P. v. Papenhausen
Filed 6/7/13 P. v. Papenhausen 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NOT TO BE PUBLISHED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opinion has not been certified for publication or ordered published for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
(Plumas)
>
THE PEOPLE, Plaintiff and Respondent, v. SCOTT EVERETT PAPENHAUSEN, Defendant and Appellant. | C071602 (Super. Ct. No. F11-01081) |
A
jury convicted defendant Scott Everett Papenhausen of selling or furnishing
methamphetamine (
ADDIN BA xc <@st> xl 38 s GEJDFO000001 xpl 1 l "Health & Saf. Code, § 11379, subd. (a)" Health & Saf.
Code, § 11379, subd. (a); count I), possession of methamphetamine ( ADDIN BA xc <@st> xl 38 s
GEJDFO000002 xpl 1 l "Health & Saf. Code, §
11377, subd. (a)" Health & Saf. Code, § 11377,
subd. (a)) as a lesser included offense to that charged in count II
(possession for sale, ADDIN
BA xc <@st> xl 27 s GEJDFO000003 xpl 1 l "Health & Saf. Code, § 11378" Health & Saf.
Code, § 11378), and misdemeanor resisting ( ADDIN BA xc <@st> xl 30 s
GEJDFO000004 xpl 1 l "Pen. Code, § 148, subd.
(a)(1)" Pen. Code, § 148,
subd. (a)(1)) as a lesser offense to that charged in count III (resisting by
means of threat or violence, ADDIN
BA xc <@st> xl 15 s GEJDFO000005 xpl 1 l "Pen. Code, § 69" Pen. Code, § 69). In connection with count II, the jury found
that defendant personally used a deadly or dangerous weapon, to wit, a ceramic
lamp (
ADDIN BA xc <@st> xl 32 s GEJDFO000006 xpl 1 l "Pen. Code, § 12022, subd. (b)(1)" Pen. Code, § 12022,
subd. (b)(1)). In
proceedings, defendant admitted two prior prison term
allegations (
ADDIN BA xc <@st> xl 29 s GEJDFO000008 xpl 1 l "Pen. Code, § 667.5, subd. (b)" Pen. Code, § 667.5,
subd. (b)) and a prior drug conviction allegation ( ADDIN BA xc <@st> xl 40 s
GEJDFO000009 xpl 1 l "Health & Saf. Code, §
11370.2, subd. (c)" Health & Saf. Code, § 11370.2,
subd. (c)).
Sentenced to state prison, defendant
appeals. He contends counsel rendered
ineffective assistance and the trial court abused its discretion in sentencing. We will affirm the judgment. We do find errors in the abstract of judgment
which must be corrected. Relevant facts
will be recounted in our discussion of defendant’s contentions.
I
Defendant contends counsel rendered
ineffective assistance at the suppression hearing because he failed to call
Vincent Villany to testify that the officers did not have his consent to enter
his residence to arrest defendant on a misdemeanor arrest warrant. Had Villany so testified at the suppression
hearing, defendant argues that his arrest would have been deemed invalid, the
methamphetamine found during the search incident to his arrest would have been
suppressed as fruit of the poisonous tree, and the charges would have been
dismissed. The People argue defense
counsel had a valid tactical reason not to call Villany to testify at the
hearing. We
conclude that the record is inadequate to evaluate whether counsel’s
performance was deficient in not calling Villany to testify at the suppression
motion.
Background
Defendant represented himself at the
preliminary hearing on February 1, 2012, when Deputy Sheriff Steve Clark testified
that in his presence, Deputy Sheriff Phillip Shannon got permission from the
homeowner (Vincent Villany) to enter the house.
Deputy Shannon testified at the hearing as well but was not asked about
Villany’s consent.
Defendant represented himself at arraignment
on February 16, 2012. Still representing
himself, defendant filed a motion to suppress, challenging his arrest and the
seizure of evidence incident to his arrest.
On March 9, 2012, defendant requested counsel and the trial
court appointed Douglas Prouty.
On May 2, 2012, defense counsel filed a ADDIN
BA xc <@$cs> xl 8 s GEJDFO000010 Pitchess
attached to which were the reports of Deputies Clark and Shannon. Deputy Clark stated in his report that
Villany consented to their entry to arrest defendant and Reatha Mercer on
arrest warrants. Deputy Shannon stated in
his report that Villany at first did not want them to enter but because
defendant had lied to him about outstanding warrants, Villany consented.
At the May 2, 2012, hearing on the ADDIN
BA xc <@$cs> xl 8 s GEJDFO000010 Pitchess
motion and defendant’s suppression motion, defense counsel stated that
defendant’s suppression motion was based on his belief that the officers did
not have sufficient cause even with the warrant. Deputy Clark testified that he knew that
there was an outstanding warrant for defendant’s arrest. On December 26, 2011, the deputy received information from an
anonymous informant that defendant was located at a particular residence owned
by Villany. Several hours later,
Deputies Clark and Shannon, and Reserve Deputy Brian Smith went to the
residence and contacted Villany. Villany
explained that defendant was on the third floor and gave the officers
permission to enter. Reserve Deputy Smith
stayed at the back of the house while Deputies Clark and Shannon entered the
exterior door to the second story.
Deputy Clark announced his presence but received no reply. Deputy Clark proceeded up the stairs to the
third floor loft and again announced his presence. Again there was no reply. Deputy Clark found defendant on the floor in
a closet. The deputy ordered defendant
to put his hands to his side, defendant refused, and the deputy pointed his
Taser at defendant. Defendant crawled
towards a butcher knife two to three feet away and ignored the deputy’s
orders. Defendant stood up and grabbed a
lamp. Deputy Clark grabbed defendant and
the two deputies then took defendant into custody.
On cross-examination, Deputy Clark
explained that he had known about the arrest warrant for defendant for two to
six months but had not seen defendant.
When the deputies arrived at Villany’s residence, Deputy Shannon first
spoke with Villany. Deputy Clark
approached them and heard Deputy Shannon “again†ask Villany for permission to
enter the residence. Defense counsel
then inquired: “[I]sn’t it true that Mr.
Villany initially told Deputy Shannon
he did not want you going into the residence?â€
(Italics added.) Deputy Clark
answered, “Not that I know of. I did not
hear any of that -- [¶] . . . [¶] . . . if that did
happen.â€
Only Deputy Clark testified at the
suppression hearing and the matter was submitted without argument. The trial court denied the suppression
motion.
At trial which began on May 8,
2012, the defense
called Villany to testify. Villany
explained that Mercer and defendant had been living in his home for about 45
days prior to defendant’s arrest. Upon
the deputies’ arrival, Villany claimed that he asked Deputy Shannon whether he
had a warrant to be on his property.
Although the deputy claimed he had one, he refused to show it to Villany
and threatened to take him to jail if he did not move out of the way. Another deputy was also present. Villany denied having been asked for his
consent to enter his residence. He did
not tell them they could not enter.
Defense counsel asked what happened next. Villany responded, “They said, ‘Is Scott here?’ I said, ‘Well, yes, he’s upstairs.’ And they said, ‘Is the door open, the door at
the top of the stairs?’ I says [
went up the stairs, opened the door, walked inside the second level, and I
said, ‘Scott,’ kind of loudly, twice, and got no reply. [¶]
The deputies followed, pretty much, right in back of me. And asked, ‘Well, where’s he staying?’ ‘Up there.’
And I pointed to . . . the upper level. And the two deputies went on upstairs.†Villany opened the second story door when the
deputies asked him to do so. Villany
denied that the deputies announced their presence. Two deputies went up the stairs to the third
level while Villany stayed in the living room.
After some noise and shouting, defendant, in handcuffs, was escorted
down the stairs by the deputies.
Meanwhile, Villany pointed out a downstairs bathroom where Mercer was
found.
On cross-examination, Villany denied
that Deputy Shannon told him that there was an arrest warrant for defendant. Then, Villany admitted that Deputy Shannon
explained that he had a warrant for defendant.
When Villany found out, he admitted that he was “extremely mad.†Villany denied that he told the deputies to
go ahead and arrest defendant. Instead,
Villany claimed that “[t]here was no conversation about warrants or drugs at
all, until they actually brought [defendant] down to the lower level.†Villany then admitted that there was a
conversation about a warrant when he first spoke with Deputy Shannon. Villany stated that he asked Deputy Shannon
if he had a warrant to be on his property and that the deputy responded
affirmatively but refused to show it to Villany, claiming the deputy said, “ ‘we
don’t need one, get out of the way or you’re going right to jail.’ †Villany had called the sheriff’s office to
say the deputies acted in a professional manner. He did not complain about Deputy Shannon’s
conduct, explaining he thought the deputy was “ ‘just excited at the time.’ â€
Analysis
To establish ineffective assistance
of counsel, defendant must demonstrate that counsel’s performance was deficient
and that defendant suffered prejudice as a result. ( ADDIN BA xc <@cs> xl 89 s
GEJDFO000011 xhfl Rep xpl 1 l "
(1984)
Strickland v. Washington (1984) 466 U.S. 668, 687-688, 691-692 [80
L.Ed.2d 674, 693, 696]; ADDIN
BA xc <@cs> xl 47 s GEJDFO000012 xhfl Rep xpl 1 l "People v. Ledesma (1987)
xpl 2 Ledesma).) To demonstrate deficient performance,
defendant “must show that trial counsel failed to act in a manner to be
expected of reasonably competent attorneys acting as diligent advocates.†( ADDIN BA xc <@cs> xl 40 s
GEJDFO000013 xhfl Rep xpl 1 l "
Cal.3d 412, 425" People v. Pope (1979) 23 Cal.3d 412, 425.) “ ‘Reviewing courts will reverse
convictions on the ground of inadequate counsel only if the record on appeal
affirmatively discloses that counsel had no rational tactical purpose for his
act or omission.’ †( ADDIN BA xc <@cs> xl 42 s
GEJDFO000014 xhfl Rep xpl 1 l "
Cal.4th 929, 980" People
v. Zapien (1993) 4 Cal.4th 929, 980.) Where “ ‘ “the record on appeal
sheds no light on why counsel acted or failed to act in the manner
challenged[,] . . . unless counsel was asked for an explanation and
failed to provide one, or unless there simply could be no satisfactory
explanation,†the claim on appeal must be rejected.’ †( ADDIN BA xc <@cs> xl 50 s
GEJDFO000015 xhfl Rep xpl 1 l "
15 Cal.4th 264, 266.) “[A]
claim of ineffective assistance is more appropriately made in a habeas corpus
proceeding, in which the attorney has the opportunity to explain the reasons
for his or her conduct.†( ADDIN BA xc <@cs> xl 42 s
GEJDFO000016 xhfl Rep xpl 1 l "
Cal.4th 926, 936" People
v. Wilson (1992) 3 Cal.4th 926, 936.)
“Generally, . . . prejudice
must be affirmatively proved.†( ADDIN BA xc <@$cs> xl 35 s
GEJDFO000012 xhfl Rep xpl 1 Ledesma,
supra, 43 Cal.3d at p. 217.) To demonstrate prejudice, defendant must show
that “ ‘there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.’ †( ADDIN BA xc <@$id> xl 18 s ID
xhfl Rep xpl 1 Id.
at pp. 217-218; ADDIN
BA xc <@cs> xl 45 s GEJDFO000017 xhfl Rep xpl 1 l "People v. Williams (1997)
Based on Villany’s testimony at
trial and defense counsel’s questioning of Deputy Clark at the suppression
hearing, defendant claims and the People agree that it can be reasonably
inferred that counsel was aware, at the time of the suppression hearing, that
Villany did not voluntarily consent to the deputies’ entry into his home. We disagree.
The record sheds no light on why
defense counsel did not call Villany to testify at the suppression
hearing. We can fathom a satisfactory
reason. Defense counsel’s questioning of
Deputy Clark at the suppression hearing whether Villany had “initially†told
Deputy Shannon that they were not allowed into the residence does not
necessarily mean that defense counsel was aware that Villany would testify at
trial that he did not voluntarily consent or that he had been threatened. Defense counsel’s questioning of Deputy Clark
at the suppression hearing reflects that he had read the report of Deputy
Shannon who had stated that Villany initially refused to consent but when he
learned that defendant had lied about not having any warrants, Villany then
consented.
Although Villany testified at trial
that he had spoken to defense counsel two to three weeks before trial began and
that counsel had asked “some questions about what happened that night,†Villany
did not testify that he had explained to defense counsel at that time or prior
to the suppression hearing that he never consented to the deputies’ entry into
his home or that he had been threatened with jail if he did not move out of the
way. Also, Villany may have given
defense counsel conflicting information.
On cross-examination, Villany gave inconsistent statements about his
consent, first denying any discussion with Deputy Shannon about a warrant and
then admitting that he had asked about a warrant. Villany also admitted that he was extremely mad
when told that defendant had an arrest warrant and that defendant had lied to
Villany. Villany never complained to the
sheriff’s office about the deputies’ conduct but instead told the sheriff’s
office that the deputies had acted professionally.
Defense counsel has not had an
opportunity to explain his decision not to call Villany at the suppression hearing. Defendant has failed to demonstrate on this
record that counsel’s performance was deficient. Defendant is relegated to filing a petition
for a writ of habeas corpus.
II
Defendant contends the trial court
abused its discretion in imposing a consecutive term for the subordinate
offense of possession of methamphetamine to the principal offense of furnishing
or selling methamphetamine. We reject
this contention.
Background
The search incident to defendant’s
arrest revealed a digital scale with white residue, a smoking pipe, and three
cell phones in the room where defendant was found. On his person, defendant had a baggie with
0.52 grams of methamphetamine and $369 in cash.
Mercer was found in the first floor bathroom. Prior to the deputies’ arrival, she had smoked
methamphetamine three or four times that day.
Defendant had provided the methamphetamine to her.
Prior to sentencing, both the
prosecutor and defense counsel
filed written sentencing memorandums.
Defense counsel argued for concurrent sentencing, arguing the
furnishing/selling to Mercer and his possession “all occurred not only in the
same place but in a relatively short time period as well. Those circumstances indicate the single
period of aberrant behavior which would indicate concurrent sentences would be
appropriate.†The prosecutor sought
consecutive sentencing, arguing that the crimes were predominantly independent
of each other, were separate acts of violence, and were committed at different
times or separate places. The prosecutor
also cited aggravating factors in support of consecutive sentencing.
At sentencing, the trial court
stated that it had read the probation report and the parties’ respective
sentencing memorandums. Both defense
counsel and the prosecutor argued their respective positions on sentencing. Thereafter, the trial court imposed, inter
alia, the midterm of three years for furnishing/selling, the principal count,
and a consecutive one-third the midterm or eight months for possession of
methamphetamine, one of the subordinate counts, finding that the crimes were
predominantly independent of each other and committed at different times. The court stated: “I agree with you, [defense counsel], that
the probation report doesn’t accurately reflect what’s required by the Court to
assess whether or not it should be consecutive or concurrent. And what we look at are the Rules under [California
Rules of Court, rule] 4.425(a)(1), whether or not the crimes were predominantly
independent of each other. And at trial
we certainly heard evidence that the furnishing or the giving of the methamphetamine
to Ms. Mercer was earlier in the morning and the methamphetamine was found on
the Defendant later in the evening when he was arrested were independent,
predominantly independent of each other.
So I’m going to find that to be true under [rule] 4.425(a)(1). The [ ADDIN BA xc <@ru> xl 16 s
GEJDFO000018 xpl 1 l "Rule 4.425(a)(1)"
rule 4.425(a)(2)]
factor is separate acts of violence does not seem to apply. Under [ ADDIN BA xc <@ru> xl 10 s
GEJDFO000019 xpl 1 l "Rule 4.425" rule 4.425(a)(3)],
the crimes were committed at different times or separate places. Although they might not have been separate
places, it does appear to the Court that they were committed at different
times, earlier in the day and later in the evening, even though they were the
same day. It does appear to me that they
were found -- or the crimes were committed at different times.†The trial court also cited factors in
aggravation, that is, defendant’s violent conduct of using the lamp in a
menacing manner, defendant’s priors were numerous and of increasing
seriousness, defendant served a prior prison term, he was on probation when he
committed the offense, and his prior performance on probation or parole was
unsatisfactory. Defense counsel posed no
objection.
Analysis
A trial court’s sentencing decision
is reviewed for abuse of discretion. ( ADDIN BA xc <@cs> xl 45 s
GEJDFO000020 xhfl Rep xpl 1 l "
Cal.4th 825, 847" People
v. Sandoval (2007) 41 Cal.4th 825, 847.) “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. [Citation.]
In the absence of such a showing, the trial court is presumed to have
acted to achieve legitimate sentencing objectives, and its discretionary
determination to impose a particular sentence will not be set aside on review.†’ [Citations.]
Second, a ‘ “decision will not be reversed merely because
reasonable people might disagree. ‘An
appellate tribunal is neither authorized nor warranted in substituting its
judgment for the judgment of the trial judge.’ †’ [Citations.]
Taken together, these precepts establish 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.â€
(
ADDIN BA xc <@cs> xl 48 s GEJDFO000021 xhfl Rep xpl 1 l "People v. Carmony (2004)
ADDIN
BA xc <@ru> xl 51 s GEJDFO000022 l "California Rules of Court, rule 4.425(a)(1) and (3)" California Rules of
Court, rule 4.425(a)(1) and (3) provide, respectively, that in imposing a consecutive
or concurrent sentence, the trial court considers whether “[t]he crimes and
their objectives were predominantly independent of each other†and “committed
at different times or separate places, rather than being committed so closely
in time and place as to indicate a single period of aberrant behavior.†California Rules of Court, ADDIN
BA xc <@ru> xl 13 s GEJDFO000023 l "Rule 4.425(b)" rule 4.425(b) provides that “[a]ny
circumstances in aggravation or mitigation may be considered in deciding
whether to impose consecutive rather than concurrent sentences, except: [¶]
(1) [a] fact used to impose the
upper term; [¶] (2) [a] fact used to otherwise enhance the
defendant’s prison sentence; and [¶]
(3) [a] fact that is an element
of the crime may not be used to impose consecutive sentences.â€
Defendant contends the trial court
abused its discretion in imposing consecutive sentences by relying upon the
factors that the crimes were predominately independent of each other and were
committed at different times. With
respect to the trial court’s citation of aggravating factors to support
imposition of consecutive sentences, defendant only argues “[t]his is refuted
by the fact that the court chose the middle term for the principal offense and
rejected the upper term.â€
Defendant has failed to demonstrate
an abuse of discretion. Defendant
furnished or sold methamphetamine to Mercer and was found in possession of a
half-gram of methamphetamine on his person later that same day (he was no
longer in possession of the methamphetamine he provided to Mercer). This fact supported the trial court’s findings
that the crimes were predominantly independent and committed at different
times. Moreover, there were several
aggravating factors, none of which defendant challenges on appeal, which
supported a consecutive sentence. Had
the trial court used these aggravating factors to impose the upper term on the
principal count, defendant would now be complaining of dual use. We find no abuse of discretion
III
We note errors in preparation of the
abstract of judgment. Defendant was
acquitted of possession of methamphetamine for sale as charged in count II but
was convicted of the lesser included offense of possession of
methamphetamine. The abstract of
judgment properly refers to ADDIN
BA xc <@st> xl 36 s GEJDFO000024 l "Health and Safety Code section 11377" Health and Safety Code
section 11377, subdivision (a), but misdescribes the offense as possession
for sale. The abstract also erroneously
reflects that defendant was sentenced as a two-strike offender. A strike prior was neither alleged nor
proved. We will order the abstract
corrected accordingly.
DISPOSITION
The trial court is directed to
prepare a corrected abstract of judgment, properly describing count II as possession
of methamphetamine and not checking
the box for a two-strike offender, and to forward a certified copy of the
corrected abstract to the Department of Corrections and Rehabilitation. The judgment is affirmed.
BLEASE , Acting
P. J.
We concur:
MURRAY , J.
HOCH , J.
name="_ftn1" title="">[1] ADDIN BA xc <@cs> xl 40 s
GEJDFO000010 xhfl Rep l "Pitchess v. Superior
Court
11 Cal.3d 531
ADDIN BA xc <@$cs> xl 8 s GEJDFO000010 xpl 1 Pitchess).
name="_ftn2" title="">[2] At trial, Deputy Shannon explained that he
contacted Villany when they first arrived and that Villany did not consent to
their entry. When Deputy Shannon
explained that defendant and Mercer both had outstanding warrants, Villany
became upset and stated that he had asked defendant before he moved in and
defendant claimed he had no warrants.
Villany then consented to the deputies’ entry.
