P. v. Williams
Filed 12/24/09 P. v. Williams CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, Plaintiff and Respondent, v. PATRICK JAMES WILLIAMS et al., Defendants and Appellants. | E047702 (Super.Ct.No. INF059586) OPINION |
APPEAL from the Superior Court of Riverside County. John J. Ryan, Judge. (Retired Judge of the Orange Sup. Ct. assigned by the Chief Justice pursuant to art. VI, 6 of the Cal. Const.) Affirmed.
James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant Ricky Lamar Stubbs.
Kenneth Nordin, under appointment by the Court of Appeal, for Defendant and Appellant Patrick James Williams.
Edmund G. Brown, Jr., Attorney General, and Gary W. Schons, Senior Assistant Attorney General, for Plaintiff and Respondent.
Sheriffs deputies executed a search warrant at a residence and found Patrick James Williams and Ricky Lamar Stubbs, collectively referred to as defendants, along with 74.4 grams of cocaine base, digital scales, and packaging materials. The sum of $2,093 in cash was found in Williamss car. After a jury trial, the defendants were convicted of drug offenses, and Williams was sentenced to an aggregate term of seven years in prison, while defendant Stubbs was granted probation. Both defendants appealed.
On appeal, defendant Stubbs seeks review of the sealed transcript of an in camera hearing conducted pursuant to his trial motion for disclosure of the identity of the confidential informant, whose information provided the basis for the search warrant. The People agree we should review the sealed transcript, and we have done so, finding no error. Defendant Williams has filed a brief in accordance with the procedures outlined in People v. Wende (1979) 25 Cal.3d 436.
We affirm.
BACKGROUND
On August 14, 2007, members of the Coachella Valley Narcotics Task Force executed a search warrant at a Desert Hot Springs residence where a confidential informant had participated in controlled buys. Between 10 and 15 officers participated in the operation: two officers were sent to the rear of the residence to deploy a flash-bang diversionary device, and the remaining officers lined up, in a single-file stack, to enter through the front of the residence. Outside the residence, there were security cameras covering two sides of the residence.
After deploying the flash bang device, Detective Dickson saw someone attempt to exit the rear of the residence. That person was defendant Stubbs, who reentered the house. At the front of the house, after hearing the flash bang, Detective Button, at the front of the residence, banged on the door, announced they were officers with a search warrant, and demanded entry. When there was no response, the officers used a battering ram to gain entry. In the front living room, in plain view, was 74.4 grams of cocaine base on the floor and a black bag containing one-inch by one-inch and half-inch by half-inch baggies. Officers also found marijuana in the residence.
After entering, the team of officers proceeded to secure the residence. In the process of securing the residence, Sheriffs Deputy Lewis entered the left bedroom, located on the west side of the residence, where they found defendant Williams lying prone on the floor. Probation Officer Montplaisir located defendant Stubbs in the living room and searched him, finding two small baggies of marijuana.
Some keys were found in Williamss pocket and he indicated he had a car parked down the street. Williams also had a key to the door of the residence. An officer took the keys to search Williamss vehicle and found $2,093[1]in cash in the center console of the car. The amount of cash was presumed to be the profit from drug sales based on the presence of scales and packaging materials. In the residence, utility bills in the name of Clarence Williams were found during the execution of the search warrant. The members of the task force believed the residence was utilized in order to sell cocaine base, or possess it for sale, based on the lack of furnishings or clothing or personal items in the home and the presence of surveillance cameras.
The defendants were charged with possession of cocaine base for the purpose of sales (Health & Saf. Code, 11351.5, count 1), and utilizing a building designed to suppress law enforcement entry in order to sell controlled substances. (Health & Saf. Code, 11366.6, count 2.) It was further alleged that defendant Williams had previously been convicted of violation of Health and Safety Code section 11351, within the meaning of Health and Safety Code section 11370.2, subdivision (a). As to both defendants, it was alleged that probation should not be granted except in an unusual case because they possessed for sale a substance containing more than 14.25 grams or more of cocaine base or 57 grams or more of a substance containing at least five grams of cocaine base. (Pen. Code, 1203.073, subd. (b)(5).)
The defendants were tried jointly. Defendant Williams was convicted as charged of count 1; however, defendant Stubbs was convicted of the lesser included offense of straight possession of cocaine base and acquitted on the greater offense. Both defendants were acquitted of count 2. As to defendant Williams, the jury returned a true finding on the probation disqualifying allegation. In a subsequent court trial, the court made a true finding on the enhancement allegation that Williams had been previously convicted of possessing cocaine base for sale. (Health & Saf. Code, 11370.2, subd. (a).)
At sentencing, defendant Stubbs was granted Proposition 36 drug probation. (Pen. Code, 1210.1.) Defendant Williams was sentenced to an aggregate term of seven years in prison. (Four years, midterm, for count 1, plus three years for the enhancement pursuant to Health & Saf. Code, 11370.2, subd. (a).) Both defendants appealed.
DISCUSSION
1. Stubbss Appeal
No Discoverable Information About the Confidential Informant Was Adduced During the In Camerahearing.
In the trial court, defendant Stubbs filed a motion for discovery of the identity of the confidential informant, whose information formed the basis for the search warrant, and sought an in camerahearing. The People opposed the motion for discovery of the informants identity, invoking the governmental privilege for the identity of a confidential informant. (Evid. Code, 1041.) However, it did not oppose the in camerahearing procedure.
The court granted the motion for an in camera hearing to determine if the identity of the informant was discoverable. The in camerahearing was conducted on December 10, 2008. After examining the confidential informant, the court denied the defendants motion for discovery of the informants identity. Defendant Stubbs seeks appellate review of the order denying the motion to disclose the identity of the confidential informant and asks us to review the sealed transcript on appeal.
The prosecution must disclose the name of an informant who is a material witness in a criminal case or suffer dismissal of the charges against the defendant. (People v. Lawley (2002) 27 Cal.4th 102, 160.) An informant is a material witness if there appears, from the evidence presented, a reasonable possibility that he or she could give evidence on the issue of guilt that might exonerate the defendant. (People v. Borunda (1974) 11 Cal.3d 523, 527.) The parties join in requesting this court to review the sealed transcript of the in camera hearing to determine whether the trial court correctly applied the foregoing standard, and we have done so.
A sealed transcript of the in camera hearing has been forwarded to this court. The trial court followed the appropriate procedures in conducting the in camera hearing, which included testimony from the confidential informant. (See People v. Hobbs (1994) 7 Cal.4th 948, 971-975; People v. Martinez (2005) 132 Cal.App.4th 233, 242.) We have reviewed the sealed transcript of the in camera proceedings, as requested. Our independent review of the record and sealed materials shows there is no reasonable possibility defendant could prevail on his motion to discover the identity of the confidential informant. There was no error.
2. Williamss Appeal
At his request, this court appointed counsel to represent defendant on appeal. Counsel has filed a brief under the authority of People v. Wende, supra, 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493], setting forth a statement of the case, a summary of the facts, and potential arguable issues, and requesting that we undertake an independent review of the entire record. We offered defendant an opportunity to file a personal supplemental brief, but he has not done so.
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record for potential error. Respecting the trial courts ruling that self-serving statements made by defendant explaining the source of the money found in his car, the trial court correctly excluded the evidence. (People v. Williams (2006) 40 Cal.4th 287, 318.) A defendant in a criminal case may not introduce hearsay evidence for the purpose of testifying while avoiding cross-examination. (People v. Gurule (2002) 28 Cal.4th 557, 605, and cases cited.)
At sentencing, Williamss counsel argued the court should stay the enhancement for the prior drug conviction because the prisons are overcrowded and provide inadequate medical facilities. We have reviewed the sentence to determine whether it constitutes cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution on the grounds that California prisons suffer from overcrowding and provide inadequate medical facilities.
No evidence was presented at the hearing to support this premise and defendant did not suggest any mitigating factors. While the probation report notes that defense counsel described defendant as a likable fellow who was in the wrong place at the wrong time, and that defendants mother described his conduct as upstanding, these are not factors in mitigation which would justify striking an enhancement or imposing the lower term. (Cal. Rules of Court, rules 4.423, 4.425(b).)
We have completed our independent review of the record and find no arguable issues.
DISPOSITION
The judgments are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
s/Gaut
J.
We concur:
s/Richli
Acting P. J.
s/Miller
J.
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[1] The task force member who counted out the case testified that there was $2,093, but in describing the denominations of money seized, he testified there were two $100 bills, one $50 bill, sixty-six $20 bills, twenty-two $10 bills, thirty-four $5 bills, and thirty-three $1 bills. The sum of these bills does not agree with the testimony as to the value of the case. However, the return on the search warrant lists three $100 bills, not two.
