P. v. Simon

Filed 4/19/07 P. v. Simon CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from the Superior Court of San Bernardino. Raymond L. Haight III, Judge. Affirmed.

Brett Harding Duxbury, 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, Senior Assistant Attorney General, David Delgado-Rucci, and Ronald A. Jakob, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant James Darwin Simon, upon spotting an approaching police car, tried to jettison a package of rock cocaine. The police officer in the car, however, could see this action quite clearly. He retrieved the cocaine and arrested defendant.

Defendant was found guilty of possession of a controlled substance. (Health & Saf. Code,  11350, subd. (a).) Five 1-year prior prison term allegations (Pen. Code,  667.5, subd. (b)) and two strike prior allegations (Pen. Code,  667, subds. (b)-(i), 1170.12) were found true. Defendant was sentenced to a total of 30 years to life in prison.

In this appeal, defendant contends:

1. Giving CALJIC No. 2.06 (Efforts to Suppress Evidence) violated due process because this instruction is argumentative and, on the facts of this case, irrational.

2. The trial court erred by denying defendants Romero motion.^[1]

3. The sentence constituted cruel and unusual punishment.

We find no error. Hence, we will affirm.

I

FACTUAL BACKGROUND

On March 2, 2005, around 1:10 a.m., Officer Steven Reed was dispatched to an address in Fontana, in response to a call from a concerned citizen regarding possible drug activity.^[2]

When he arrived, Officer Reed, heading south, noticed a Cadillac parked on the east side, facing north. A group of eight to 10 people was standing behind the Cadillac.

Officer Reed pulled up and parked on the wrong side of the street, nose-to-nose with the Cadillac. The two cars ended up about 10 feet apart. As he was pulling up, he turned on his spotlight and aimed it at the Cadillac. Defendant was sitting in the drivers seat. The front passenger-side door was open; a second man (later identified as Mark Jones) was leaning into it, talking to defendant.

Jones stepped back from the car. Officer Reed then saw defendant, using his right hand, throw something out the passenger door. It landed on the sidewalk. Officer Reed got out of his patrol car and picked it up. It turned out to be about 10 cocaine rocks, totaling 2.34 grams, wrapped in plastic wrap.

As Officer Reed walked up to the car, he realized that a third man was sitting in the back seat. This man was elderly, lethargic, nonresponsive and somewhat incoherent, but he did not appear to be under the influence. Defendant, Jones, and the elderly man were searched, but none of them was in possession of any more drugs.

After arresting and Mirandizing defendant, Officer Reed asked if he wanted to talk to him about the cocaine. Defendant smiled and said, in a jocular way, It must be yours. You picked it up.

It would have been impossible to fingerprint either the plastic wrap or the rocks.

II

THE CONSTITUTIONALITY OF CALJIC NO. 2.06

(EFFORTS TO SUPPRESS EVIDENCE)

Defendant contends that CALJIC No. 2.06 (Efforts to Suppress Evidence) violates due process in this case, for two reasons: first, because it is irrational, and second, because it constitutes improper comment on the evidence.

CALJIC No. 2.06, as given by the trial court, provides: If you find that a defendant attempted to suppress evidence against himself in any manner, such as by concealing evidence, this attempt may be considered by you as a circumstance tending to show consciousness of guilt. However, this conduct is not sufficient by itself to prove guilt, and its weight and significance, if any, are for you to decide.

[A] permissive inference violates the Due Process Clause only if the suggested conclusion is not one that reason and common sense justify in light of the proven facts before the jury. [Citations.] (People v. Yeoman (2003) 31 Cal.4th 93, 131, quoting Francis v. Franklin (1985) 471 U.S. 307, 314-315 [105 S.Ct. 1965, 85 L.Ed.2d 344].) Defendant therefore argues that, on the facts of this case, this instruction was irrational because a juror could not find that defendant tried to suppress evidence by throwing away the cocaine without first finding that defendant was in possession of the cocaine ‑‑ [i]n other words, CALJIC No. 2.06 could only be applicable if the prosecution case on possession was established. But not so.

The essential elements of unlawful possession of a controlled substance are dominion and control of the substance in a quantity usable for consumption or sale, with knowledge of its presence and of its restricted dangerous drug character. Each of these elements may be established circumstantially. [Citations.] (People v. Martin (2001) 25 Cal.4th 1180, 1184, quoting People v. Camp (1980) 104 Cal.App.3d 244, 247-248.)

Admittedly, in order to find that defendant suppressed evidence, the jury did have to find that defendant had dominion and control of the cocaine, i.e., that it was he who discarded it, not someone else. However, it did not have to find that he was aware of its presence or of its character. It merely had to find that, upon seeing Officer Reed, he discarded it. At that point, the jury could infer that defendant was conscious of his guilt; and from that, it could further infer that he had knowledge of the presence and of the character of the cocaine. We perceive nothing circular or irrational about this reasoning.

Next, defendant argues that the instruction is unduly argumentative. He claims that an instruction is argumentative if it singles out particular evidence, citing State v. Cathey (1987) 241 Kan. 715 [741 P.2d 738], overruled on other grounds in State v. Schoonover (2006) 281 Kan. 453, 495 [133 P.3d 48]. Cathey, however, does not mention due process; its holding on this point appears to be premised exclusively on state law. (See Cathey, at pp. 730-731; see also State v. McCorgary (1975) 218 Kan. 358, 365 [543 P.2d 952].) Whatever the law may be in Kansas or elsewhere, in California, an instruction is argumentative if it is of such a character as to invite the jury to draw inferences favorable to one of the parties from specified items of evidence. [Citation.] (People v. Panah (2005) 35 Cal.4th 395, 486, italics added, quoting People v. Mincey (1992) 2 Cal.4th 408, 437, quoting People v. Gordon (1990) 50 Cal.3d 1223, 1276.) Accordingly, the California Supreme Court has repeatedly rejected this particular challenge to CALJIC No. 2.06, observing that [t]he cautionary nature of the instruction[] benefits the defense, admonishing the jury to circumspection regarding evidence that might otherwise be considered decisively inculpatory. [Citations.] (People v. Holloway (2004) 33 Cal.4th 96, 142, quoting People v. Jackson (1996) 13 Cal.4th 1164, 1224, and cases cited.)

We therefore conclude that the trial court did not err by giving CALJIC No. 2.06.

III

THE IMPOSITION OF A THREE-STRIKES SENTENCE

Defendant contends that the trial court erred by denying his Romero motion. Defendant also contends that, on the facts of this case, the sentence of 30 years to life constituted cruel and unusual punishment.

A. Additional Factual Background.

At the time of sentencing, defendant was 55 years old. By his own admission, he had been a drug addict for 37 years off and on. His criminal record included:

1. A 1972 conviction for attempted second degree murder.

2. A 1977 conviction for robbery, with a great bodily injury enhancement.

In this robbery, defendant opened the door of a car in the parking lot of a fast-food restaurant and snatched the purse of the female occupant. Even though she did not resist, he then grabbed a tire iron and hit her in the head, over and over again. She believed that the only reason he did not kill her was that he did not have good leverage . . . .

3. A June 1989 misdemeanor conviction for inflicting corporal injury on a cohabitant.

4. A December 1989 misdemeanor conviction for inflicting corporal injury on a cohabitant.

5. A 1990 felony conviction for unlawful possession of a firearm.

6. A 1992 felony conviction for inflicting corporal injury on a cohabitant.

Defendant denied actually committing this offense. (His denial was ambiguous; it may or may not have also included his two earlier convictions for the same offense). He testified that his wife just wanted to get [him] in jail to keep [him] from being with whoever [he] wanted to be with. He claimed he pleaded guilty because was afraid that, if the police discovered that he and his wife were using drugs and drinking, they would lose custody of their children.

7. A 1993 felony conviction for unlawful possession of a firearm.

Defendant minimized the significance of this and his earlier conviction for unlawful possession of a firearm, testifying:  . . . I dont believe its a crime. He also stated that the firearm wasnt used in commission of a crime. . . . And I think every American citizen have a firearm [sic]. If you dont, somethings wrong with you.

8. A January 2000 misdemeanor conviction for being under the influence of a controlled substance.

9. A October 2000 misdemeanor conviction for drunk driving.

10. A November 2000 felony conviction for possession of a controlled substance.

Defendant denied actually committing this offense. He testified: [T]he dude come to my car just to sell me some drugs. He dropped some drugs in my car. I reached over and knocked them out of my car, and the police said they saw me throw some things . . . . They was not my drugs.

For this conviction, defendant had been facing a sentence of 25 years to life. The trial court (per Judge Blackwell), however, struck one of his strike priors and sentenced him to four years in prison.

11. A 2004 felony conviction for possession of a controlled substance. For reasons that do not appear in the record, defendants strike priors were not alleged.

B. Additional Procedural Background.

The trial court denied defendants Romero motion. It explained: [T]he underlying crime, that crime standing by itself of course wouldnt justify a life sentence.

 . . . But that crime does not stand alone. . . . His background when you look at it, its a lifetime of criminal activity, over 30 years. . . . Admittedly it seems to be a transition from violent crimes to drug offenses, but theres always the potential for violent crimes when youre involved in drug activity.

And Mr. Simon was on the street, as I viewed the evidence in this case, involved with drug dealers and people using drugs and just generally involved in a situation that would evolve into criminal activity, quite quickly. So his overall background is not positive. I dont think the fact that over the years he seems to have become a drug addict in it [sic]of itself is enough to neutralize all the other factors.

The nature and circumstances of his prior conviction[s] is [sic] really bad for Mr. Simon. Theyve been recited many times . . . . [] . . . []

 . . . In 2002 Mr. Simon could have been sentenced to 25 years to life. He wasnt. He was given a break by a judge then, and he did not take advantage of that break at all.  [The] three strikes statute is a luciferous [probably sc. recidivist] statute. Its [sic] ultimate intent is to protect the public. Im completely convinced that if Mr. Simon stays in society and goes back out in society, he will be a danger to society. Theres always the potential for violence. He will continue to commit crimes.

I do not find that after reviewing all the evidence in this motion that his conviction and his prior convictions are all outside the spirit and scope of the three strikes law.

C. The Denial of Defendants Romero Motion.

In Romero, the Supreme Court held that a trial court has discretion to dismiss three-strikes prior felony conviction allegations under Penal Code section 1385. (People v. Superior Court (Romero), supra, 13 Cal.4th at pp. 529-530.) The touchstone of the analysis is whether, 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. [Citation.] (People v. Carmony (2004) 33 Cal.4th 367, 377, quoting People v. Williams (1998) 17 Cal.4th 148, 161.)

[A] trial courts refusal or failure to dismiss or strike a priorconviction allegation under section 1385 is subject to review for abuse of discretion. (People v. Carmony, supra, 33 Cal.4th at p. 375.) [A] trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it. (Id. at p. 377.)

Because the circumstances must be extraordinary . . . 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 [citation], the circumstances where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme must be even more extraordinary. (People v. Carmony, supra, 33 Cal.4th at p. 378, quoting People v. Strong (2001) 87 Cal.App.4th 328, 338.)

This case is a far cry from the extraordinary case that Carmony hypothesized. Quite the contrary, it is very much a garden variety three strikes case. Defendants lengthy recidivist criminal history brings him squarely within the spirit as well as the letter of the three strikes law.

Defendant argues that his two strike priors were remote ‑‑ they date back to 1972 and 1977, respectively. Since then, however, he had suffered an additional five felony and four misdemeanor convictions. The convictions for inflicting corporal injury on a cohabitant, though not strikes, did involve violence. The convictions for unlawful possession of a firearm presented a potential for violence ‑‑ particularly as defendant refused to recognize this as a crime at all, insisting that theres something wrong with any American citizen who does not have a firearm. The remoteness of the strikes was not controlling because defendant did not refrain from criminal activity during that span of time, and he did not add maturity to age. (People v. Williams, supra, 17 Cal.4th at p. 163.) The same is true of the fact that defendant was 55 years old and, hence, statistically less likely to continue committing crimes; clearly he had managed to beat the statistics.

Defendant also argues, as he did below, that his drug addiction is somehow mitigating. However, when a defendant has a drug addiction or substance abuse problem, where the defendant has failed to deal with the problem despite repeated opportunities, where the defendant shows little or no motivation to change his life style, and where the substance abuse problem is a substantial factor in the commission of crimes, the need to protect the public from further crimes by that individual suggests that a longer sentence should be imposed, not a shorter sentence. (People v. Reyes (1987) 195 Cal.App.3d 957, 963; accord, People v. Williams, supra, 17 Cal.4th at p. 163 [defendants failure to follow through in efforts to bring his substance abuse problem under control favored denial of Romero motion].)

Defendant relies on People v. Bishop (1997) 56 Cal.App.4th 1245. There, however, the trial court granted the defendants Romero motion (Bishop, at pp. 1248-1249); the appellate court merely held that this was not an abuse of discretion. (Id. at pp. 1250-1251.) Nothing in Bishop suggests that it would have been an abuse of discretion to deny the motion. To the contrary, the court acknowledged that [e]very defendant who appears for sentencing with two strikes against him is deserving of a prison sentence of at least twenty-five years to life. (Id. at p. 1250.)

We therefore conclude that the trial court did not abuse its discretion by denying defendants Romero motion.

D. Cruel and Unusual Punishment.

1. Analysis Under the Federal Constitution.

The United States Supreme Court has upheld three strikes sentencing, even when applied, as here, to a person convicted of a nonviolent third strike. In Ewing v. California (2003) 538 U.S. 11 [123 S.Ct. 1179, 155 L.Ed.2d 108], the defendant had four strike prior convictions (id. at p. 19), plus a number of nonstrike priors. (Id. at pp. 18-19.) While still on parole, he stole three golf clubs, worth a total of $1,200. (Id. at pp. 17-18.) As a result, he was sentenced under Californias three strikes law to 25 years to life. (Id. at p. 20.)

A plurality of three justices held that this did not constitute cruel and unusual punishment. They explained: When the California Legislature enacted the three strikes law, it made a judgment that protecting the public safety requires incapacitating criminals who have already been convicted of at least one serious or violent crime. Nothing in the Eighth Amendment prohibits California from making that choice. (Ewing v. California, supra, 538 U.S. at p. 25 (plur. opn. of OConnor, J.).) They noted: In weighing the gravity of Ewings 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 plurality concluded: Ewings sentence is justified by the States public-safety interest in incapacitating and deterring recidivist felons, and amply supported by his own long, serious criminal record. (Id. at pp. 29-30, fn. omitted.)

Justices Scalia and Thomas, concurring in the judgment, would have held that the Eighth Amendment does not require proportionality at all. (Ewing v. California, supra, 538 U.S. at pp. 31 (conc. opn. of Scalia, J.), 32 (conc. opn. of Thomas, J.).) Accordingly, a majority of the Supreme Court not only upheld Ewings sentence, but would have upheld a three strikes sentence in all but an exceedingly rare case. (Id. at p. 21, quoting Rummel v. Estelle (1980) 445 U.S. 263, 272 [100 S.Ct. 1133, 63 L.Ed.2d 382]; see also Lockyer v. Andrade (2003) 538 U.S. 63, 73-76 [123 S.Ct. 1166, 155 L.Ed.2d 144].)

This is not such a case. As we already held in part III.C, ante, defendant falls squarely within both the letter and the spirit of the three strikes law. Ewing teaches us that the Eighth Amendment does not prohibit California from choosing to incapacitat[e] such a recidivist offender. (Ewing v. California, supra, 538 U.S. 25 (plur. opn. of OConnor, J.).) We conclude that defendants sentence is not cruel and unusual punishment under the federal Constitution.

2. Analysis Under the State Constitution.

Preliminarily, the People argue that defendant waived his cruel and unusual punishment contention by failing to raise it below. Ordinarily, we would agree. (People v. Kelley (1997) 52 Cal.App.4th 568, 583; People v. DeJesus (1995) 38 Cal.App.4th 1, 27; People v. Ross (1994) 28 Cal.App.4th 1151, 1157, fn. 8.) However, despite what would otherwise be a waiver, he is allowed to argue that the asserted error in denying the Romero motion had the additional legal consequence of violating due process. (See People v. Yeoman, supra, 31 Cal.4th at p. 117 [no useful purpose is served by declining to consider on appeal a claim that merely restates, under alternative legal principles, a claim otherwise identical to one that was properly preserved by a timely motion that called upon the trial court to consider the same facts and to apply a legal standard similar to that which would also determine the claim raised on appeal]; see also People v. Partida (2005) 37 Cal.4th 428, 433-439.) Defendants cruel and unusual punishment argument is essentially identical to his argument that the trial court erred by denying his Romero motion (indeed, he repeats portions of the two arguments word for word). Hence, we may consider it.

Under the state constitutional standard, we must examine the circumstances of the crime, as well as the defendants personal characteristics. [Citation.] If, given these factors, the penalty imposed is grossly disproportionate to the defendants individual culpability [citation], so that the punishment shocks the conscience and offends fundamental notions of human dignity [citation], [we] must invalidate the sentence as unconstitutional. [Citation.] (People v. Boyer (2006) 38 Cal.4th 412, 488, quoting People v. Lucero (2000) 23 Cal.4th 692, 739-740, quoting People v. Dillon (1983) 34 Cal.3d 441, 479 and People v. Cox (1991) 53 Cal.3d 618, 690.)

As long as a punishment is proportionate to the defendants individual culpability (intracase proportionality), there is no requirement that it be proportionate to the punishments imposed in other similar cases (intercase proportionality). (People v. Stanley (2006) 39 Cal.4th 913, 966-967.) Accordingly, the cruel-and-unusual determination may be based solely on the offense and the offender. (People v. Ayon (1996) 46 Cal.App.4th 385, 399, disapproved on other grounds in People v. Deloza (1998) 18 Cal.4th 585, 600, fn. 10; see, e.g., People v. Dillon, supra, 34 Cal.3d at pp. 479, 482-488; People v. Young (1992) 11 Cal.App.4th 1299, 1308-1311; People v. Weddle (1991) 1 Cal.App.4th 1190, 1198-1200.)

Here, the outstanding characteristic of both the offense and the offender is recidivism. In addition to his strike priors, defendant had numerous prior felony and misdemeanor convictions. He began his criminal career at the age of 22, and he persisted in it throughout the ensuing 34 years; most of his crime-free intervals can be chalked up to incarceration. Finally, he had multiple parole violations. Thus, defendant has manifested a persistent inability to conform his conduct to the requirements of the law. Based on such chronic recidivism, a three strikes sentence of 25 years to life ‑‑ even for a nonviolent drug offense ‑‑ is not constitutionally proscribed. (People v. Stone (1999) 75 Cal.App.4th 707, 715.)

We therefore conclude that the sentence in this case did not constitute cruel and unusual punishment.

IV

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RICHLI

J.

We concur:

McKINSTER

Acting P.J.

MILLER

J.

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^[1] A Romero motion is a motion to dismiss one or more strike priors in the interest of justice under Penal Code section 1385. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497.)

^[2] The caller mentioned four men, as well as a red Ford Expedition and a green Honda Accord. This statement, however, was not introduced as evidence of its truth. When Officer Reed arrived, no such vehicles were at the scene.