year-to-life terms for each current burglary under the Three Strikes law, and added five consecutive five-year enhancements under Penal Code section 667, subdivision (a)(1), for a total term of 75 years to life.

II

Discussion

A. The Trial Court Did Not Abuse Its Discretion by Denying Defendants Mistrial Motion

1. Background Facts

Before jury selection, defense counsel requested permission to impeach Soto with misdemeanor convictions for petty theft and false identification he received in 1994 when he was 20 years old. Counsel argued for admission of the nature of Sotos crimes because this [the current burglary] is a theft crime and Soto did have access to the apartment. [] [He] is the apartment maintenance person and is the one specifically who would have had the key to get into the apartment and do the burglary[] . . . [and] I intend to blame him for this burglary. . . . I would think its especially probative that he has a prior petty theft conviction. Counsel stated he was not just seeking to impeach his credibility and that the prior conduct was directly relevant to this specific case. Im going to be arguing he is a thief. He has stolen in the past, and he did it this time.

The prosecutor countered the evidence was insufficiently probative under Evidence Code section 352, noting Soto has had no record since then. She also noted the facts demonstrated the culprit forced entry through the window, but no evidence suggested a key had been used to gain entry. The court reserved ruling on the motion.

After the jury was sworn and just before opening statements, defense counsel, informed the court he had learned the previous day that Soto had pleaded guilty to a misdemeanor violation of unauthorized entry (Pen. Code,  602.5, subd. (a)) in July 2005, over a year after the charged burglary. The court took a short break to allow the parties to speak with Soto and confirm that he had suffered the conviction and that the incident had occurred in the same apartment complex. Because the parties had not yet obtained the police report on Soto, the court instructed defense counsel not to mention the conviction during his opening statement.

At the break, the parties reviewed the police report concerning Sotos unauthorized entry. According to the report, a female tenant at the Buena Park complex reported that on May 26, 2005, around 3:00 a.m., she heard knocking at her front door. She did not answer the door, and when the knocking stopped, she walked from her bedroom to the living room before returning to her room. While in her bed, she heard the front door open and close. When she walked toward the bedroom door, she saw Soto in her hallway. He was shirtless and very intoxicated. Demanding an explanation, she asked why he used his maintenance pass key to enter her apartment. Soto backed up toward the front door and repeatedly said, No, no. I was knocking. She followed Soto outside as he walked down the stairs, continuing to argue with him. He claimed her front door was unlocked and he denied entering her apartment. An investigating officer spoke to Soto and it was quickly evident that [he] was very intoxicated. The officer could smell the strong odor of an alcoholic beverage emitting from his breath and/or person. He had very slurred speech and he had trouble standing. He arrested Soto for misdemeanor trespassing (Pen. Code,  602, subd. (m)), and Soto ultimately pleaded guilty to unauthorized entry ( 602.5).

Defense counsel moved for a mistrial, arguing that the information in the police report required further investigation. Counsel wanted his investigator to talk to the victim and other neighbors to see if Soto had done this before. Counsel stated that if he had the information before yesterday, all of this would have been investigated. [] I dont say this lightly. . . . This was directly relevant to my case. . . . And I need to investigate it further. He requested the court to remedy the discovery violation by precluding Soto from testifying or granting a mistrial. He also asked for a continuance.

The prosecutor disclosed the apartment manager had just informed her there had been other burglaries that had occurred around the same time period in this apartment complex. Defense counsel asserted, There were apparently other victims that his investigator might tie to Mr. Soto.

The trial court denied the mistrial motion and the motion to prevent Soto from testifying. The court observed there was a previously scheduled recess in the trial set for the following day and the weekend, providing counsel with three days to investigate the incident. The court stated it would reconsider its ruling if defense counsels investigation produced more compelling evidence. The court also postponed Sotos cross-examination to the following week.

Soto testified on direct examination concerning his observations of defendant leaving the Polizzis apartment. Soto also testified he did not carry a pass key when the Polizzi burglary occurred, but admitted he had access to the apartment keys stored in the managers office. Soto stopped working at the apartments in June 2005.

When trial resumed the following Monday, defense counsel again moved for a mistrial, explaining he needed more time to complete the investigation. Counsel reported he had interviewed and subpoenaed the victim in Sotos 2005 trespass case, who revealed other people in the building had had similar problems with Soto. He also had reviewed information he received from the prosecutor concerning five similar burglaries at the complex from May to December 2004. Counsel felt two were important. In July 2004, someone burglarized an apartment by prying a screen and the case remained unsolved. Counsel argued Soto knew everyone was aware he had access to keys so he might leave some evidence that a screen was bent to say that somebody else did it . . . . Another unsolved burglary occurred in September 2004. The tenants claimed they had locked the doors, although a crime scene investigator determined a lock was defective. The other burglaries involved forced entry. The prosecutor also disclosed information concerning a burglary occurring in April 2004, one month before defendants arrest for the Polizzi burglary. Counsel noted a fingerprint found on an entertainment unit in that case did not match his client and he wanted time to determine whether it matched Soto.

The court denied the mistrial motion, stating it was not impressed with the evidence linking Soto to the Polizzi burglary. The court also concluded the May 2005 trespass incident was not admissible to impeach Soto because the conviction did not demonstrate moral turpitude. The court found that the other burglaries in the apartment complex were inadmissible because they failed to show third party culpability for the Polizzi burglary. (See People v. Hall (1986) 41 Cal.3d 826, 833 [evidence of third party culpability admissible only if it raises a reasonable doubt as to defendants guilt].)

Defense counsel elected not to cross-examine Soto and rested without presenting any affirmative evidence. Counsel argued Soto misidentified defendant as the person coming out of the apartment and the police identification procedures at the scene of the arrest were suggestive. Concerning the second count, counsel sought to raise a reasonable doubt by attacking the procedures used to analyze the DNA evidence. Defendants new trial motion based on the late discovery was denied.

2. No Denial of Due Process for Delayed Disclosure

Defendant argues the trial court violated his due process right to a fair trial by not granting a mistrial based on the untimely disclosure of Sotos trespass conviction. He argues the court should have declared a mistrial because the delayed disclosure prohibited defense counsel from conducting a full pretrial investigation, making an informed tactical decision as to a defense and questioning witnesses consistent therewith.

A mistrial motion should be granted only when the moving partys chances of receiving a fair trial have been irreparably damaged. (People v. Ayala (2000) 23 Cal.4th 225, 283-284.) Whether a particular incident is incurably prejudicial is speculative, and the trial court is vested with considerable discretion in ruling on mistrial motions. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1154; People v. Cox (2003) 30 Cal.4th 916, 953.) We review a trial courts ruling on whether to grant a mistrial for abuse of discretion. (Ayala, at pp. 282-283; People v. Lewis (2006) 39 Cal.4th 970, 1029.)

For present purposes, we assume the prosecutor was dilatory in disclosing Sotos misdemeanor conviction for unauthorized entry. (See People v. Santos (1994) 30 Cal.App.4th 169, 178 [federal due process requires disclosure of misdemeanor convictions when requested by the defendant and the information is in the prosecutors possession].) But to obtain reversal, defendant also must establish that the outcome would have been different had the evidence been disclosed earlier. (Kyles v. Whitley (1995) 514 U.S. 419, 434 [a reasonable probability of a different result is shown when nondisclosure undermines confidence in the verdict]; People v. Bohannon (2000) 82 Cal.App.4th 798, 806-807 [defendant must establish reasonable probability the result of the proceedings would have been different had the evidence been disclosed].)

Here, we are unpersuaded there is a reasonable probability the outcome of the trial would have been different had the prosecution disclosed Sotos conviction earlier. Defendant was seen leaving the victims apartment carrying two bags later found to contain property stolen in the burglary. Soto and two other employees of the apartment complex alerted police and followed defendant to the bus stop. They informed officers arriving on the scene that defendant had retreated to a nearby public library. Police arrested defendant and recovered the two black bags near the library entrance. At trial, defendant failed to provide any evidence explaining how he came into possession of the Polizzis property, which included money, jewelry, and a laptop computer.

At the outset of the trial, before the prosecutor disclosed Sotos conviction for unauthorized entry, defense counsel informed the court he would blame Soto for the Polizzi burglary. Presumably, defense counsel conducted a thorough pretrial investigation focusing on Soto as the culprit, but uncovered no admissible evidence linking Soto to the crime. Consequently, it is sheer speculation that further investigation would have unearthed evidence connecting Soto to the burglary. Defendant also engages in rank speculation when he claims further investigation would have determined whether Sotos entry was achieved with a pass key, a dubious reason to delay trial considering the evidence of forced entry.

Defendant also complains about the untimely disclosure of the post‑May 2004 burglary reports concerning the same apartment complex. He notes two of the burglaries were similar to the Polizzi burglary, and in one case there was a fingerprint that did not match defendants but had not been compared to Sotos. These reports did not furnish the basis for a mistrial. Nothing in the record demonstrates the prosecutor committed Brady error here. Nothing about these incidents tended to exonerate defendant or connect Soto to these crimes. As for the fingerprint, the trial court did not prevent defense counsel from investigating whether the latent fingerprint matched Soto, and we assume counsel was satisfied on this issue because he failed to ask for a continuance.

In sum, we agree with the Attorney General it is difficult to see how the late disclosure of Sotos misdemeanor conviction or the information about other burglaries could have adversely affected the defense. We therefore conclude the court did not abuse its discretion in denying defendants numerous mistrial motions.

B. Defendants Sentence Does Not Constitute Cruel and/or Unusual Punishment

Defendant also contends his sentence is cruel and/or unusual under the California and United States Constitutions. Trial counsel emphasized his 44-year-old clients current charges and past offenses involved mostly nonviolent crimes, and his most recent strike conviction, a 1990 residential burglary, occurred 14 years ago. Counsel suggested the trial court could strike six of the seven prior strike convictions (People v. Superior Court (Romero)) (1996) 13 Cal.4th 497) and still arrive at a lengthy term of 25 to 30 years which would reflect a more proportional sentence for defendants crimes and criminal history. The prosecutor noted defendant had a 1980 prior conviction for assault with intent to rape and had been released in November 2002 for his 1990 burglary conviction. The prosecutor also emphasized he failed to register as a sex offender in March 2003, and remarked, [H]e basically has not spent any significant period of time . . . dating all the way back to 1979, where hes been out of custody at all. The court declined to strike the strikes and implicitly rejected defendants cruel/unusual argument, citing defendants lengthy record, which in addition to the 1980 assault and 1990 residential burglary, included five first degree residential burglaries in 1980, 1982, 1984, and 1987.

Defendants lengthy sentence does not offend either the federal or state Constitutions. The Eighth Amendment of the United States Constitution prohibits only extreme sentences that are grossly disproportionate; there is no requirement of strict proportionality between crime and sentence. (Harmelin v. Michigan (1991) 501 U.S. 957, 1001.) Statutes requiring harsher treatment for recidivists rarely result in a prohibited sentence. (See, e.g., Rummell v. Estelle (1980) 445 U.S. 263.) In Ewing v. California (2003) 538 U.S. 11, the court concluded defendants sentence of 25-years-to-life for commercial burglary was not grossly disproportionate to the offense and therefore did not violate the Eighth Amendments prohibition against cruel and unusual punishment. (Id. at p. 28.) Here, defendants convictions posed a greater risk of harm than the defendants theft of three golf clubs in Ewing, and defendants criminal history is more extensive than the defendants in Ewing. If there was no Eighth Amendment impediment to the sentence in Ewing, it logically follows that defendants sentence passes constitutional muster.

The test under the state Constitution is whether the punishment is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity. (In re Lynch (1972) 8 Cal.3d 410, 424.) The defendant must demonstrate the punishment is disproportionate in light of (1) the offense and defendants background, (2) more serious offenses, and (3) similar offenses in other jurisdictions. (Id. at pp. 429-437.) Defendant must overcome a considerable burden to show his sentence was disproportionate to his level of culpability. (People v. Wingo (1975) 14 Cal.3d 169, 174.) As a result, [f]indings of disproportionality have occurred with exquisite rarity in the case law. (People v. Weddle (1991) 1 Cal.App.4th 1190, 1196.)

Defendant recognizes burglary is a serious crime and that he has a lengthy criminal record, much of it identical to the charged crimes. He also recognizes the burglaries he committed occurred within a year of his release on parole. But he asserts his history suggests the presence of an unrecognized and/or untreated psychological, psychiatric or neurological problem which compels his entry into other peoples homes. He asserts, Otherwise, there is no explanation for the repetition of criminality when appellant surely knew the draconian [sentence] awaiting him upon conviction for[] the same behavior. He finds support for his claim of mental defect in the circumstances of the Buena Park apartment burglary, which was unsophisticated and poorly planned. Not only did [it] occur in a large apartment complex where appellant easily could be observed by residents coming and going during daylight hours, but he relied on public transportation to get away from the scene. In other words, defendant must suffer from some mental infirmity because he continues to reoffend and invariably bungles his ill-conceived criminal endeavors. Suffice it to say, this is one of the more fanciful arguments we have heard.

Defendant presented no evidence of mental defect or illness. It may be that defendant lacks the ability to control his compulsion to commit crimes, but this is hardly a mitigating circumstance. While we agree the sentence may be impossible to serve and has a warehouse effect, defendant sadly falls within the class of incorrigible criminals the Legislature and electorate sought to punish under the Three Strikes law. Defendants potential life sentence, while harsh, does not violate Californias ban on cruel or unusual punishments.

III

Disposition

The judgment is affirmed.

ARONSON, J.

WE CONCUR:

OLEARY, ACTING P. J.

IKOLA, J.

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