P. v. Wanless

Filed 2/4/09 P. v. Wanless 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(Shasta)

----

Following the denial of his motion to suppress evidence, a jury convicted defendant Michael Calvin Wanless of possessing methamphetamine for sale. The court found that defendant was on bail at the time of the offense, had 14 prior serious felony convictions, and had served two separate prison terms. He was sentenced to state prison for 27 years to life.

On appeal, defendant contends (1) his suppression motion should have been granted, (2) the prosecutor committed prejudicial misconduct, (3) the trial court abused its discretion in refusing to strike the prior convictions for purpose of sentencing, and (4) his 27-year-to-life sentence is constitutionally cruel and/or unusual punishment. We reject each claim and shall affirm the judgment.

DISCUSSION

I

Defendant contends the search and seizure were the product of an unlawful detention and, thus, the trial court erred in denying defendants motion to suppress evidence. We disagree.

Parole Agent Larry Welch received a telephone call from Deputy Sheriff Wes Collette wanting defendants address because defendant was a suspect in a bank robbery. Welch determined that defendant was not on parole.

The following morning, Welch and Agent Dianna Day went to a motel room to arrest a parolee named Jeffrey Hankins and to search his room because he had recently tested positive for methamphetamine. When Hankins opened the door, Welch saw there were four people in the room--Hankins, his wife, and two adult males, one whom was later determined to be defendant.

Defendant got up from the side of the bed where he had been sitting, said he was a prior parolee, claimed Welch knew him, and stated he wanted to leave. Welch, not having a clue who defendant was, requested his name and identification. Defendant gave his name, which Welch recognized as the name of the robbery suspect about whom Deputy Collette inquired. Welch told defendant he could not leave until he was identified. Defendant became upset and repeatedly put his hands in and out of his pockets, even though Welch told him to keep them in plain view. Eventually, defendant said he had a knife and gave it to Welch.

A hypodermic needle was found near the bed in the area where defendant had been sitting, and he was arrested. Defendant was searched, and 12 baggies containing methamphetamine were found on him.

Citing People v. Harvey (1958) 156 Cal.App.2d 516 (hereafter Harvey), and People v. Madden (1970) 2 Cal.3d 1017 (hereafter Madden), defendant contends the information provided by Deputy Collette to Agent Welch--that defendant was a suspect in a bank robbery--cannot be considered in determining whether the detention was lawful. Harveyand Madden require that when the first officer passes off information through official channels that leads to arrest, the officer must also show [the] basis for his probable cause. In other words, the so-called Harvey-Madden rule requires the basis for the first officers probable cause must be something other than the imagination of an officer who does not become a witness. (People v. Ramirez (1997) 59 Cal.App.4th 1548, 1553; People v. Lazanis (1989) 209 Cal.App.3d 49, 61 [Harvey-Madden rule applies to detentions as well as to arrests].)^[1]

In his view, absent that evidence (since Deputy Collette did not testify), Agent Welch lacked reasonable cause to detain defendant. This is so, he claims, because there was no objective basis for a suspicion that he was involved in criminal activity.

The trial court ruled that even without consideration of the evidence challenged based on the Harvey-Madden rule, the detention was appropriate for officer safety. We agree.

When, in the course of initiating a search under warrant of a private residence for illegal drugs or related items, police officers encounter on the premises a person whose identity and connection to the premises are unknown and cannot immediately be determined without detaining the person, the officers may constitutionally detain him or her for the period of time required and in the manner necessary to make those determinations and to protect the safety of all present during the detention. If the person is determined to be an occupant of the home to be searched [meaning resident], he or she may be detained, pursuant to [Michigan v. Summers (1981) 452 U.S. 692 [69 L.Ed.2d 340]], for the duration of the search. [Citation.] If the person is determined not to be an occupant, further detention is proper only if justified by other specific, articulable facts connecting him or her to the criminal activity suspected to be occurring on the premises or establishing a danger to the officers if the person is released. (People v. Glaser (1995) 11 Cal.4th 354, 374 (hereafter Glaser).)

Agents Welch and Day had probable cause to arrest Hankins, and to search the motel room he occupied, because of his parole status and the fact that he had recently tested positive for methamphetamine. Defendant does not claim otherwise. When they unexpectedly encountered defendant and another male there, they did not know the relationship of either man to Hankins or to the motel room. Thus,defendants initial detention for the officers to make these determinations was appropriate. (Glaser, supra, 11 Cal.4th at p. 374.)

Defendant argues that once the agents were satisfied that defendant was who he claimed to be, that he was not on parole, and that he was only a visitor to, not an occupant of, the room, they should have permitted him to leave as he had requested. We are not persuaded.

In the narcotics business, firearms are as much tools of the trade as are most commonly recognized articles of narcotics paraphernalia. [Citation.]. (Glaser, supra, 11 Cal.4th at p. 367.) The police are not required to ignore the danger that persons possibly involved in crime, who leave the premises, may return during the search, with potentially fatal consequences for themselves or the officers. (Id.at p. 373.)

Because Welch and Day had probable cause to believe that Hankins was involved with drugs, they also had reason to fear there may be firearms secreted in the room or nearby available to the occupants. This fear was bolstered by the officers knowing that Hankins was a parolee and that defendant had been a parolee, meaning each had been convicted of at least one felony offense and had served a prison sentence. Consequently, defendants continued detention was permissible based on the officers concerns for their safety.

Defendant attempts to distinguish the situation in Glaser from his. He observes that Glaser involved the service of a search warrant which was issued by a neutral magistrate rather than an officer in the field [having] made the critical determination that the police should be given a special authorization to thrust themselves into the privacy of a home and because the search here did not occur on a proverbial dark and stormy night, as was the case in Glaser. The distinctions are immaterial; the critical point is that Hankinss positive methamphetamine tests and his being on parole provided probable cause to arrest him and to search his room; as previously noted, defendant does not claim otherwise. Nor does defendant provide any reason to believe a search of a residence conducted on a dark and stormy night by several officers is more dangerous than a search conducted in the morning of a sunny day by two officers confronted with a female and three males, two of whom are known felons.

Defendant also claims his detention was unduly prolonged because Agents Welch and Day had no justification for prolonging [his] detention after receiving [his] drivers license. However, for reasons explained above, defendants continued detention was just for the officers safety.

II

Defendant contends the prosecution committed prejudicial misconduct when (1) a prosecution witness violated the trial courts pretrial order that no testimony would be permitted about defendant being a suspect in a bank robbery, (2) the prosecutor commented during closing argument on matters outside the record, and (3) the prosecutor commented on defendants failure to testify.

A prosecutors behavior violates the federal Constitution when it is so egregious it renders the trial unfair and constitutes a denial of due process. (People v. Gionis (1995) 9 Cal.4th 1196, 1214.) Under California law, conduct by a prosecutor that does not render a trial unfair is nevertheless misconduct if it involves the use of deceptive or reprehensible methods in an attempt to persuade the court or jury. (People v. Espinoza (1992) 3 Cal.4th 806, 820.) To preserve a claim of prosecutorial misconduct for appellate review, a defendant must timely object and request an admonition, unless an admonition would be futile. (People v. Samayoa (1997) 15 Cal.4th 795, 841.)

A

Prior to trial, in response to defendants request, the trial court ruled it would preclude the prosecution in its case in chief initially from putting on any evidence with regards to the bank robbery or any alleged association between [defendant] and the bank robbery, and, of course, to ensure that that ruling is effective, you [the prosecutor] will need to so advise all your witnesses . . . .

During Officer Todd Cogles direct testimony, the prosecutor elicited that Cogle had searched and removed items from defendant at the motel room. The following then occurred: Q What did you do with those items after you removed them from the defendants person? [] A They were later booked into property and evidence at the Redding Police Department. [] Q Okay. Did you take possession of them after you removed them from the defendant? [] A If I can refer to my report? [] Q Sure. Would that refresh your recollection. [] A Yes, it would. The -- all the -- of the bag[gie]s that we located on [defendants] person were placed into paper bags and put on the bed in the hotel room. The Shasta County Sheriffs Department was conducting another investigation and they were serving a search warrant at that motel room. They wished to have left everything intact.

Defendant moved for a mistrial, claiming the reference to the Shasta County Sheriffs Department conducting another investigation violated the pretrial order that such evidence not be mentioned because it would lead the jury to speculate that defendant was involved in other illegal activity. The prosecutor responded the challenged evidence was innocuous. Concluding the reference shouldnt have been made, the trial court nonetheless denied the mistrial motion. Then, with the agreement of the parties, the court instructed the jury: The [P]eople and the defendant stipulate that Jeffrey Hankins and his wife, Kari Hankins, were the tenants of room 210 at the Budget Inn Motel on November 16, 2006. And that [defendant] was only a visitor to that room that morning. When state law enforcement agents Welch and Day went to room 210 of the Budget Inn Motel that morning, they expected to encounter only Jeffrey and Kari Hankins, not [defendant] or [the other male].

In defendants view, the prosecutor committed prejudicial misconduct by eliciting testimony from Officer Cogle that defendant was the subject of another investigation; thus, the trial court erred in denying the mistrial motion. The contention fails.

First, the claim of prosecutorial misconduct is forfeited because at trial, defendant did not object that Cogles testimony was the product of such misconduct. (People v. Young (2005) 34 Cal.4th 1149, 1184 [defendant may not claim prosecutorial misconduct for appeal unless he objected on the same ground in the trial court.].)

Second, no prosecutorial misconduct occurred. The question asked of Officer Cogle was whether he had taken possession of the items that he removed from defendants person, not what was done with the items or why they were placed on the bed. Cogles answer of Yes was responsive to the question; however, the rest of his answer regarding where the items were placed and why they were placed there was totally gratuitous and does not support a claim of misconduct by the prosecutor.

B

Defendants claim that the prosecutor committed misconduct by commenting on matters outside the record arises as follows:

Officer Cogles search of defendant disclosed 12 baggies containing methamphetamine, a total weight of 27.1 grams.^[2] Expert testimony established that if the baggies were sold separately, their total street value would be approximately $1,600; if sold in bulk, they were worth about $800. It was the experts opinion that based on the amount and its packaging, the methamphetamine was possessed for sale.

In addition to the methamphetamine, defendant possessed $3,000 in cash at the time of his arrest. He said the money was part of a jackpot that he had won at Rolling Hills Casino and that he had documentary evidence to support the claim. It was, therefore, agreed that if the prosecutor introduced evidence of the cash in support of his argument that the methamphetamine was possessed for sale, the defense could introduce the rebutting documentary evidence from the casino.

No evidence about the money was introduced during trial. During argument, however, after stating possession for sale was shown by (1) the amount of drugs possessed, (2) the manner in which it was possessed, and (3) the fact it would be a 19-day supply for one person, the prosecutor repeatedly pointed out the quantity was worth $1,500 and, in one instance, rhetorically asked why anyone would carry that amount of cash instead of leaving it at home.

Defendant argues the prosecutors repeated reference to the $1,500 worth of methamphetamine on him was misconduct because it violated the agreement that no mention be made of the money found on defendant and it was not based on evidence in the record.

Again, the contention is forfeited because in the trial court, defendant did not object on this ground nor request an admonition. (People v. Samayoa, supra, 15 Cal.4th at p. 841.) In any event, it fails on the merits.

The prosecutors argument was based on evidence the amount of methamphetamine defendant had on him was worth about $1,500 in street value. The prosecutor never referred to defendant having $1,500 in cash on him.

C

Defendant contends the prosecutor committed misconduct during closing argument by impliedly commenting on defendants failure to testify when he criticized [defendants] failure to explain why he had $1,500 worth of methamphetamine on him. No such error occurred.

In Griffin v. California (1965) 380 U.S. 609 [hereafter Griffin], the United States Supreme Court held that the prosecution may not comment upon a defendants failure to testify in his or her own behalf. Its holding does not, however, extend to bar prosecution comments based upon the state of the evidence or upon the failure of the defense to introduce material evidence or to call anticipated witnesses. [Citations.] Nonetheless . . . a prosecutor may commit Griffin error if he or she argues to the jury that certain testimony or evidence is uncontradicted, if such contradiction or denial could be provided only by the defendant, who therefore would be required to take the witness stand. [Citations.]. (People v. Bradford (1997) 15 Cal.4th 1229, 1339.)

In closing argument, the prosecutor stated: First question is, what was the defendant doing at that motel room at 9 in the morning with all this methamphetamine packaged that way on him? Why would he have twelve individually packaged baggies of methamphetamine hidden in his pocket and inside his pants, if that was just for his personal use? What -- why would he be walking around with fifteen hundred dollars worth of methamphetamine if it was for personal use? Why wouldnt he have left most of it at the house and just brought what he was going to use for himself or with the Hankins[es] or whoever else and --

Defense counsel objected that the prosecutors inferences and suggestions constituted comments on [defendants] exercise of his [c]onstitutional right not to testify. The trial court overruled the objection.

On appeal, as he did in the trial court, defendant claims that because the prosecutors questions were essentially ones that only he, defendant, could answer, the argument was comment on his failure to testify. We disagree. As we will explain, the challenged statements were a legitimate comment on the state of the evidence.

Illustrative is People v. Mayfield (1993) 5 Cal.4th 142 (hereafter Mayfield).) Overwhelming evidence established that Mayfield killed Ora Mae Pope and Edward Moreno with a shotgun, and told other witnesses, including Patricia Harper, he intended to kill the victims as well as Popes son, Byron. (Id.at 164-165) After the killings, Mayfield gave the shotgun to Harper, telling her that killing Pope was an accident, that the killing of Moreno then became necessary, and that he was going to go wait for Byron and get him too. (Ibid.) Although Mayfield did not testify, the defense to the killing of Pope was that it was accidental. (Ibid.)

In urging the jury to reject Mayfields claim of accident, the prosecutor argued the evidence pointed away from an accident, including Mayfields own words on tapes of his interview and his conduct after the killing. (Mayfield, supra, 5 Cal.4th at p. 178.) The Mayfield court summed up the prosecutors comments as follows: [T]he prosecutor asked, How about remorse? Has the defendant expressed remorse for this accident? What does he do after he kills Mrs. Pope that he says is an accident? The prosecutor then interpreted defendants behavior on returning to Patricia Harpers house after the killings. And what are his last words to Pat Harper as he leaves the house? Is it, My God, what have I done? What am I going to do? No. His last words . . . were, Now Im going to get Byron, too. [] There wasnt any remorse. . . . (Ibid.)

Mayfield asserted the comments were Griffinerror. (Mayfield, supra, 5 Cal.4th at p. 178.) The California Supreme Court disagreed: The remarks, viewed in context, cannot be seen as other than a fair comment on the state of the evidence that falls outside the purview of Griffin. [Citation.] If [Mayfields] shooting of Ora Mae Pope was an accident, then why, the prosecutor wondered rhetorically, did [Mayfield] behave as the evidence suggested he did after the event? (Ibid.)

The circumstances in this case are similar to those in Mayfield. There was expert evidence as to the amount of the methamphetamine, its being packaged in twelve baggies, and its street value of around $1,500. The prosecutors comments all related to this evidence, essentially asking the jury, rhetorically, to let defense counsel explain how such circumstances could be consistent with personal use. When viewed in context, the prosecutors statements were no more than fair comments on the state of the evidence.

III

Defendant asked the trial court to strike all of his 14 prior serious felony convictions, pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497, on the grounds that they were remote because they occurred during a single case in 1982 and the current offense was relatively minor in that it was neither a violent nor serious felony. The court denied the motion.

Defendant argues resentencing is required because the trial court failed to adequately exercise its discretion in that it over-reli[ed] on his past record and failed to adequately consider the minor nature of the current offense. We disagree.

[I]n ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law, . . . the court in question 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.)

Here, the evidence was that defendant had 14 prior serious felony convictions, all occurring out of a crime spree in 1982 -- one for attempted murder; nine for robbery; three for attempted robbery; and one for burglary. He also had a burglary conviction in 1973; a felony drug conviction in 1993; parole violations in 1996, 1997, 1998, and 2003; and a felony theft conviction in 2003.

In denying defendants request, the trial court recounted defendants prior record, noting that his first felony conviction was when he was 20 years old, that he was now about 50, and that between his sentences and his multiple parole violations he had no significant crime-free period. Thus, based upon defendants record, the court concluded the prospect of his avoiding a further felony conviction appeared very slight, and he was squarely within the scheme of people who should be dealt with as a multiple strike offender.

Defendants record speaks for itself, clearly supporting the trial courts finding that defendant was not outside the spirit of the Three Strikes law such that he should be treated as if he had not previously been convicted of those serious felonies. (People v. Williams, supra, 17 Cal.4th at p. 161.) There was no abuse of discretion.

IV

Lastly, defendant contends his sentence of 27 years to life violates the ban against cruel and/or unusual punishment under both the California and federal Constitutions. His supporting arguments are unconvincing.

The Eighth Amendment proscription against cruel and unusual punishment contains a narrow disproportionality principle that prohibits imposition of a sentence grossly disproportional to the severity of the crime. (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 both 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 fails to demonstrate his circumstances constitute such a rare case. The gravity of his offense is determined by considering both the present offense and his criminal history. Even if his possession of methamphetamine for sale could be said to be a relatively mild offense when compared with many offenses, the fact remains that he has a criminal history of 14 prior serious felony convictions, two non-strike convictions, two prior prison terms, and four parole violations--all of which occurred from 1973 through 2006. Considering that defendant is a recidivist thief and drug user who has committed multiple crimes of violence, the sentence is not disproportional to his current offense.^[3]

Under the California Constitution, a punishment may be cruel or unusual if 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, 424-425.) In making this determination, we look at the nature of the offense and the offender as well as compare the punishments imposed within California for more serious offenses and in other jurisdictions for similar offenses. (Id.at pp. 425-428.)

For the same reasons that 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 with offenses that are deemed more serious felonies than defendants possession for sale, he cites crimes all of which except for one are serious felonies (Pen. Code,  1192.7, subd. (c)), noting their punishment is considerably less than the term he received.^[4] For example, he notes the penalty for second degree murder is 15 years to life and the punishment for rape is a maximum of eight years. What defendant overlooks is they are not three strike sentences. If a person with 14 prior serious felony convictions, like defendant, committed those crimes, he or she would receive a sentence not less than defendants. Therefore, his intrastate punishment comparison fails.

As to interstate comparison, defendant essentially argues that even considering his recidivist record, Californias Three Strikes law is still among the most stringent in the nation. However, [t]hat Californias punishment scheme is among the most extreme does not compel the conclusion that it 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.)

DISPOSITION

The judgment is affirmed.

SCOTLAND , P. J.

We concur:

SIMS , J.

BUTZ , J.

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^[1] In the trial court, defendant raised a Harvey-Madden objection in his written suppression motion, again during the presentation of evidence, and again at argument.

^[2] It was stipulated that one ounce equals 28.35 grams.

^[3] Since defendant has failed to show that his sentence is disproportional to his current offense, neither intrastate nor interstate comparison of other offenses is required.

^[4] The single offense defendant cites that is not a serious felony is oral copulation with a person under 14 years of age and a 10-year difference in age (Pen. Code,  288a, subd. (c)), which has a maximum punishment of eight years. The sentence for a defendant with 14 prior serious felony convictions, as is the case here, would be 25 years to life.