P. v. Winston
Filed 4/11/07 P. v. Winston CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, Plaintiff and Respondent, v. MARK A. WINSTON, Defendant and Appellant. | D046809 (Super. Ct. No. SCD183375) |
APPEAL from a judgment of the Superior Court of San Diego County, David M. Gill, Judge. Affirmed in part and reversed in part.
A jury convicted Mark A. Winston of transportation of a controlled substance (Health & Saf. Code, 11379, subd. (a)), possession for sale of a controlled substance (id., 11378) and misdemeanor possession of a controlled substance (id., 11357, subd. (b)). After receiving the jury's verdict, the trial court made findings that Winston had four prison priors and three prior strike convictions. (Pen. Code, 667.5, subd. (b), 667, 1170.12.) As a third strike offender, Winston was sentenced to 28 years to life in prison.
Winston appeals both his convictions and his sentence on numerous grounds. He contends: (i) the trial court erroneously denied his motion to suppress evidence; (ii) the trial court erred by failing to conduct an in camera review of police personnel files pursuant to his motion for discovery under Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess); (iii) there was insufficient evidence to support the jury's verdict that he transported methamphetamine; (iv) the trial court erroneously instructed the jury in response to an inquiry regarding the lawfulness of the police search of his vehicle; (v) the trial court abused its discretion under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 in declining to strike any of his prior strikes; (vi) his sentence is unconstitutional under both California and federal law because it is cruel and unusual; (vii) his sentence is unconstitutional as a violation of double jeopardy principles; and (viii) the trial court erroneously relied at sentencing on a prior strike alleged to have been the result of an unconstitutional conviction.
Our review of Winston's contentions reveals that only the last contention is meritorious. Accordingly we affirm the convictions, but remand for resentencing in light of the trial court's failure to hold an evidentiary hearing regarding one of Winston's prior strikes as required under People v. Sumstine (1984) 36 Cal.3d 909 (Sumstine).
FACTS
At approximately 12:15 a.m. on June 7, 2004, Detectives Michael Brogdon and Mike Gallivan were on patrol in a marked police car in San Diego when they observed a man on a bicycle, leaning forward and looking into the driver's side window of a sports utility vehicle (SUV) parked at a strip mall. Suspecting that the individual, later identified as Daniel Levigne, might be intending to burglarize the SUV, the detectives drove into the parking lot, parked their car and approached the vehicle. They then noticed Winston in the driver's seat of the vehicle, with the engine running and the headlights on.
The detectives approached Winston and Levigne and initiated a conversation with each of them. As Detective Brogdon talked to Winston, who remained in the SUV, he noticed a metal aluminum briefcase and a marijuana pipe lying adjacent to the briefcase on the front passenger seat. The detective asked Winston for identification. When Winston opened the briefcase to get his identification, Brogdon observed two plastic baggies inside the briefcase that appeared to contain marijuana. Brogdon then arrested Winston for possessing marijuana and placed him in the patrol car.
The detectives searched the SUV. From Winston's briefcase, they recovered the baggies containing marijuana as well as identification in Winston's name along with bills and letters addressed to him. The police also found a second marijuana pipe beneath the briefcase, four cell phones located in the cup holders in the center console of the car and 14 blister packs of Sudafed on the front passenger floorboard. Thirteen additional blister packs of Sudafed and three more cell phones were located in a cardboard box in the rear of the SUV. Detective Brogdon testified that Sudafed is commonly used in "backyard" manufacturing of methamphetamine.
The detectives' continued search of the passenger compartment of the S.U.V revealed a second briefcase on the rear passenger seat. After forcing open the second briefcase, they found methamphetamine separately packaged in six small plastic baggies, and nine empty baggies. The second briefcase also contained a "price list" detailing the prices for various quantities of methamphetamine. Finally, the detectives found a digital scale in a suitcase in the rear of the SUV and $106 in Winston's pants pocket.
Detective Brogdon opined that based on the quantity of methamphetamine (approximately 260 "dosage units"), the packaging, various items found inside the SUV (e.g., multiple cell phones, Sudafed), and the fact that Winston was not under the influence of methamphetamine when arrested, the methamphetamine in the briefcase was intended for sale.
DISCUSSION
I
The Trial Court Did Not Err in Denying Winston's Motion to Suppress Evidence
Winston argues that the trial court erred in denying his motion to suppress because the evidence seized from his SUV was the product of an unlawful seizure in violation of the Fourth Amendment. We evaluate this contention after setting forth the applicable standard of review.
A. Standard of Review
We employ a two-tiered standard of review when evaluating a challenge to a ruling on a motion to suppress evidence. First, "[w]e defer to the trial court's factual findings, express or implied, where supported by substantial evidence." (People v. Glaser (1995) 11 Cal.4th 354, 362.) Second, in determining if, on the facts so found, a seizure occurred, and whether that seizure was lawful, "we exercise our independent judgment." (Ibid.; People v. Nickleberry (1990) 221 Cal.App.3d 63, 68.) On appeal we are required to consider the record in "the light most favorable" to the judgment below, and " 'all factual conflicts must be resolved in the manner most favorable to the [superior] court's disposition on the [suppression] motion.' " (People v. Woods (1999) 21 Cal.4th 668, 673 (Woods); In re Arturo D. (2002) 27 Cal.4th 60, 77.)
B. Winston Was Not Seized in Violation of the Fourth Amendment
Winston contends he was seized unlawfully when Detective Brogdon approached him and requested identification because Brogdon lacked a reasonable suspicion that Winston had committed or was committing any crime as would be required to justify any seizure. We disagree.
Until Detective Brogdon observed marijuana in Winston's briefcase and subsequently arrested him, the encounter with Winston was a " ' " 'consensual encounter,' " ' " which " ' "may properly be initiated by police officers even if they lack any 'objective justification.' " ' " (People v. Hughes (2002) 27 Cal.4th 287, 327.) Brogdon testified that when he first made contact with Winston, he said "hello," and "asked him if I could speak with him"; Winston responded "sure or something to that effect."[1] Brogdon then "asked Mr. Winston if he had any identification"; Winston said he did, reached into his briefcase and began rummaging inside for his identification. When Winston did so, Brogdon, who was carrying a small flashlight, was able to "see in plain sight two plastic sandwich-type baggies with various quantities of marijuana." Brogdon testified he conducted his inquiry in a normal tone of voice and that Winston was cooperative.
In view of these facts, the trial court correctly ruled that Detective Brogdon's actions prior to Winston's arrest did not cross the line from a consensual encounter to a seizure. It is well established that a police officer, like any other individual, may approach someone in a public place and attempt to strike up a conversation, without implicating the Fourth Amendment. (See Florida v. Royer (1983) 460 U.S. 491, 497 ["law enforcement officers do not violate the Fourth Amendment by merely approaching an individual [in a] public place, by asking him if he is willing to answer some questions, [or] by putting questions to him if the person is willing to listen"]; INS v. Delgado (1984) 466 U.S. 210, 216.) The consensual nature of such an encounter is not altered by merely asking for identification the only additional action taken by Detective Brogdon. (United States v. Mendenhall (1980) 446 U.S. 544, 555 [the officers "requested, but did not demand to see the respondent's identification and ticket," and "[s]uch conduct without more, did not amount to an intrusion upon any constitutionally protected interest"]; Florida v. Royer, supra, at p. 501 [same]; cf. People v. Gonzales (1985) 164 Cal.App.3d 1194, 1197 ["the police officer . . . abridged no constitutional tenet by asking Gonzales for his driver's license and identification"]; see also United States v. Dunn (1987) 480 U.S. 294, 305 [use of flashlight to look in a barn "did not transform [officers'] observations into an unreasonable search within the meaning of the Fourth Amendment"]; Texas v. Brown (1983) 460 U.S. 730, 739-740 [plurality opinion noting that it is "beyond dispute" that the action of a police officer in shining his flashlight to illuminate the interior of a car, without probable cause to search the car, "trenched upon no right secured . . . by the Fourth Amendment"].)
Winston contends that because he was approached in a vehicle, the encounter should be considered a "traffic stop," which cannot lawfully be conducted absent a reasonable suspicion of unlawful activity. (See, e.g., People v. Durazo (2004) 124 Cal.App.4th 728, 731 ["traffic stops must be supported by articulable facts giving rise to a reasonable suspicion that the driver or a passenger has violated the Vehicle Code or some other law"].) This contention is without merit. While it is true that Winston was sitting in an SUV when he was approached, he was not involved in a "traffic stop." The testimony was undisputed that Winston voluntarily stopped his vehicle prior to encountering the detectives for reasons unrelated to any police activity. (Cf. U.S. v. Hendricks (7th Cir. 2003) 319 F.3d 993, 1001 [officer "did not effectuate a stop when he parked his patrol car fifteen feet behind the stolen car"; rather the defendant "drove to the gas station and parked the car out of her own free will"].) In addition, Winston points to no facts in the record to show that the detectives prevented him from leaving when they arrived. There was no testimony that the patrol car activated its lights or siren when it pulled into the parking lot, or that it was parked in a manner that blocked Winston's SUV, preventing it from leaving.[2] (See U.S. v. Williams (3d Cir. 2005) 413 F.3d 347, 352 [police officers did not seize defendant when they pulled up behind his parked van and walked over to the vehicle; "[t]he Fourth Amendment is simply not implicated by the police approaching the parked van"]; U.S. v. Hendricks, supra, at p. 999 [no seizure where officer approached a vehicle parked at gas station]; see also 4 LaFave, Search and Seizure (4th ed. 2004) 9.4(a), pp. 419-421 ["if an officer merely walks up to a person standing or sitting in a public place (or, indeed, who is seated in a vehicle located in a public place) and puts a question to him, this alone does not constitute a seizure," fns. omitted].)[3]
In sum, because there was no traffic stop and no seizure, Brogdon needed no objective justification to approach Winston and ask for identification. In voluntarily complying with that request, Winston opened a briefcase containing marijuana. Brogdon, upon viewing the marijuana,[4]had probable cause to arrest Winston for drug possession, and incident to that arrest, legal justification to search his vehicle. (See New York v. Belton (1981) 453 U.S. 454, 460 (Belton) ["when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile," including "the contents of any containers found within the passenger compartment," fns. omitted]; cf. U.S. v. Williams, supra, 413 F.3d at p. 353 & fn. 6 [finding no Fourth Amendment violation when officers approached parked van and then arrested occupant when he appeared to be discarding bags of marijuana, and subsequently conducted warrantless search of van].) As Brogdon's actions were thus lawful under the Fourth Amendment, the trial court properly denied Winston's suppression motion.
II
The Trial Court Did Not Abuse Its Discretion in Denying Winston's
Pitchess Motion
Winston contends that the trial court improperly denied his motion for discovery under Pitchess, supra, 11 Cal.3d 531. We analyze this contention after setting forth the pertinent procedural information.
A. Procedural Background
On July 14, 2004, Winston, serving as his own counsel, filed a Pitchess motion, seeking discovery from the personnel files of Detectives Brogdon and Gallivan, the two officers involved in the case. In a declaration accompanying the motion, Winston stated: "A substantial issue in the trial of this case may be illegal search and seizure by the officers involved due to dishonesty, false arrest and the fabrication for [sic] charges or evidence on the part of the officers involved." On August 16, Winston filed his motion to suppress the evidence seized from his vehicle. The Pitchess motion was denied without prejudice on September 1, 2004. The suppression motion was denied on September 2, after the magistrate judge heard testimony regarding the search from Detectives Brogdon and Gallivan and from Winston, at a combined preliminary hearing and Penal Code section 1538.5 hearing.
On September 27, 2004, Winston filed a sealed declaration in support of his Pitchess motion. In the sealed declaration, which referenced testimony from the suppression hearing, Winston stated "the arresting officers wrote the police report . . . to conform to probable cause and a lawful[] warrantless arrest." Winston claimed that a review of personnel files would provide "impeachment evidence" that the "alleged marijuana pipe and marijuana" were found in "plain view" by Officer Brogdon.
The trial court considered the renewed Pitchess motion on November 5, 2004. At the hearing, Winston argued that "as contended in the motion, the officer had this individual on a bicycle. He found some drugs. And with no probable cause whatsoever, he came and searched my vehicle he alleged in plain sight . . . . My contention is that after the fact of the search and when he got to writing the report is when he established his probable cause."[5] The court denied the Pitchess motion on the ground that Winston had not alleged sufficient cause for an in camera review of the detective's personnel files.[6]
B. The Trial Court Did Not Abuse Its Discretion in Denying the Pitchess Motion
Winston contends that the trial court's denial of his Pitchess motion was erroneous, requiring reversal of his convictions. We disagree.
A defendant is entitled to discovery of a police officer's confidential personnel records if those files contain information that is potentially relevant to the defense. (Pitchess, supra, 11 Cal.3d at pp. 537-538; Evid. Code, 1043-1045.) To exercise this right, a defendant must file a motion demonstrating good cause for the discovery which, if granted, results first in an in camera court review of the records and subsequent disclosure to the defendant of information "relevant to the subject matter involved in the pending litigation." (Evid. Code, 1045, subd. (a).)
There is a " 'relatively low threshold' " for establishing the good cause necessary to compel in camera review by the court. (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1019 (Warrick).) Nevertheless, a defendant is not entitled to even an in camera review of police personnel files unless he first " 'establish[es] a plausible factual foundation' " for the defense asserted. (Id. at p. 1025.) The defendant "must present . . . a specific factual scenario of officer misconduct that is plausible when read in light of the pertinent documents." (Ibid.) A scenario sufficient to establish a plausible factual foundation "is one that might or could have occurred. Such a scenario is plausible because it presents an assertion of specific police misconduct that is both internally consistent and supports the defense proposed to the charges." (Id. at p. 1026.)
"Trial courts are granted wide discretion when ruling on motions to discover police officer personnel records." (People v. Samayoa (1997) 15 Cal.4th 795, 827; People v. Lewis and Oliver (2006) 39 Cal.4th 970, 992 [reviewing trial court's ruling that no in camera review necessary under Pitchess for abuse of discretion].) Consequently we may reverse on this ground only if the party appealing the trial court's ruling demonstrates that the court abused its discretion.
In the instant case, we conclude that Winston has failed to carry his burden of showing an abuse of discretion. At the outset, we note that Winston's initial Pitchess motion was properly denied because it did not contain "a specific factual scenario of officer misconduct" (Warrick, supra, 35 Cal.4th at p. 1025, italics added), but instead stated only that an "issue" at "trial" "may be illegal search and seizure by the officers involved due to dishonesty, false arrest and the fabrication for [sic] charges or evidence on the part of the officers involved." (See People v. Collins (2004) 115 Cal.App.4th 137, 151 [affirming denial of Pitchess motion without in camera review where "defendant's declaration merely made general allegations of misconduct against [the officers] without alleging any facts that provided reason to believe the misconduct had occurred"].)
When Winston later renewed his Pitchess motion he remedied this problem by including a specific factual scenario of officer misconduct that was pertinent to a defense, alleging that after the detectives found drugs on Lavigne, Detective Brogdon had a hunch there might also be drugs in Winston's SUV and thus fabricated a legal justification for a search. The trial court, however, did not abuse its discretion in determining that the scenario suggested by Winston was not plausible i.e., a situation "that might or could have occurred" in light of the evidence already developed during the proceedings on Winston's suppression motion.[7] (Warrick, supra, 35 Cal.4th at p. 1026.)
The only specific allegation of officer misconduct contained in Winston's Pitchess motion relevant to the asserted defense of an unlawful search was that Brogdon fabricated "probable cause" to search the car, i.e., that he lied about seeing marijuana in plain view prior to his search of the car.[8] (Warrick, supra, 35 Cal.4th at p. 1026; see Belton, supra, 453 U.S. at p. 460 [as long as there is probable cause for an arrest of an occupant of an automobile, no further justification is needed to search vehicle incident to that arrest].) Winston's allegation on this central point was fatally undermined, however, by his own testimony and argument at the suppression hearing, evidence the trial court could have considered in determining plausibility.
Winston testified at the suppression hearing that while he was looking for his identification in the briefcase, Brogdon told him: "If that's marijuana, then don't worry about it. It's no big deal."[9] Winston repeated this testimony later in his argument at the hearing, emphasizing: "I do recall him saying to me, 'If that is marijuana, then don't worry about it.' " Winston contended only, "I never admitted to anything being marijuana, so I would assume that he was speculating thatit was marijuana." (Italics and underscoring added.) This testimony essentially conceded the fact that Brogdon viewed marijuana in Winston's briefcase prior to arresting him and searching his vehicle thus establishing the legality of the search under Belton. Consequently, Winston's mere allegation in his Pitchess motion that Brogdon fabricated this fact (which might under other circumstances be sufficient to require in camera review) was not sufficient, in light of Winston's own contrary statements, to demonstrate a plausible scenario of officer misconduct.
For Winston's argument to be "internally consistent" in light of the pertinent information before the trial court, as required under Warrick, Winston was obligated to offer some explanation for the contradiction between his own sworn testimony and argument at the suppression motion and his assertion of misconduct in support of his Pitchess motion. (Warrick, supra, 35 Cal.4th at p. 1026.) Because Winston failed to do so, the trial court did not abuse its discretion in concluding that the allegations of police misconduct were not sufficiently plausible to require in camera Pitchess review. (See People v. Thompson (2006) 141 Cal.App.4th 1312, 1318-1319 ["Warrick permits courts to apply common sense in determining what is plausible, and to make determinations based on a reasonable and realistic assessment of the facts and allegations"]; cf. Warrick, at p. 1025 ["What the defendant must present is a specific factual scenario of officer misconduct that is plausible when read in light of the pertinent documents"].)
III
There Is Sufficient Evidence to Support the Jury's Conviction for
Transporting Methamphetamine
Winston argues that because he was arrested in a parked car, the evidence was insufficient to support the jury's verdict that he "transported" the methamphetamine found in his briefcase. We disagree.
Due to the primacy of the jury's role in evaluating witness testimony and drawing an ultimate conclusion as to the defendant's guilt or innocence, our role in reviewing a jury verdict for sufficiency of evidence is a limited one. "[W]e review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence that is, evidence that is reasonable, credible and of solid value from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Snow (2003) 30 Cal.4th 43, 66 (Snow).) Reversal is not warranted "unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].' " (People v. Bolin (1998) 18 Cal.4th 297, 331.)
Our review of the record here leads us to conclude that, viewing "the whole record in the light most favorable to the judgment below," there was sufficient evidence for the jury to conclude that Winston transported the methamphetamine found in his SUV.
"[T]o satisfy the element of 'transportation' required by Health and Safety Code section 11379, the evidence need only show that the vehicle was moved while under the defendant's control." (People v. Emmal (1998) 68 Cal.App.4th 1313, 1318.) Here, the evidence permitted a reasonable inference that Winston drove his SUV containing methamphetamine into the parking lot where he was arrested, and consequently that a vehicle containing methamphetamine "moved while under [Winston's] control." (Ibid.)
The evidence relevant to the transportation charge presented by the prosecution consisted of the following. The police encountered Winston sitting in the driver's seat of an SUV with its engine running and its lights on. The SUV was parked in a parking lot, after midnight, at a strip mall where all the stores were closed. Winston's sole companion was a person on a bicycle. A briefcase containing a significant quantity of methamphetamine was located in the rear of the SUV, and also contained packaging materials, a price list for methamphetamine, and letters and bills addressed to Winston. There was also a digital scale, and raw materials for manufacturing more methamphetamine (27 packages of Sudafed) in the vehicle. The briefcase containing the methamphetamine was locked and Winston later refused to provide the combination to open it, stating that it contained personal information.
There were two plausible conclusions to be drawn from the prosecution's evidence: (1) Winston drove the SUV with the methamphetamine into the parking lot and was, thus, guilty of transporting it; or (2) Winston had recently received the methamphetamine from the person on the bicycle (or another source) and had not transported it. As the jury reasonably could have reached the first conclusion, the fact that the second conclusion was also plausible does not invalidate the verdict. " ' "Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court which must be convinced of the defendant's guilt beyond a reasonable doubt." ' " (Snow, supra, 30 Cal.4th at p. 66.) Our role is simply to determine whether the conclusion reached by the jury is supported by substantial evidence, and in light of the circumstances of this case, we are bound to conclude that it was.
IV
Reversal Is Not Warranted Base on the Trial Court's Response to the Jury's Inquiry
Regarding the Lawfulness of the Search
Winston contends that the trial court erred in informing the jurors in response to a jury note that the court had already decided the issues relating to the legality of the search. We evaluate this contention after setting forth the pertinent factual background.
A. Pertinent Factual Information
During their deliberations, the jury sent the judge a note asking the following:
"1. Can we consider whether or not the officer had reasonable or probable cause to search the vehicle[?]
"2. Is an officer permitted to search a briefcase which purportedly has attorney client privileged information?
"3. Does someone who is not an attorney (i.e. a paralegal) have the right to invoke [a]ttorney client privilege?
"4. If the officer did not see the pipe would the officer have had the right to have asked to see the defendant's I.D.?"
After consulting with the parties, the trial court responded to the note with the following instruction:
"In response to questions 1 through 4, these raise legal issues already decided by the Court, and are not for your decision as judges of the fact [sic] in determining whether the evidence proves to you, beyond a reasonable doubt, the guilt of Mr. Winston of each of the charges. The Court is not expressing any opinion on the positions argued to you by the parties."
B. The Trial Court's Response to the Jury's Note Does Not Warrant Reversal
Winston argues that the trial court erred by telling the jury that the issues raised " 'have already been decided' " and contends reversal is thus required because "the logical inference from the court's response is that . . . the officers acted appropriately and lawfully with regard to the search," which "effectively destroyed appellant's sole defense that the officers planted evidence and fabricated their reports." We disagree.
"The court has a primary duty to help the jury understand the legal principles it is asked to apply." (People v. Beardslee (1991) 53 Cal.3d 68, 97 (Beardslee); Pen. Code, 1138 [requiring court to instruct the jury pursuant to jury request "on any point of law arising in the case"].) The trial court, consequently, must respond to jury notes and, as with any instruction, its response " 'should contain a principle of law applicable to the case, expressed in plain language, indicating no opinion of the court as to any fact in issue.' " (People v. Wright (1988) 45 Cal.3d 1126, 1135 (Wright).) In addition, "the correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction." (People v. Burgener (1986) 41 Cal.3d 505, 538-539.)
An appellate court cannot set aside a judgment on the basis of instructional error unless, after an examination of the entire record, the court concludes that the error has resulted in a miscarriage of justice. (Cal. Const., art. VI, 13; Beardslee, supra, 53 Cal.3d at p. 97.) A miscarriage of justice occurs only when it is reasonably probable that the jury would have reached a result more favorable to the appellant absent the error. (People v. Moore (1996) 44 Cal.App.4th 1323, 1331 (Moore), citing People v. Wharton (1991) 53 Cal.3d 522, 571-572 & fn. 10.)
Here, Winston concedes that the trial court's instruction was a correct statement of both the law and facts.[10] Consequently, the only basis for reversal in the instant case would be that the trial court's response impermissibly indicated an " 'opinion of the court as to a[] fact in issue.' " (Wright, supra, 45 Cal.3d at p. 1135; Moore, supra, 44 Cal.App.4th at p. 1331.)
We need not determine if the trial court's response was erroneous on this ground, however, because even if the trial court's response could be construed as improperly conveying an opinion on a fact at issue (the police officer's behavior), any such error was not sufficiently prejudicial to require reversal. (Cal. Const., art. VI, 13.)[11] In fact, any prejudice from the error asserted by Winston was immediately dispelled by the trial court's concluding statement in the very instruction that Winston contends was erroneous. The trial court, at the end of its response to the jurors' note, explicitly informed the jury that it was "not expressing any opinion on the positions argued to you by the parties." Thus, Winston's contention that the jury necessarily understood the court's comments to implicitly disparage Winston's defense is significantly undermined by the court's explicit comment that it was doing no such thing. It is axiomatic that on appeal we are required to "presume that jurors comprehend and accept the court's directions." (People v. Mickey (1991) 54 Cal.3d 612, 689, fn. 17; People v. Mendoza (1974) 37 Cal.App.3d 717, 725 ["We must presume that the jury accepted the plain meaning of the instructions"].) In addition, the trial court also instructed the jury generally that it should consider its instructions as a whole (CALJIC No. 1.01), that the jury should not take any cue from the judge in rendering its verdict (CALJIC No. 17.30), and that it should "not be influenced by mere sentiment [or] conjecture" but must "base [its] decision on the facts and the law" (CALJIC No. 1.00). Evaluating the entirety of the jury's charge, then, even if the trial court's response to the jury note could be read as improperly implying that the officers acted properly, any such error was not sufficiently prejudicial to constitute a miscarriage of justice. Consequently, reversal is not warranted on this ground. (Cal. Const., art. VI, 13; Beardslee, supra, 53 Cal.3d at p. 97; Moore, supra, 44 Cal.App.4th at p. 1331.)[12]
V
The Trial Court Did Not Abuse Its Discretion in Declining to Strike a Strike
Winston challenges his sentence under the Three Strikes law, arguing that the trial court should have stricken two of his prior strikes because they were remote in time, and because his latest offenses were "neither serious nor violent and [he] has no history of . . . violence." We conclude that Winston fails to demonstrate an abuse of discretion, and thus reversal on this ground is not warranted.
A trial court may strike a finding under the Three Strikes law that a defendant has previously been convicted of a serious and/or violent felony on its "own motion or upon the application of the prosecuting attorney . . . in furtherance of justice." (Pen. Code, 1385, subd. (a); People v. Williams (1998) 17 Cal.4th 148, 158, citing People v. Superior Court (Romero), supra, 13 Cal.4th 497.) In determining whether to do so, the court "must consider whether, in light of the nature and circumstances of [the defendant's] 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 scheme's 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, supra, at p. 161.)
The trial court's "failure to dismiss or strike a prior conviction allegation is subject to review under the deferential abuse of discretion standard." (People v. Carmony (2004) 33 Cal.4th 367, 374.) In reviewing for abuse of discretion, we are guided by two fundamental precepts. First, " ' "[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary." ' " (Id. at p. 376.) Second, " ' " '[a]n appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge,' " ' " and consequently, the trial court's " ' "decision will not be reversed merely because reasonable people might disagree." ' " (Id. at p. 377.) Taken together, these two precepts establish the overarching principle on review that "a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (Ibid.)
We are unable to conclude that the standard for reversal is met in this case, primarily because of Winston's extensive prior record of criminal conduct. Winston has been continually in and out of the criminal justice system based on convictions for serious criminal offenses since 1975, with the only break in his criminality occurring during periods of incarceration. Prior to the instant offense (in which Winston was convicted of two felonies and a misdemeanor), Winston had been convicted of significant criminal offenses on at least 13 separate occasions. In addition, Winston has repeatedly been granted probation and parole, and repeatedly reoffended.[13]
Given this record of ongoing criminality, Winston can fairly be characterized as a "career criminal," the very type of offender that the Legislature, and the People, had in mind when they enacted the Three Strikes laws. (See People v. Strong (2001) 87 Cal.App.4th 328, 338 ["extraordinary must the circumstance be by which a career criminal can be deemed to fall outside the spirit of the very scheme within which he squarely falls once he commits a strike as part of a long and continuous criminal record, the continuation of which the law was meant to attack"].) Consequently, we cannot conclude that the trial court abused its discretion in concluding that Winston was not "outside the [Three Strikes] scheme's spirit, in whole or in part" in declining to strike any of his strikes. (People v. Williams, supra, 17 Cal.4th at p. 161.)
VI
Winston's Sentence Does Not Constitute Cruel and Unusual Punishment
Winston contends that his sentence amounts to cruel and unusual punishment under both the federal and state Constitutions because the potential life sentence imposed is disproportionate to the instant offenses of transportation of methamphetamine, possession of methamphetamine for sale, and possession of marijuana.
With respect to the federal Constitution, the Eighth Amendment, which forbids "cruel and unusual punishments," contains a " 'narrow proportionality principle' that 'applies to noncapital sentences.' " (Ewing v. California (2003) 538 U.S. 11.) In Ewing, the United States Supreme Court considered the constitutionality of a 25-year-to-life sentence for grand theft the theft of three golf clubs worth $1,200 under California's Three Strikes law. The Court emphasized that "[i]n weighing the gravity of Ewing's offense, we must place on the scales not only his current felony, but also his long history of felony recidivism." (Id. at p. 29.) The Court concluded that, in light of Ewing's "numerous misdemeanor and felony offenses," his having "served nine separate terms of incarceration" for "serious felonies including robbery and three residential burglaries" and his having "been convicted of [and] committed most of his crimes while on probation or parole," a life sentence for stealing golf clubs was not cruel and unusual. (Id. at p. 30.) Given that Winston's current offenses, and his prior record are, if anything, more egregious than those considered in Ewing, we must conclude under the authority of that case that Winston's potential life sentence, like that of the offender in Ewing, does not violate the federal Constitution.
The California Constitution also prohibits "cruel or unusual punishment" and we construe this provision separately from its counterpart in the federal Constitution.[14] (In re Lynch (1972) 8 Cal.3d 410, 424; Cal. Const. art. I, 17 ["Cruel or unusual punishment may not be inflicted or excessive fines imposed"].) A punishment may violate the California Constitution if "it 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, at p. 424.)
Here, Winston's punishment does not shock the conscience or otherwise offend fundamental notions of human dignity, because the punishment was imposed not merely for the current offenses, but also " 'because of his recidivism.' " (People v. Romero (2002) 99 Cal.App.4th 1418, 1432; People v. Stone (1999) 75 Cal.App.4th 707, 715 ["The basic fallacy of appellant's argument lies in his failure to acknowledge that he 'is not subject to a life sentence merely on the basis of his current offense but on the basis of his recidivist behavior. Recidivism in the commission of multiple felonies poses a manifest danger to society[,] justifying the imposition of longer sentences for subsequent offenses"].) In light of Winston's lengthy record of serious criminal offenses, a life sentence for his instant felony offenses as aggravated by that criminal record, does not constitute cruel or unusual punishment under the California Constitution.[15] (People v. Mantanez (2002) 98 Cal.App.4th 354, 359 ["When faced with recidivist defendants . . . , California appellate courts have consistently found the Three Strikes law is not cruel and unusual punishment"]; People v. Cluff (2001) 87 Cal.App.4th 991, 997 ["courts have determined that, as a general matter, the punishment imposed by California's Three Strikes law is not so disproportionate that it violates the prohibition against cruel or unusual punishment"].)[16]
VII
The Trial Court Erred in Failing to Conduct an Evidentiary Hearing Regarding
One of Winston's Prior Strikes
Winston contends that the trial court erred in failing to conduct an evidentiary hearing with respect to one of his prior strikes which he alleged had resulted from an unconstitutional conviction. We agree.
"[A] trial court, when sentencing a criminal defendant, may not rely on a prior felony conviction obtained in violation of the defendant's constitutional rights." (People v. Allen (1999) 21 Cal.4th 424, 429 (Allen).) To ensure that this right is respected, our Supreme Court in Sumstine, supra, 36 Cal.3d 909, set forth a specific procedure that applies when a defendant in a subsequent court proceeding "affirmatively allege[s] that at the time of [a] prior conviction he did not know of, or did not intelligently waive," his constitutional Boykin/Tahl rights.[17] (Sumstine, supra, 36 Cal.3d at p. 914.) Upon such an allegation, "the trial court must hold an evidentiary hearing" to resolve the question. (Allen, supra, 21 Cal.4th at p. 435.)[18]
In the instant case, the trial court failed to follow our Supreme Court's directive in Sumstine (and its more recent reaffirmance of the Sumstine procedures in Allen). At the hearing to prove Winston's prior convictions, the prosecutor stated he did "not have certified copies of" the 1982 robbery strike arising out of Alameda County, but had only obtained an "abstract of judgment for that case." The abstract of judgment represents that the conviction arose from a plea of guilty, but contains no indication of whether Winston's Boykin/Tahl rights were observed. Winston objected to consideration of the Alameda case as a prior strike, stating that with respect to that case, "I had no Boykin/Tahl rights whatsoever. I hadn't even begun to represent myself at that time and had no knowledge of ‑‑" The court then interjected, "All right. That objection is overruled."
The Attorney General contends that Winston's objection was properly overruled in this fashion because Winston failed to make an adequate Sumstine showing. The Attorney General is incorrect. Under Sumstine, to invoke the right to an evidentiary hearing, a defendant need merely "affirmatively allege[s] that at the time of his prior conviction he did not know of, or did not intelligently waive," his Boykin/Tahl rights at which point, "the court must hold an evidentiary hearing . . . to determine the truth of the allegation." (Sumstine, supra, 36 Cal.3d at p. 914.) It is clear from the record here that Winston made an affirmative allegation sufficient to invoke his rights under Sumstine, especially considering that the court interrupted Winston's allegations to summarily overrule his objection.[19]
In sum, the trial court erred when, in sentencing Winston, it considered a prior strike that was alleged to have been the result of an unconstitutional conviction without holding the required evidentiary hearing under Sumstine. As a consequence of that error, remand for resentencing is required.[20]
DISPOSITION
The judgment is reversed and remanded for resentencing; in all other aspects, the judgment is affirmed.
IRION, J.
WE CONCUR:
HALLER, Acting P. J.
O'ROURKE, J.
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[1] The court found the detective's testimony credible, and we are bound by that finding on appeal. (Woods, supra, 21 Cal.4th at p. 673.)
[2] In fact, the detectives testified that they stopped their patrol car 15 feet behind Winston's vehicle. Winston, in an extended argument on his renewed motion to suppress, made a reference that the patrol car "blocked [me] in," but as the trial court noted, this argument was not supported by the evidence.
[3] The cases that Winston relies on to establish that the encounter was not consensual but rather should be considered a detention requiring "reasonable suspicion" are easily distinguished as they involve either actual "stops" of a defendant or police commands, rather than requests for voluntary compliance, as occurred here. (See Brown v. Texas (1979) 443 U.S. 47, 52 [defendant was detained when he was "stopped and required to identify himself"]; People v. Roth (1990) 219 Cal.App.3d 211, 215 ["a detention occurred when [the officer] shined his spotlight on Roth, stopped the patrol car, both deputies got out, and [the officer] stood behind the car door, commanding Roth to approach so the deputy could speak to him"]; People v. Verin (1990) 220 Cal.App.3d 551, 556-557 [officer detained defendant "when he explicitly, unambiguously and authoritatively demanded that appellant and his companion 'Hold it. Police' "].)
[4] Brogdon testified at the suppression hearing that he had extensive experience and training with respect to the identification of controlled substances, including marijuana.
[5] Winston made a more comprehensive argument of officer misconduct along these lines during the suppression hearing, stating: "My contention is that they found a baggie of drugs on the individual on the bike. When they did that, they must have figured I must have been involved in drugs or something. I believe that was the real reason they wanted to go on a fishing expedition to justify that and . . . they did that by alleging the plain view . . . . "
[6] Winston later filed a "de novo Pitchess motion" on December 10, 2004, restating his allegations. The trial court again denied the motion, stating, "I've read the supporting documents and . . . that motion is denied. I still don't think you've come close to making the required showing." On March 15, 2005, the trial court held a hearing on Winston's renewed suppression motion and again denied that motion. (Pen. Code, 1538.5, subd. (i) ["the defendant shall have the right to renew or make the motion at a special hearing relating to the validity of the search or seizure which shall be heard prior to trial and at least 10 court days after notice to the people"].)
[7] There can be little question that the suppression hearing testimony was properly before the trial court in its consideration of the Pitchess motion as the materials submitted by the defense in support of the Pitchess motion relied on and referred to the suppression hearing testimony, and the sole defense raised in the Pitchess motion was that the search, which had already been ruled on, was unlawful. (Cf. Warrick, supra, 35 Cal.4th at p. 1025 [noting that "the trial court hearing a Pitchess motion will have before it defense counsel's affidavit, and in addition a police report, witness statements, or other pertinent documents" and will then "determine[] whether defendant's averments, '[v]iewed in conjunction with the police reports' and any other documents, suffice to 'establish a plausible factual foundation' for the alleged officer misconduct"].)
[8] Winston contends in his appellate brief that in his Pitchess filing he also "alleged the officers planted the evidence seized from his vehicle," but the only record citation he provides for this contention is to his declaration, which contains only the generic assertion described above that there "may be" an issue of, inter alia, "fabrication for [sic] charges or evidence." As noted above, this allegation was not sufficiently specific to trigger any Pitchess review.
[9] Winston also admitted at the suppression hearing that "there w[ere] two marijuana pipes. I believe they were both on the floor of the SUV in the passenger seat."
[10] On appeal, Winston states: "It's true that the issues the jury inquired about were legal issues not for their determination and were issues already decided by the court."
[11] We do not agree with Winston's contention that the trial court's response deprived him of his right to present a defense and was thus of federal constitutional magnitude, requiring either automatic reversal or harmless error analysis under Chapman v. California (1967) 386 U.S. 18. Winston was not deprived of any opportunity to present his defense to the jurors. (See, e.g., Crane v. Kentucky (1986) 476 U.S. 683, 690 ["the Constitution guarantees criminal defendants 'a meaningful opportunity to present a complete defense,' " and that right was violated where the court "exclude[s] competent, reliable evidence bearing on the credibility of a confession when such evidence is central to the defendant's claim of innocence"].) The only case cited by Winston in support of his contention that such error occurred here is easily distinguishable. In Powell v. Galaza (9th Cir. 2003) 328 F.3d 558, 564, the Ninth Circuit determined that a trial court's instruction that the defendant had admitted the sole disputed element
