P. v.
Filed 7/25/12 P. v.
Graves CA3
NOT
TO BE PUBLISHED
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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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opinion has not been certified for publication or ordered published for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
THIRD APPELLATE
DISTRICT
(Sacramento)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
CHARLES GRAVES,
Defendant and Appellant.
C065818
(Super.
Ct. No. 06F07649)
A jury convicted
defendant of being a felon in possession
of a firearm (Pen. Code, § 12021, subd. (a)(1)) and found he had two prior
serious or violent felonies (Pen. Code, §§ 667, subds. (b)-(i); 1170.12). Sentenced to 25 years to life in prison,
defendant appeals.
He contends (1)
the prosecutor committed misconduct in vouching for the credibility of witnesses
and unfairly denigrating defendant’s credibility; (2) the instruction on
transitory possession erroneously required defendant to prove the defense by a
than merely to raise a reasonable doubt; and (3) his sentence of 25 years to
life is cruel and unusual punishment. He also raises ineffective assistance of
counsel in an attempt to prevent our finding of forfeiture where he failed to
object in the trial court as required to preserve his claims. As we explain, we find neither error nor
ineffective assistance of counsel.
Accordingly, we shall affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In August of 2006,
Clem Carney, also known as Toot,
name="_ftnref1" title="">[1]
was living with Joakima Gregg and her boyfriend Marcus Owens. Gregg sold methamphetamine out of the house.
Defendant was a
good friend of Carney’s. He came to
Carney’s house multiple times on August 20.
Gregg. He returned about 2:00 a.m. the
next morning, August 21, with a shotgun.
Gregg and two other women were in the living room playing dice. Carney and Owens were in the back
bedrooms. Defendant pointed the gun at
Gregg and demanded money, claiming she had “gypped him off [
that.†Carney came in the living room,
followed by Owens. There was a struggle,
and Carney was shot in the leg.
Defendant’s wife
was waiting in a car in front of the house.
Defendant got in the car with the gun and left.
The police went to
defendant’s residence that same morning and spoke with his wife, who arrived at
the house just after 3:00 a.m. She said
defendant had not stayed there for two weeks.
She told the police that she had seen defendant the day before, August
20, at about noon for an hour, and after that had not seen him again until he
came over to the house and asked for a ride that same morning, August 21, at
about 2:30 a.m. She had just returned
from taking him to the area of Sacramento City College (Freeport and
Sutterville Roads), where she had left him awaiting a ride to Stockton. The police searched defendant’s residence,
his wife’s car, and the front yard at Carney’s, but never found the gun.
Almost three years
later, defendant was found in Houston, Texas.
In his original interview, he told the police he was not at Carney’s
house the morning of the shooting. He
instead claimed that he was fishing with his nephew (who was now at an unknown
prison) and that the witnesses who had identified him as the shooter all owed
him money and all were lying.
At trial,
defendant admitted to visiting Carney’s house twice on August 20, purchasing
methamphetamine from Gregg through Carney, and snorting it while there. He added that while there, he had loaned
Carney $10 and Carney had promised to pay him $15 back later that day. He then left and went fishing again, with his
wife and others, and did not get home from fishing until about 9:00 p.m. He left his house with his wife and stepdaughter
at around 2:00 a.m. the next morning, and decided to pick up the $15 owed to
him.
He testified that
when he went to Carney’s house to ask for his $15, Gregg had a “crack
attitude,†meaning she did not want to deal with him, and she started screaming
at him. Owens emerged from the back with
a shotgun; defendant hit him twice in the jaw and took the gun. Carney came out yelling about a gun in his
house. As they stood outside and talked,
Carney tried to take the gun away from defendant and the gun fired, wounding
Carney. Defendant left, unloading the
gun and throwing it on the grass as he went to the car where his wife was
waiting. He went to meet his nephew
“on Freeport by the airport.†When
defendant saw a bulletin on the news that he was wanted for a shooting, he was
scared and fled California.
Defendant was
charged with assault with a deadly weapon
with personal use of a firearm, being a felon in possession of a firearm, and
grossly negligent discharge of a firearm.
In the first trial, he was acquitted of the first and third charges; the
jury failed to reach a verdict on the felon in possession charge. He was retried on that charge and the strike
allegations. The second jury convicted
defendant of being a felon in possession of a firearm and found the strike
allegations true.
title="">[3] The trial court sentenced defendant to 25
years to life in prison.
DISCUSSION
I
Alleged Prosecutorial Misconduct
Defendant contends
the prosecutor committed misconduct when addressing the
argument. He contends the prosecutor
improperly vouched for the credibility of prosecution witnesses, going beyond
the evidence to argue they should be believed.
Further, defendant argues, the prosecutor engaged in “vindictive
sermonizing†by calling defendant a liar and a con man.
“To preserve a
claim of prosecutorial misconduct during argument, a defendant must
contemporaneously object and seek a jury admonition. [Citations.]â€
(People v. Bonilla (2007)
41 Cal.4th 313, 336 (Bonilla).) Defendant failed to object to a single
instance that he now claims was misconduct.
Recognizing that by not objecting in the trial court he has forfeited
any claim of error, he asserts counsel was ineffective in failing to object.
Defendant’s claim
of prosecutorial misconduct, and consequently his claim of ineffective
assistance of counsel, lack merit.
“‘[A] prosecutor
is prohibited from vouching for the credibility of witnesses or otherwise
bolstering the veracity of their testimony by referring to evidence outside the
record. [Citation.] Nor is a prosecutor permitted to place the
prestige of [her] office behind a witness by offering the impression that [she]
has taken steps to assure a witness’s truthfulness at trial. [Citation.]
However, so long as a prosecutor’s assurances regarding the apparent
honesty or reliability of prosecution witnesses are based on the “facts of
[the] record and the inferences reasonably drawn therefrom, rather than any
purported personal knowledge or belief,†[her] comments cannot be characterized
as improper vouching.’†(
215.) Prosecutors are given wide
latitude during argument so long as the argument “amounts to fair comment on
the evidence.†(Bonilla, supra, 41 Cal.4th at pp. 336-337.)
The challenged
comments fall within the scope of permissible comment. Defendant complains the prosecutor vouched
for Gregg’s credibility by arguing that she was honest and could be believed
because she had cleaned up her life and was not using drugs anymore. Defendant objects that Gregg testified only
that she was not selling drugs
anymore, not that she had stopped using
drugs.
Gregg testified
that after the shooting she moved in with her aunt and uncle who were Jehovah’s
Witnesses. She broke up with Owens,
studied the Bible, got a job, and tried to “clean up a lot of things that I had
done in the past.†In 2008, she was
baptized as a Jehovah’s Witness and lived her life “strictly by Bible
principles.†It is certainly reasonable
to infer from this testimony that Gregg no longer sold or used illegal drugs. The
argument was permissible.
Defendant also
contends the prosecutor improperly vouched for the credibility of witness
Kasavi Willis, one of the women playing dice with Gregg the night of the
shooting. Willis testified defendant
entered the house with a gun. The
prosecutor argued Willis had no reason to lie because she did not associate
with “these people†any more. Defendant
argues the prosecutor implied Willis had renounced
her drug-dealing friends, when in fact they had simply moved away and were
unavailable for her to associate with.
Willis testified
that she saw Gregg and Owens after the incident, but after six or seven months
when Gregg and her mother moved, “I lost contact with everyone.†The prosecutor argued Willis had no reason to
lie and support the testimony of others because she was no longer in contact
with them. This was a fair comment on
the evidence, whatever the reason for
the loss of contact.
Finally, defendant
contends the prosecutor unfairly commented on his credibility by calling him a
“liar†and a “con man.â€
name="_ftnref4" title="">[4] We find no error. “Referring to the testimony and out-of-court
statements of a defendant as ‘lies’ is an acceptable practice so long as the
prosecutor argues inferences based on evidence rather than the prosecutor’s
personal belief resulting from personal experience or from evidence outside the
record. [Citations.]†(People
v. Edelbacher (1989) 47 Cal.3d 983, 1030.)
Similarly, referring to defendant as a “con man†is an appropriate
comment on the evidence. (
1017, 1059, reversed on other grounds in Stansbury
v. California (1994) 511 U.S. 318 [128 L.Ed.2d 293].) The prosecutor’s argument that “[defendant]
has turned this case into a case about whether or not a con man can get away
with this . . . †was almost immediately followed by a reference to defendant’s
choice to testify at trial and the unbelievable nature of his testimony and was
not based on experience or evidence outside the record. Rather, her characterization of defendant was
based on his many versions of the happenings of August 20-21. When caught in Texas, he vehemently denied
being present at the shooting; his subsequent testimony changed to accommodate
additional witnesses and ultimately his claims differed substantially from the
observations of all the others present that night, including the various
renditions of events by his own witnesses.
The argument was appropriate under the circumstances.
Defendant has not
shown prosecutorial misconduct. Since we have found no misconduct, it follows
that defense counsel’s failure to object did not result in ineffective
assistance of counsel. (People v. Osband (1996) 13 Cal.4th 622,
700; People v. Thomas (1992) 2 Cal.4th 489, 531.)
II
Instruction on Transitory Possession
Defendant’s
defense was transitory possession; he argued that he possessed the shotgun only
momentarily to abandon or dispose of it.
Defendant contends the trial court erred in instructing the jury with
CALCRIM No. 2511, which required that defendant prove this defense by a preponderance
of the evidence.
title="">[5] He contends the defense of transitory
possession is not collateral to his guilt or innocence and therefore he was
required only to raise a reasonable doubt as to his guilt.
In
first applied the defense of momentary possession to a charge of possession of
heroin. The court found that the act of
handling a narcotic for the sole purpose of disposal did not constitute
“possession†within the meaning of Health and Safety Code section 11500. (Mijares,
supra, 6 Cal.3d at p. 422.) In
805, 813-815, the court applied this defense to a charge under Penal Code
section 12021, subdivision (a)(1), the charge at issue here.
Defendant relies
on People v. Mower (2002) 28 Cal.4th
457 (Mower), where our Supreme Court
held a defendant raising a medical marijuana defense under Health and Safety
Code section 11362.5, subdivision (d) need not prove the defense by a
preponderance of the evidence but instead need only raise a reasonable
doubt. (Mower, supra, 28 Cal.4th at pp. 464, 481.) The Mower
court observed that in only a handful of defenses, most prominently entrapment,
where the defense is collateral to the defendant’s guilt or innocence, are
defendants required to prove the underlying facts by a preponderance of the
evidence. (Mower, supra, at p. 480.)
The court noted that momentary possession was included in this category
of defenses, citing People v. Spry (1997)
58 Cal.App.4th 1345, 1367-1369 [holding defendant has burden to prove defense
by a preponderance of the evidence], but declined to decide whether this
defense properly requires a defendant to prove its underlying facts by a
preponderance of the evidence. (
In
(Martin), our Supreme Court clarified
the nature and scope of the affirmative defense of transitory possession for
disposal. The court held “the defense of
transitory possession devised in Mijares
applies only to momentary or transitory possession of contraband for the
purpose of disposal.†(
1191.) The Martin court disapproved Spry
to the extent it accepted that the defense applied where possession was more
than momentary or transitory for disposal.
(Martin, supra, at pp.
1191-1192.) The Martin court noted, however, that Spry was “good authority†for the allocation of the burden of
proof. (Id. at p. 1192, fn. 10.)
Thus, our Supreme Court has confirmed that a defendant must prove the
defense of transitory possession by a preponderance of the evidence. Tellingly, defendant fails to cite or discuss
either Spry or Martin. His contention
fails.
III
Cruel and Unusual Punishment
Defendant contends
his 25-year-to-life sentence constitutes cruel and unusual punishment because
it is due to a single offense, that is not a serious or violent felony, and his
strike priors, from 1983 and 1988, are 20 years old. Recognizing that the failure to raise this
point below forfeits it (People v.
DeJesus (1995) 38 Cal.App.4th 1, 27), defendant contends his trial counsel
was ineffective in failing to bring a motion to strike under
object to his sentence.
Counsel was not
ineffective in failing to bring a Romero
motion. It is proper to strike a prior
serious or violent felony under the three strikes law only when “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 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 (1998) 17 Cal.4th 148, 161.)
Here, defendant was not outside the spirit of the three strikes law
because he had a significant criminal record dating from 1979. His record included attempted robbery, drug
and weapons offenses, shooting at an occupied dwelling, two counts of assault
with a deadly weapon or with force likely to cause great bodily injury,
inflicting corporal injury on a spouse or cohabitant, and forgery. He had served six prison sentences.
Nor was counsel
ineffective in failing to object to defendant’s sentence as cruel or
unusual. The United States Supreme Court
has repeatedly held that recidivism justifies the imposition of longer
sentences for subsequent offenses, even nonviolent offenses, and has upheld
sentences similar to defendant’s. (See
30-31 [155 L.Ed.2d 108, 123] [25 years to life for grand theft of golf clubs
was not cruel and unusual]; Lockyer v.
Andrade (2003) 538 U.S. 63, 76-77 [155 L.Ed.2d 144, 159] [sentencing
recidivist to two 25-year-to-life terms on two counts of petty theft not cruel
or unusual under either state or federal Constitutions]; Rummel v. Estelle (1980) 445 U.S. 263, 266 [63 L.Ed.2d 382, 386]
[life sentence under Texas recidivist statute for obtaining $120.75 by false
pretenses after previous convictions for credit card fraud and passing a forged
check does not violate the United States Constitution].)
California courts
routinely uphold 25-year-to-life sentences where the current offense is not a
serious or violent felony. (See, e.g.,
92, 109 [failure to register as sex offender]; People v. Meeks (2004) 123 Cal.App.4th 695, 706-710 [failure to
register]; People v. Romero (2002) 99
Cal.App.4th 1418, 1431-1433 [felony petty theft]; People v. Goodwin (1997) 59 Cal.App.4th 1084, 1093-1094 [petty
theft with a prior].)
Counsel was not
ineffective for failing to make ineffectual objections and arguments.
DISPOSITION
The judgment is
affirmed.
DUARTE , J.
We concur:
BUTZ , Acting P. J.
HOCH , J.
name="_ftn1" title="">[1] “Toot†is expressed elsewhere in the record
as “Two.â€
name="_ftn2" title="">[2] Further unspecified references to dates are
in year 2006.
