P. v. Palacios
Filed 5/30/06 P. v. Palacios CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, Plaintiff and Respondent, v. DAVID ROBLES PALACIOS, Defendant and Appellant. | 2d Crim. No. B183780 (Super. Ct. No. 1010506) (Santa Barbara County) |
Appellant David Robles Palacios was convicted after a jury trial of possession for sale of a controlled substance (Health & Saf. Code, § 11351) (count 1); misdemeanor possession of a hypodermic needle or syringe (Bus. & Prof. Code, § 4140) (count 2); and use or being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a)) (count 3).
The jury found that Palacios had been convicted previously of two serious felonies within the meaning of the " Three Strikes" law, Penal Code sections 667, subdivision (e)(2)(A), and 1170.12, subdivision (c)(2)(A).[1] The jury also found that Palacios had been sentenced to three prior prison terms within the meaning of section 667.5, subdivision (b).
The trial court sentenced Palacios to 25 years to life on count 1, plus an additional two years for two prior prison terms,[2] for a total sentence of 27 years to life. The court imposed a concurrent six-month sentence on count 2, and a one-year concurrent sentence on count 3. Palacios was awarded 361 days of presentence custody credit on counts 2 and 3, consisting of 241 actual days and 120 days of conduct credit.
In this appeal, Palacios argues he was deprived of a fair trial because the court improperly excused a prospective juror for cause, the prosecutor committed Griffin error by commenting on his failure to testify, he failed to receive presentence custody credit for count 1, and his sentence constitutes cruel and unusual punishment.
We will order an amendment to the abstract of judgment regarding custody credits. Otherwise, we affirm.
STATEMENT OF FACTS
On March 9, 2000, Santa Barbara police officers were conducting surveillance of a black Acura parked near an apartment building. The officers had received information that someone on parole from Orange County, Palacios, was selling narcotics there.
The officers observed a woman come from the apartment building and get into the driver's seat of the Acura. Minutes later, Palacios came out of the building and got into the Acura's passenger seat.
One of the officers blocked the Acura with his vehicle. As he approached the Acura, the officer saw Palacios put something in his mouth. After Palacios was taken out of the Acura, he attempted to reach into his front right coin pocket before he was handcuffed. The officers searched his pocket and found three blue baggies containing a dark tarry substance.
Initially, Palacios denied living in the apartment building. Later he admitted living in apartment P and asserted that everything in the apartment belonged to him. The officers called the police dispatcher and confirmed that Palacios was on parole in Orange County with a search condition.
During a search of the apartment, the officers found syringes, a scale with residue on it, a spoon, blue baggies similar to the ones Palacios was carrying, and a small amount of marijuana. The officers found a metal box in a closet containing 11 additional blue baggies containing a black tarry substance and associated drug paraphernalia. The officers also found a small amount of heroin on top of a dresser.
During questioning at the police station, Palacios admitted that he owned the drugs found in the apartment. He said that the drugs were for his personal use only, that he used $20 worth of heroin twice a day, that he had used heroin earlier in the day, and that he packaged the heroin in individual baggies so he would not overdose.
Analysis of the heroin revealed that the three baggies found on Palacios contained 0.30 grams of heroin, the 11 baggies in the closet contained 1.37 grams of heroin, and the unpackaged heroin found on the dresser contained 0.07 grams of heroin.
Palacios rested without offering any evidence.
DISCUSSION
Dismissal of Juror for Cause
Palacios contends he was deprived of his constitutional right to an impartial jury when the trial court excused prospective juror H. for cause. Palacios further contends that, because the prosecution had used all its preemptory challenges, excusing prospective juror H. in effect gave the prosecutor an additional peremptory challenge.
On his information sheet, juror H. stated that he had formed some " opinions." When questioned on voir dire about this comment, he said he had a " soft spot on seeing [appellant]." He said he was a member of an organization that represented prisoners. He claimed to be a founding member of the Santa Barbara Mumia Coalition and an organization supporting Richard Williams, a prisoner sentenced to death for murder. He said " I'm a supporter of critical resistance, which is a brother group for several other organizations, including Education, Not Incarceration; Books, Not Bars; Prison Moratorium; and several other groups with which I've worked and continue to work."
When asked if the large number of his relatives employed as police officers would affect his impartiality, he responded: " Oh no, Your Honor. I have never seen a police officer take the stand and not lie, so, no." The trial court asked juror H. how he could be fair and impartial in light of his statement that police officers lie. He responded: " I didn't say I could be fair and impartial. I said I think I can be, because I take each witness as he or she hits the stand. I don't think the uniform matters to me one way or the other. I'm just stating a fact."
Voir dire of juror H. continued in chambers. The judge again asked him if he could be impartial. He responded: " Oh, absolutely. It's clearly a bias towards the defense, but I'm going to listen to all the facts or whatever is presented."
After the prosecutor challenged juror H. for cause, the court again questioned him regarding his statement that police officers lie. Juror H. responded: " I simply said, no, that my family members would not make me look at police officers and take whatever they say as something greater because I have love for my family members. I just gave you a balancing[.] I've never seen one tell the truth on the stand." He continued: " It just came out that they didn't tell the truth. So that just happened in those cases. I have no idea what's going to happen in this case."
The prosecutor questioned him about a " Free Mumia" button he was wearing on his lapel: " In that case, Mr. Mumia . . . was convicted of murder that was based upon the testimony of a number of police officers, and there's rather a large movement to free him even though there was rather compelling proof beyond a reasonable doubt that he was a cop killer." When asked how he felt about the case, juror H. responded: " There's a lot to talk about. I mean, we can talk about a biased judge. We can talk about Mr. Mumia not even allowed to be in court. We can talk about fabricated testimony. We can talk about coerced witnesses. We can talk about so much, and if we're going to just talk about Philadelphia in general, that police department is the only one in the history of the United States that had to be taken over by the Federal Government because of corruption and brutality. [¶] . . . [¶] . . . I think he should be let go."
After returning to the courtroom, the trial judge excused juror H. for cause, giving a lengthy explanation of his reasoning. The trial judge said he was concerned about juror H.'s involvement in prisoner rights groups, his admission that he had a bias for the defense, and, most importantly, because he " reiterate[d] the fact that . . . in his opinion he had never seen one police officer take the witness stand and not lie. . . . He said he had never, ever heard one police officer that took the stand and did not lie."
Palacios argues that the facts do not support excusal of juror H. for cause. We disagree. Whether a prospective juror has an actual bias is a factual issue left to the trial court's discretion. (People v. Clay (1984) 153 Cal.App.3d 433, 450.) The reviewing court defers to the trial court's determination because the trial judge has heard the tone and inflection of the juror's response and observed his demeanor. (See People v. Holt (1997) 15 Cal.4th 619, 659 [trial court observed juror's tone and demeanor]; People v. Cain (1995) 10 Cal.4th 1, 60 [deference to trial court which sees and hears prospective juror]; People v. Kaurish (1990) 52 Cal.3d 648, 675 [juror stated she would " try to be an impartial juror" yet would give greater credence to police officer witnesses].)
Code of Civil Procedure section 225, subdivision (b) permits a party to challenge a prospective juror if he is biased against a party. If a juror's responses to voir dire are conflicting or equivocal, the trial court's ruling regarding the juror's qualifications binds the reviewing court. (People v. Lucas (1995) 12 Cal.4th 415, 481; People v. Rodrigues (1994) 8 Cal.4th 1060, 1147.)
The trial court did not abuse its discretion by removing juror H. for cause. Juror H. was equivocal about whether he could be fair and impartial and his several iterations that police officers lie on the stand were sufficient to support his removal for bias. (People v. Holt, supra,15 Cal.4th at pp. 655-656.) The trial court reasonably concluded that juror H.'s attitude would " 'prevent or substantially impair'" his performance as a juror due to his bias against law enforcement. (People v. Mincey (1992) 2 Cal.4th 408, 456.)
Palacios' argument that excusing juror H. for cause amounted to an extra peremptory challenge for the prosecution fails because sufficient evidence of bias existed to support excusal for cause.
Alleged Griffin Error
Palacios contends his rights to remain silent and due process were violated when the prosecutor commented on his failure to present evidence at trial. (Griffin v. California (1965) 380 U.S. 609.) Pursuant to Griffin, it is error for a prosecutor to state that certain evidence is uncontradicted or unrefuted when that evidence could not be contradicted or refuted by anyone other than the defendant testifying on his own behalf. (People v. Hughes (2002) 27 Cal.4th 287, 371.) However, the prohibition " 'does not extend to comments on the state of the evidence or on the failure of the defense to introduce material evidence or to call logical witnesses.'" (People v. Hovey (1988) 44 Cal.3d 543, 572.)
Palacios' claim is based on the prosecutor's comment during closing argument that Palacios had failed twice to appear on scheduled trial dates. The prosecutor said: " I've talked about flight of a person after he or she is accused of a crime. It's not sufficient to establish guilt, but it certainly is something that raises a spectre of . . . I'm not here because I know I'm guilty. The term in the law is 'consciousness of guilt.' When somebody doesn't show up, it's because there's, I guess, a couple of reasons. But we haven't heard any reasons."
Palacios objected that the prosecutor was commenting on his failure to testify and requested an admonition. The objection was overruled and the prosecutor continued with his argument: " Where is his mother, someone to testify, someone to logically give another explanation to that? There isn't any. The flight of a person after that person is accused of a crime is not sufficient to prove his or her guilt. But you can consider it, and I submit to you, this instruction tells you that you should."
Later, outside the jury's presence, Palacios moved for a mistrial based on the prosecutor's comment. The trial judge denied the motion, stating, " [A] defendant's failure to present a logical witness on a particular point or points is in fact valid comment."
The prosecutor's comments clearly related to Palacios' failure to present testimony from alibi witnesses as to his failure to appear for scheduled court dates. The prosecutor did no more than emphasize Palacios' failure to present material evidence. He did not capitalize on the fact that Palacios failed to testify. Accordingly, there was no Griffin error. (People v. Brown (2003) 31 Cal.4th 518, 553.)
Presentence Custody Credits
Palacios was sentenced to 25 years to life on count 1 and an additional two years for two prior prison terms. The court imposed a concurrent six-month sentence on count 2 and a one-year concurrent sentence on count 3. The trial court awarded Palacios 361 days presentence custody credit, from November 7, 2000, to July 5, 2001. The abstract of judgment applies the credit only to counts 2 and 3, however. The abstract of judgment states: " AS TO COUNT 2 4140 BP A MISDEMEANOR AND COUNT 3 11500(A) HS A MISDEMEANOR, THE DEFENDANT IS TO SERVE 18 MONTHS IN ANY PENAL INSTITUTION WITH CREDIT TIME SERVED IN COUNTY JAIL OF 241 ACTUAL DAYS PLUS 120 DAYS GOOD/WORK TIME DAYS PER 4019, FOR A TOTAL OF 361 DAYS CREDIT TO BE APPLIED TO THE TIME SERVED ON COUNTS 2 & 3 ONLY." Palacios argues the abstract of judgment should be amended to reflect 361 days of presentence credit on count 1 as well because there is " no prohibition on presentence credit that applies to appellant's three-strikes sentence." We agree.
At the time of the current offenses, Palacios was on parole following a prior conviction. As a result of the commission of the current offenses, parole was revoked and he was put on a parole hold. He was incarcerated in the county jail from the date of his arrest, March 9, 2000, until the date of sentencing for the current offenses. His sentence for the parole violation ended on November 6, 2000. He is seeking custody credit from the date after his term for the parole violation ended, November 7, 2000, to July 5, 2001.
The People argue that Palacios is not entitled to any presentence custody credits at all for the current case because his time in custody was not solely attributable to the current offenses. (See People v. Bruner (1995) 9 Cal.4th 1178, 1193, fn. 10.)
Section 2900.5 provides that a convicted person shall receive credit against his sentence for all days spent in custody, including presentence custody (subd. (a)), but " only where the custody to be credited is attributable to proceedings related to the same conduct for which the defendant has been convicted" (subd. (b)). Where a period of presentence custody stems from multiple, unrelated incidents of misconduct, such custody may not be credited against a subsequent formal term of incarceration if the prisoner has not shown that the conduct underlying the term to be credited was also a " but for" cause of the earlier restraint. (People v. Bruner, supra, 9 Cal.4th at pp. 1193-1195.)
Bruner would preclude Palacios from receiving credit if he were seeking the credits awarded during the term of incarceration for his parole violation. (People v. Bruner, supra, 9 Cal.4th 1178.) But these are not the credits at issue. It is undisputed that the sentence for the parole violation ended on November 6, 2000. The credits at issue are for the time served after November 6, 2000. This period of confinement relates only to the current offenses and, thus, raises no issue of mixed conduct credit. (See People v. Ayon (1987) 196 Cal.App.3d 1114, 1117-1118 [prisoner serving time for probation offense while awaiting trial on subsequent unrelated offenses is entitled to presentence credit for time served after the probationary jail term ended].)
The trial court's limitation of these credits to counts 2 and 3 appears to stem from a misunderstanding of the law regarding presentence custody credits for three strike offenders. In In re Cervera (2001) 24 Cal.4th 1073, 1080, our Supreme Court held that " the Three Strikes law does not authorize or allow a defendant with three strikes to be awarded article 2.5 prison conduct credits against his mandatory indeterminate term of life imprisonment." (See also People v. Buckhalter (2001) 26 Cal.4th 20, 23 [same].)
In People v. Philpot (2004) 122 Cal.App.4th 893, 908, the court explained that the rule stated in Cervera and Buckhalter applies only to post-conviction custody credits. This is consonant with earlier cases holding that when an accused is convicted on multiple offenses and is ordered to serve concurrent sentences, presentence custody credits are to be credited against the term imposed for each crime. (See People v. Adrian (1987) 191 Cal.App.3d 868, 875-876; People v. Schuler (1977) 76 Cal.App.3d 324, 330.)
Sentence as Cruel and Unusual Punishment
Palacios contends that his sentence of 27 years to life for possession for sale of heroin constitutes cruel and unusual punishment under the federal and state Constitutions. The People assert that Palacios waived the claim by not raising it at trial and the sentence is not unconstitutional. Palacios concedes he did not object at the sentencing hearing, but raised the issue both prior to trial and prior to sentencing in relation to his motion to strike his prior convictions and this preserved the issue for review. We conclude that no waiver occurred. However, Palacios' claim is without substantive merit.
A sentence violates the state constitutional ban against cruel or unusual punishment if " it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends the fundamental notions of human dignity." (In re Lynch (1972) 8 Cal.3d 410, 424; People v. Thongvilay (1998) 62 Cal.App.4th 71, 87-88.) It violates the federal Constitution only if it is grossly disproportionate to the crime. (Ewing v. California (2003) 538 U.S. 11, 21.) Palacios' sentence reaches neither extreme.
When analyzing a claim of disproportionality under the state Constitution, we examine (1) the nature of the offense and offender, (2) the sentence compared to sentences for more serious offenses in California, and (3) the sentence compared to sentences for the same offenses in other states. (In re Lynch, supra,8 Cal.3d at pp. 425-429.) As to the nature of the offense, we do not view Palacios' most recent offenses in isolation. His punishment arises not only from his most recent offenses but also from two prior convictions. His continuing criminal behavior shows he has not reformed. As to the nature of the offender, Palacios has a lengthy criminal record that includes periods of incarceration. He has apparently learned nothing from this experience. Although his most recent crimes are nonviolent offenses, his continuing criminal behavior shows he remains a danger to society.
Palacios' argument that his punishment is the same as that for more serious offenses is flawed. He is comparing punishment for a single offense with punishment for recidivist behavior. Palacios' argument has been rejected by other courts. (People v. Cooper (1996) 43 Cal.App.4th 815, 826; People v. Ingram (1995) 40 Cal.App.4th 1397, 1416, overruled on other grounds in People v. Dotson (1997) 16 Cal.4th 547, 558-559.)
Palacios' sentence is not cruel or unusual. His recidivism warrants his lengthy isolation from society. (People v. Ayon, supra, 46 Cal.App.4th at pp. 399-40l.)
The judgment is modified to reflect an award of 361 days of custody credits as to count 1 consisting of 241 days of actual custody and 120 days of conduct credit. The trial court shall amend the judgment accordingly and forward the amended abstract to the Department of Corrections. The judgment is otherwise affirmed.
NOT TO BE PUBLISHED.
PERREN, J.
We concur:
YEGAN, Acting P.J.
COFFEE, J.
Thomas R. Adams, Judge
Superior Court County of Santa Barbara
______________________________
Gilbert W. Lentz, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson, Supervising Deputy Attorney General, Joseph P. Lee, Deputy Attorney General, for Plaintiff and Respondent.
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[1] All further statutory references are to the Penal Code unless otherwise indicated.
[2] It was later found that two of the three prior prison terms were actually for the same commitment.
