P. v. Williams

P. v. Williams

Filed 5/15/08 P. v. Williams 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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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Defendant was convicted by a jury of possession of a firearm by a felon (Pen. Code,  12021, subd. (a)(1)), and the trial court found he committed a prior serious felony within the meaning of the three strikes law (Pen. Code,  667, subds. (b)-(i)) and served a prison term for that felony within five years of the current offense (Pen. Code,  667.5, subd. (b)). He was sentenced to state prison for an aggregate term of three years eight months.

Defendant appeals contending the trial court erred in instructing the jury on flight and abused its discretion in denying his motion to strike the prior conviction finding. We affirm the judgment.

Facts and Proceedings

On the morning of June 28, 2006, agents of the State Department of Justice Bureau of Narcotic Enforcement were conducting surveillance at two adjacent businesses on Florin Road in Sacramento. They had a warrant to search one of the businesses, at 1387 Florin Road, and intended to conduct a probation search at the other, the R&B Fashion Boutique at 1389 Florin Road. The targets of the search were Reginald Bowers and Dorothy Williams.

Dorothy Williams arrived at R&B Fashion Boutique around 10:41 a.m. Defendant arrived about an hour later and was seen going in and out of the boutique and loitering outside.

Around the same time, Michelle F., an employee of Paychex, was visiting businesses in the area, dropping off brochures and trying to drum up business for her companys payroll services. Shortly before 1:00 p.m., Michelle F. came to 1387 Florin Road and saw defendant outside talking on a cell phone. As she started to insert a brochure into the mail slot at 1387 Florin Road, defendant gestured for her to give it to him instead. She did so, then proceeded to R&B Fashion Boutique next door.

Michelle F. entered the boutique and approached Dorothy Williams, who was standing behind a counter. She introduced herself and began telling Williams about her company. Defendant entered the boutique shortly thereafter, moved behind the counter and sat down beside Williams.

As Michelle F. continued her presentation to Williams and defendant, Reginald Bowers arrived outside and the agents moved in to arrest him and conduct their search. Defendants attention was diverted from Michelle F. to the commotion outside. Defendant got up, said something like, Mom, can you handle this? and then moved quickly to the back of the boutique.

After arresting Bowers, the agents split up and entered the two businesses. Those entering R&B Fashion Boutique detained Williams and Michelle F. They asked if there was anyone else in the store, and Michelle F. nodded her head yes. The agents then moved to the back of the store, where they found a door leading to a hallway connecting the various businesses together. Two of the agents proceeded out another door into an alley behind the businesses, while a third remained in the hallway. The agent in the hallway heard noise coming from a bathroom off the hallway and then saw defendant emerge from the bathroom.

Defendant was detained and searched for weapons. The officer then searched the bathroom. In a trash can inside the bathroom, the officer found a revolver, a white sock containing a plastic bag with .22 caliber rounds in it, a Swisher Sweet cigar and a Paychex brochure. The gun was on top of the other items. Defendant was asked about the items and denied ownership. Defendant claimed he had not seen the police arrive and had gone to the back of the boutique because he needed to use the bathroom. According to defendant, the first time he saw the police was when he emerged from the bathroom.

Defendants fingerprint was found on the Paychex brochure.

Defendant was charged with being a felon in possession of a firearm (Pen. Code,  12021, subd. (a)(1)) and with a prior prison term (id.  667.5, subd. (b)) for a prior serious felony within the meaning of the three strikes law (id.  667, subds. (b)-(i)). At trial, the parties stipulated to defendants prior conviction for purposes of the substantive offense. Defendant was convicted as charged. He was sentenced on the substantive offense to the low term of 16 months, doubled under the three strikes law, plus an enhancement of one year for the prior prison term.

Discussion

I

Flight Instruction

Over a defense objection, the trial court instructed the jury on flight as follows: If the defendant fled or tried to flee immediately after the crime was committed, that conduct may show that he was aware of his guilt. If you conclude that the defendant fled or tried to flee, it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled or tried to flee cannot prove guilt by itself.

Defendant contends this instruction was not warranted because there was no evidence of flight. Viewed in the light most favorable to the People, the evidence showed that, upon seeing the police, defendant hurried to the back of the store to hide the gun in order that it not be found in his possession. Defendant argues this is not flight.

The People disagree, arguing defendant tried to flee when he saw the police and hurried to the rear exit of the boutique. And, the People argue, once the prosecution relied on evidence of flight to prove guilt, a flight instruction was mandatory. (See Pen. Code,  1127c.)

Defendant counters that, because the flight instruction is designed to protect a criminal defendant, the court should not give it if the defendant does not want it.

We need not decide if the court erred in giving the flight instruction. Assuming error, it was harmless.

The flight instruction did not tell the jury there is evidence of flight. It left this determination to the jury. The jury was also instructed pursuant to CALCRIM No. 200 that some instructions may not apply, depending on the jurys determination of the facts. [I]nstructions are not considered in isolation. Whether instructions are correct and adequate is determined by consideration of the entire charge to the jury. (People v. Holt (1997) 15 Cal.4th 619, 677.)

The issue for the jury here was not whether defendant attempted to flee but whether he attempted to hide evidence. In addition to the flight instruction, the jury was instructed that attempts to hide evidence may show a consciousness of guilt. Defendants guilt turned on whether he had possession of the handgun before proceeding to the bathroom. Under the competing theories of the parties, either defendant possessed the handgun and hurried to the bathroom to get rid of it or he did not and went to the bathroom to make use of the facilities therein.

The jury was also instructed that false statements by the defendant may show a consciousness of guilt. When defendant was apprehended coming out of the bathroom, he denied knowing the police were in the area. However, Michelle F. testified that defendant hurried to the back of the boutique only after seeing the commotion outside in which Bowers was being arrested by the police.

Finally, Michelle F. testified she gave defendant a Paychex brochure and the officers testified the gun was found on top of a Paychex brochure with defendants fingerprint on it.

Defendant presented evidence suggesting that others had access to the bathroom. However, missing from this theory is any possible explanation for why anyone other than defendant would want to discard a handgun in the bathroom.

Defendant argues the evidence in this matter was close, as demonstrated by the fact the jury asked for a read back of the testimony of several witnesses. However, the evidence the jury requested was not favorable to defendant. At best, the jurys request was an attempt to confirm the evidence against him.

An error in giving a flight instruction is harmless unless it is reasonably probable the result would have been more favorable to defendant if the instruction had not been given. (See People v. Guiton (1993) 4 Cal.4th 1116, 1129-1130; People v. Wright (1988) 45 Cal.3d 1126, 1144.) In the present matter, the evidence against defendant was overwhelming. In light of this evidence, and the other instructions given by the court, we conclude the jury would have reached the same conclusion had the flight instruction not been given.

II

Romero Motion

Prior to sentencing, defendant moved the court to exercise its discretion to strike the prior serious felony finding in order to avoid sentencing under the three strikes law. He argued the current offense is minor, he will receive a lengthy sentence in any event, the prior offense was more than 10 years ago, and he has since lived a crime-free life. The trial court denied the motion.

Penal Code section 1385 gives a sentencing court discretion to dismiss a prior strike allegation. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497.) However, dismissal of a strike under Romero is a departure from the sentencing norm. The 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. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.) [A] trial court will only abuse its discretion in failing to strike a prior felony conviction allegation in limited circumstances. For example, an abuse of discretion occurs where the trial court was not aware of its discretion to dismiss [citation], or where the court considered impermissible factors in declining to dismiss. (People v. Carmony (2004) 33 Cal.4th 367, 378.)

Defendant contends the trial court abused its discretion here because it misunderstood the scope of its discretion and failed to afford a balanced consideration of the mitigating factors, when weighed against [defendants] juvenile criminal behavior. We disagree.

In denying defendants motion, the trial court provided the following explanation:

The Court knows that the defendant has a significant history of crime. True, it is as a juvenile; nevertheless, its a significant history of crime.

The Court also knows the defendant just went off parole in 2005. And then in 2006 as set forth in Count One thats convicted by the jury [sic], he is found in possession of a weapon and bullets. So he commits a new offense when he knows hes not supposed to be in possession of any weapons.

So I would note that its almost the minute he goes off parole then he commits a new offense. It is true, and the probation report does note, that between 2002 and 2006 there is no reported parole violations. And the Court did take that into account. But the defendant does have a very violent criminal past. And at least to date he is [sic] also shown no remorse for his actions in the current case. And I realize that thats just one factor. Its not the but for factor. Certainly, Im more concerned about the defendants violent criminal past and also that the minute he goes off parole he commits a new felony offense.

The Court does appreciate that the defendant did have part-time employment with TJ Max [sic] and that his wife has been ill and hes been taking care of her. But this just doesnt mitigate in terms of his background, his character, and his prospects enough sufficiently for the court to strike his prior strike.

Hes found with a gun with bullets in June of 2006 after hes on parole. Hes got a lengthy and violent criminal history. True, it is as a juvenile, but nevertheless quite serious. And the Court finds that essentially he has failed to turn his life around.

And so considering the totality of it, the Court decides that the defendant is a person that [sic] is meant to be within the Three Strikes Law and that he does fall within the Three Strikes Law. And for all those reasons, the Court finds that he does come within the provisions of the Three Strikes Law. And the motion is denied due to the totality of all those reasons, including the mitigating factors that I did consider, and I did consider all that.

It is obvious from the foregoing the trial court understood the extent of its discretion to strike the strike. The court gave due consideration to the mitigating factors. Nevertheless, the court concluded defendants history demonstrated he fell within the provisions of the three strikes law. Defendant does not challenge the courts characterization of his juvenile crime history as lengthy and violent. Based on the totality of the circumstances, there was no abuse of discretion.

Disposition

The judgment is affirmed.

HULL, J.

We concur:

SCOTLAND, P.J.

BUTZ , J.

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