P. v. Hicks

Filed 12/17/09 P. v. Hicks CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

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A jury found defendant Tyrea Kinte Hicks guilty of being a convicted felon in possession of a firearm and ammunition. (Pen. Code,  12021, subd. (a)(1)), 12316, subd. (b)(1); further section references are to the Penal Code.) Finding that defendant had four prior serious felony convictions, the trial court sentenced him to 25 years to life pursuant to the three strikes law.

On appeal, defendant contends (1) the court should have granted his motion to suppress evidence, (2) his Wheeler-Batson motion was erroneously denied (People v. Wheeler (1978) 22 Cal.3d 258; Batson v. Kentucky (1986) 476 U.S. 79 [90 L.Ed.2d 69]), (3) the court should have granted his motion to strike his prior convictions for purposes of sentencing, (4) his sentences of 25 years to life are unconstitutionally cruel and/or unusual punishment, and (5) his sentence for unlawful possession of ammunition should have been stayed pursuant to section 654. We shall modify the judgment to stay the sentence for the ammunition conviction, and affirm the judgment as modified.

FACTS

When parole agents and Sacramento police officers went to an apartment complex to look for Jose Reyes, a parolee at large, they saw defendant, his half brother Edward Williams, and friend Joseph Williams by the front gate. The apartment complex was known to officers as a high narcotics area. As the agents and officers approached, defendant took a clear plastic bag from his sweatpants and threw it away. Defendant was frisked and found in possession of five .380-caliber bullets. An officer then retrieved the bag and discovered it contained rock cocaine.

The apartment complex manager told Parole Agent Alex Hoang and Officer Zachary Bales that defendant and the two men with him were there to visit the resident in apartment 6. Going up to the apartment, officers found another baggie containing rock cocaine at the top of the stairs.

The tenant in apartment 6, Patricia Pittman, consented to a search of the apartment. Inside, officers found a backpack containing a black sweatshirt and a loaded .380 pistol.

Valencia Brooks, who had been in apartment 6 to celebrate Pittmans birthday, told Officer Bales that defendant had brought the backpack into the apartment and set it down. At trial, Brooks denied making this statement, testifying instead that she did not know who brought the backpack into the apartment and did not even see defendant enter the apartment.

Defendants friend, Joseph Williams, testified defendants half brother, Edward, had the backpack all day and carried it into apartment 6. According to Joseph, defendant never even entered Pittmans apartment, remaining outside to talk on the phone. But a prosecution investigator testified that, in an interview prior to trial, Joseph told the investigator that the backpack belonged to defendant, who wore it during the day and then left it in Pittmans apartment the day it was seized by agents and officers. Joseph also told the investigator that defendant had handled the bullets inside the apartment before they were found on defendants person outside.

Defendants half brother, Edward, testified that when he got together with defendant and Joseph at a light rail station, Edward was wearing a hooded sweatshirt and carrying the backpack, gun, and bullets. As they approached the complex, Edward took off the sweatshirt and put it in his backpack. Defendant told Edward that some ammunition had dropped from the sweatshirt, but Edward continued into the apartment complex. When Edward entered Pittmans apartment, the sweatshirt and gun were inside the backpack, which he left in the apartment. According to Edward, it was defendants friend, Joseph, who threw the plastic baggie as agents and officers approached the apartment complex.

Defendant testified that, when the five bullets fell from his half brothers sweatshirt, defendant picked them up. He meant to return the bullets to Edward, but it slipped [defendants] mind. He claimed that the backpack with the gun belonged to Edward and that defendant never entered Pittmans apartment; instead, he stayed outside to call his fiance.

DISCUSSION

I

Claiming he was frisked without a reasonable suspicion that he was armed and dangerous, defendant contends the court should have granted his motion to suppress evidence of the bullets and the gun discovered as a product of the patdown. We disagree.

The standards for appellate review of the trial courts determination on a motion to suppress pursuant to section 1538.5 are well settled. The trial courts factual determinations are reviewed under the deferential substantial evidence standard; its determination of the applicable rule of law is scrutinized under the standard of independent review. [Citation.] We independently assess as a question of law whether, under such facts as found by the trial court, the challenged action by the police was constitutional. [Citation.] (People v. Coulombe (2000) 86 Cal.App.4th 52, 5556.)

At the suppression hearing, Officer John Harshbarger testified that his team of officers and parole agents went to the apartment complex around 7:55 p.m. to look for a parolee at large. They wore police raid vests with police in bold yellow letters on the front and back. The complex was known for a high level of drug activity. When the team arrived, three men were hanging out in the courtyard of the apartment complex. Harshbarger observed defendant reach into his front left sweatpants pocket and throw a plastic object onto the ground. Concluding this action was consistent with someone trying to dispose of illegal drugs, Harshbarger spoke to defendant and learned that he had recently been discharged from parole. Defendant was dressed in baggy clothing, so a visual inspection could not determine whether he was armed. Thus, Harshbarger frisked defendant and found five bullets in his pocket. Defendant was arrested for possession of ammunition by a convicted felon. A subsequent search of Pittmans apartment revealed the gun in the backpack.

In defendants view, the facts that led up to the pat down frisk showed only that defendant was potentially guilty of a crime, not necessarily that he was armed. The trial court correctly disagreed.

A law enforcement officer may conduct a frisk when the officer reasonably suspects the person is armed and dangerous. (Minnesota v. Dickerson (1993) 508 U.S. 366, 373 [124 L.Ed.2d 334, 344], citing Terry v. Ohio (1968) 392 U.S. 1 [20 L.Ed.2d 889] (hereafter Terry).) The reasonableness of the frisk is determined by examining the totality of the circumstances under which the patdown took place. (Terry, supra, at p. 27 [20 L.Ed.2d at p. 909]; People v. Hannah (1996) 51 Cal.App.4th 1335, 1342.)

Central to the Terry courts understanding of reasonableness is the requirement of specificity in the information upon which police action is predicated . . . . [Citation.] Thus, in justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion. [Citation.] (People v. Glaser (1995) 11 Cal.4th 354, 363.)

Here, Officer Harshbarger knew that the apartment complex was an area with a high level of drug activity. (See People v. Souza (1994) 9 Cal.4th 224, 240 [An areas reputation for criminal activity is an appropriate consideration in assessing whether an investigative detention is reasonable under the Fourth Amendment].) He also knew that, upon seeing agents and officers wearing police raid vests, defendant pulled a plastic baggie out of his pocket and threw the object away. Based upon his training and experience, Harshbarger reasonably believed that defendant was trying to dispose of illicit drugs. And, before the frisking, Harshbarger knew that defendant had been recently discharged on parole. In addition, it was 7:55 p.m. in October (id. at p. 241 [time of night is another pertinent factor in assessing the validity of a detention]), and defendant was wearing baggy clothing that could easily conceal a gun or other weapon.

These were specific, articulable facts, combined with rational inferences, which reasonably supported Harshbargers suspicion that defendant was armed and dangerous. As numerous courts have noted, drugs and guns go together. (See, e.g., People v. Bland (1995) 10 Cal.4th 991, 1005 [Drug dealers are known to keep guns to protect not only themselves, but also their drugs and drug proceeds; ready access to a gun is often crucial to a drug dealers commercial success]; People v. Gallegos (2002) 96 Cal.App.4th 612, 629 [same]; see also People v. Glaser, supra, 11 Cal.4th at p. 367 [firearms are tools of the trade in narcotics business]; People v. Bradford (1995) 38 Cal.App.4th 1733, 1739 [[I]t is common knowledge that perpetrators of narcotics offenses keep weapons available to guard their contraband].)

Accordingly, the trial court properly concluded the frisk was lawful and the bullets and gun discovered as a result of the frisk and subsequent investigation were admissible evidence.

II

Defendant contends the trial court erred in denying his Wheeler-Batson motion. We disagree.

During voir dire, defendant brought the motion on the basis of the prosecutors peremptory challenges to two African-American jurors. The court summarily denied the challenge regarding one of the jurors--a ruling that defendant does not contest on appeal. However, the court concluded that defendant established a prima facie case of discrimination as to the other juror, Mr. C., and asked the prosecutor to provide justification for the challenge.

The prosecutor explained that the court clerk had repeatedly called Mr. C. at the beginning of the session, but the juror was nowhere to be found. When Mr. C. finally arrived, he was out of breath and did not have his questionnaire. The prosecutor was troubled that Mr. C., a student with a job on campus, was not concerned about jury service during the beginning of the school year, a time when most students are deathly afraid of being forced to drop classes for jury service. And, according to the prosecutor, Mr. C. laughed at inappropriate times in almost every answer he gave. Seeing Mr. C. in front of the courthouse, the prosecutor observed that his pants were sagging well below his waistline. This raised concerns that Mr. C. would not get along and work with the other jurors. Mr. C. also wore an earring, which the prosecutor did not like.

Disputing the prosecutors claims that Mr. C. laughed and dressed inappropriately, defense counsel argued the fact Mr. C. was attending community college demonstrated an educational background which would help him participate with the other jurors.

The trial court denied the Wheeler-Batson motion, finding that, although the prosecutor may have a bias against people who sag, the peremptory challenge was not based on race.

Defendant attempts to discount each of the prosecutors stated reasons for the peremptory challenge to Mr. C. However, the trial court found the non-race-based reasons to be credible. For reasons that follow, defendant fails to demonstrate that the trial courts assessment of the reasons was clearly erroneous. (Snyder v. Louisiana (2008) 552 U.S. 472, ___ [170 L.Ed.2d 175, 181].)

Equal protection of law, and a defendants right to trial by a jury drawn from a representative cross-section of the community, are violated by a prosecutors use of peremptory challenges to strike prospective jurors on the basis of race. (People v. Avila(2006) 38 Cal.4th 491, 541.) A claim of racially discriminatory peremptory challenges is resolved through a three-part test: First, the defendant must make out a prima facie case by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose. [Citations.] Second, once the defendant has made out a prima facie case, the burden shifts to the State to explain adequately the racial exclusion by offering permissible race-neutral justification for the strikes. [Citations.] Third, [i]f a race-neutral explanation is tendered, the trial court must then decide . . . whether the opponent of the strike has proved purposeful racial discrimination. [Citation.] (Johnson v. California (2005) 545 U.S. 162, 168 [162 L.Ed.2d 129, 137-138], fn. omitted.)

It is not until the third step that the persuasiveness of the justification becomes relevant--the step in which the trial court determines whether the opponent of the strike has carried his burden of proving purposeful discrimination. (Purkett v. Elem (1995) 514 U.S. 765, 768 [131 L.Ed.2d 834, 839].) At that stage, the court must make a sincere and reasoned evaluation based on the circumstances before it. (People v. Reynoso (2003) 31 Cal.4th 903, 919.)

A trial courts ruling on the issue of discriminatory intent must be upheld on appeal unless it is clearly erroneous. (Snyder v. Louisiana, supra, 552 U.S. at p. ___ [170 L.Ed.2d at p. 181].) The trial court has a pivotal role in evaluating Batson claims. Step three of the Batson inquiry involves an evaluation of the prosecutors credibility, [citation], and the best evidence [of discriminatory intent] often will be the demeanor of the attorney who exercises the challenge, [citation]. In addition, race-neutral reasons for peremptory challenges often invoke a jurors demeanor (e.g., nervousness, inattention), making the trial courts first-hand observations of even greater importance. In this situation, the trial court must evaluate not only whether the prosecutors demeanor belies a discriminatory intent, but also whether the jurors demeanor can credibly be said to have exhibited the basis for the strike attributed to the juror by the prosecutor. We have recognized that these determinations of credibility and demeanor lie peculiarly within a trial judges province, [citations], and we have stated that in the absence of exceptional circumstances, we would defer to [the trial court]. [Citation.] (Snyder v. Louisiana, supra, 552 U.S. at p. ___ [170 L.Ed.2d at p. 181.)

Here, the prosecutor presented specific reasons for challenging Mr. C. based on appearance and demeanor. Defense counsel disputed some but not all of them. By denying the Wheeler-Batson motion, the trial court found the prosecutors reasons were credible.

The trial courts evaluation of the prosecutors credibility was not clearly erroneous. Contrary to defendants suggestion, the prosecutors reasons related to the jurors clothing style and responsibility were not so vague as to be functionally meaningless or containing thinly disguised stereotypes. The trial court observed the juror and thus was in the best position to assess the prosecutors views about Mr. C.s appearance as a permissible basis for a peremptory challenge. The other reasons given by the prosecutor--Mr. Cs lateness, inappropriate laughter, and lack of concern over missing class--are all valid, race-neutral reasons for not wanting him on the jury.

In sum, this is not an exceptional circumstance for us not to defer to the trial courts determination that the prosecutors reasons for the peremptory challenge were not pretextual (Snyder v. Louisiana, supra, 552 U.S. at p. ___ [170 L.Ed.2d at p. 181); thus, we conclude it properly denied defendants Wheeler-Batson motion.

III

Defendant contends his sentence is infirm. First, he claims that the trial court abused its discretion by denying his Romero motion to strike his prior serious felony convictions for the purpose of sentencing. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (hereafter Romero).) Second, he asserts his term of 25 years to life is cruel and/or unusual punishment under the state and federal Constitutions. Both contentions lack merit.

A

Recounting the nature of defendants criminal record, the trial court concluded that defendants current crimes were serious. In the courts words: If there is ever an individual in society who should not have a gun, its [defendant]. Having considered defendants criminal history, the nature of his current crimes, and his particular situation and his prospects for the future, the trial court declined to strike defendants four prior serious felony convictions for the purpose of sentencing.

In support of his Romero motion, defendant had argued his prior serious felony convictions resulted from a series of bad decisions made one day when he was 18 years old. He asserted that he had been gainfully employed since his 2003 release from prison, and was trying to make a life with his fiance at the time of the current offenses. He makes the same arguments on appeal and adds that (1) his being a convicted felon in possession of a gun and ammunition were relatively minor crimes, (2) none of his prior felonies actually involved violence and no one was physically injured, and (3) his criminal history is slender compared to the records of others whose Romero motions have been properly denied.

These factors, defendant argues, demonstrate that he should not be treated as a three strikes defendant, and it is an abuse of discretion not to strike one or more of his prior serious felonies for the purpose of sentencing. The trial court was not persuaded; nor are we.

A court may in furtherance of justice, order an action to be dismissed. ( 1385, subd. (a).) This statute authorizes a court to strike, for purpose of sentencing, a finding that a defendant has a prior serious felony within the meaning of the three strikes law. (Romero, supra, 13 Cal.4th at p. 504.) In order to strike a defendants prior conviction for purpose of sentencing, the court must consider 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. (People v. Williams (1998) 17 Cal.4th 148, 161.)

A courts 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.) [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.)

Here, the trial court reasonably concluded that defendants criminal history demonstrated that he should not be deemed outside the spirit of the three strikes law. As a juvenile, defendant had been found to have committed robbery and misdemeanor assault with a deadly weapon. In 1996, defendant and an accomplice approached two women outside a residence. Defendant got behind one of the women, held a gun to her head, and told her not to look at him. His accomplice told the other woman to get out of her car. Both victims were then ordered into the house, where they and a child in the house were forced to lie face down on the floor. Defendant and his accomplice then took the car keys and stole the car. Defendant also robbed a woman pedestrian of her purse. As a result of these crimes, defendant was convicted in 1997 of assault with a firearm, carjacking, and two counts of robbery. He was sentenced to 11 years four months in prison, and was twice returned to prison for parole violations. Defendants disciplinary history in prison includes violations of prison rules in 1998 and 1999. In 2005, defendant was convicted of misdemeanor battery and disturbing the peace.

Defendants attempts to diminish the significance of his criminal record by asserting that, although his four prior felonies had the potential for violence, none of them actually involved violence and no one was physically injured. Holding a woman at gunpoint, forcing two women into a house, and making them and a child lie on the floor so defendant and his accomplice could steal a car is quintessential violent conduct. That the women and child were not physically harmed is mere good fortune; and defendant ignores the mental suffering that he and his accomplice inflicted upon them. Other crimes committed by defendant, before and after the violent offenses against the women and child, involved the application of force or threat of force on victims, and demonstrate that defendant is a danger to society.

Defendant also tries to paint his current offenses as minor because they did not involve force or fear and [were crimes only] because of [his] ex-felon status. Not so. The purpose of the statutes prohibiting convicted felons from possessing firearms and ammunition is to protect public welfare by precluding possession of guns and ammunition by those who the Legislature has found are more likely to use them for improper purposes with a potential for death or great bodily injury. (People v. Pepper (1996) 41 Cal.App.4th 1029, 1037-1038.) Accordingly, it is immaterial that defendants possession of the gun and ammunition did not result in violence on the day they were seized. His crimes were serious because of their great potential for violence or other mischief.

In sum, the nature and circumstances of defendants present felonies, his prior serious felony convictions, and the particulars of his background, character, and prospects do not put him outside the spirit of the three strikes law such that he should be treated as though he had not previously been convicted of one or more of his serious felonies. (People v. Williams, supra, 17 Cal.4th at p. 161.) Therefore, the trial court did not abuse its discretion in denying defendants Romero motion.

B

We also reject defendants claim that his sentence of 25 years to life constitutes cruel and unusual punishment.

The Eighth Amendments proscription against cruel and unusual punishment contains a narrow disproportionality principle prohibiting imposition of a sentence grossly disproportional to the severity of the offense. (People v. Meeks (2004) 123 Cal.App.4th 695, 707.) A proportionality analysis requires comparison of (1) the gravity of the offense committed and the harshness of the penalty, and (2) the sentences imposed on others for the same crime in the same jurisdiction. (Ibid.) Analyzing the gravity of the crime includes consideration of the offense and the defendants criminal history. (Id. at p. 708.) [I]t is only in the rare case where a comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality that the second and third criteria come into play. (Id. at p. 707.)

Defendant has a history of violent crime that includes holding a gun to the head of a woman in order to steal a car. His crimes, resulting in four felony convictions as an adult and adjudications for serious crimes as a juvenile, show he is unable to conform to the law and poses a continuing danger to society. Thus, his sentence of 25 years to life for the serious crimes of unlawfully possessing a gun and ammunition as a convicted felon who is likely to use them for violent purposes does not violate the Eighth Amendment because the sentence is not grossly disproportionate to the gravity of the defendants current crimes and his criminal history.

Similarly, the sentence does not run afoul of our state Constitution. A punishment may violate article I, section 17 of Californias Constitution if, although not cruel or unusual in its method, 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 (1972) 8 Cal.3d 410, 424.) To determine whether a sentence is cruel or unusual, we (1) examine the nature of the offense and the offender, (2) compare the sentence with punishments for more serious offenses in the same jurisdiction, and (3) compare the sentence with punishments for the same offense in other jurisdictions. (Id. at pp. 425-427.) In examining the nature of the offense and the offender, we must consider not only the offense . . . but also the facts of the crime in question (including its motive, its manner of commission, the extent of the defendants involvement, and the consequences of his acts); we must also consider the defendants individual culpability in light of his age, prior criminality, personal characteristics, and state of mind. [Citations.] (People v. Crooks (1997) 55 Cal.App.4th 797, 806.)

Just as defendant is unable to demonstrate disproportionality in examining the offense and the offender under an Eighth Amendment analysis, he cannot do so under the California Constitution.

As to intrastate comparisons, defendant notes his sentence for being a convicted felon in possession of a firearm and ammunition is comparable to that for first degree murder. But he fails to compare himself to other three strikes offenders, who also receive the same sentence. (See People v. Cooper (1996) 43 Cal.App.4th 815, 826.)

As to interstate comparison, defendant complains that his three strikes sentence is more severe than sentencing statutes in other states. But this fact, if it is a fact, does not compel the conclusion that [defendants sentence] is unconstitutionally cruel or unusual. This state constitutional consideration does not require California to march in lockstep with other states in fashioning a penal code. It does not require conforming our Penal Code to the majority rule or the least common denominator of penalties nationwide. [Citation.] Otherwise, California could never take the toughest stance against repeat offenders or any other type of criminal conduct. (People v. Martinez (1999) 71 Cal.App.4th 1502, 1516.)

In light of defendants lengthy record, including violent crimes and the prior use of a firearm to threaten a victim, the sentence of 25 years to life imposed for his unlawful possession of a gun and ammunition as a convicted felon (who, the Legislature has deemed, is likely to use them for violent purposes) is not grossly disproportionate to the crimes and does not shock the conscience.

IV

In a supplemental brief, defendant argues that his sentence for being a felon in possession of ammunition (count two) should have been stayed pursuant to section 654. We agree.

Section 654, subdivision (a), states in part: An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. This means that a defendant may not be punished more than once for separate acts comprising an indivisible course of conduct with a single intent; but, if the separate acts had separate intents and objectives, the defendant may be punished separately for each crime, even though they made up an indivisible course of conduct. (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.) We review for abuse of discretion the trial courts ruling on the applicability of section 654, and we will not reverse if substantial evidence supports the ruling. (Ibid.)

Defendant argues his claim is governed by People v. Lopez (2004) 119 Cal.App.4th 132 (hereafter Lopez). The appellant in Lopez was found in possession of a loaded firearm. (Id. at p. 135.) He was convicted and sentenced separately under section 12021, subdivision (e)(1) (unlawful possession of firearm) and section 12316, subdivision (b)(1) (unlawful possession of ammunition). (Id. at p. 134.) The Court of Appeal reversed the separate sentence for the ammunition offense. While possession of an unloaded firearm alone can aid a person committing another crime, possession of ammunition alone will not. (Id. at p. 138.) In prohibiting certain individuals from possessing either firearms or ammunition, the Legislature intended to prohibit these persons from combining firearms with ammunition. (Ibid.) While there may be instances when multiple punishment is lawful for possession of a firearm and ammunition, the instant case is not one of them. Where, as here, all of the ammunition is loaded into the firearm, an indivisible course of conduct is present and section 654 precludes multiple punishment. (Ibid.)

The People try to distinguish Lopez because some of defendants ammunition was not in the gun, but was on his person. We are not persuaded. The ammunition separate from the gun, like the ammunition in the gun, was possessed by defendant for the same purpose, allowing him to have a loaded firearm.

Applying the reasoning of Lopez, and heeding the California Supreme Courts admonition not to parse[] the objectives too finely in a section 654 analysis (People v. Britt (2004) 32 Cal.4th 944, 953), we conclude defendants offenses formed an indivisible course of conduct with the same intent and objective. Thus, the trial court should have stayed the sentence on count two. ( 654.)

DISPOSITION

The judgment is modified to stay imposition of sentence on count two. As modified, the judgment is affirmed. The trial court is directed to amend the abstract of judgment to reflect this modification and to check the box to reflect that defendant was sentenced pursuant to Penal Code section 667, subdivisions (b)-(i). The court is further directed to send a certified copy

of the amended abstract to the Department of Corrections and Rehabilitation.

SCOTLAND , P. J.

We concur:

NICHOLSON , J.

ROBIE , J.

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