P.v.
Duncantell
Filed 6/26/12 P.v. Duncantell CA4/2
TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts
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THE COURT OF APPEAL OF THE STATE OF
APPELLATE DISTRICT
TWO
THE
PEOPLE,
Plaintiff and Respondent,
v.
KENNETH
LEE DUNCANTELL,
Defendant and Appellant.
E053955
(Super.Ct.No. RIF10002270)
OPINION
APPEAL
from the Superior Court of
County. Eric G.
Helgesen, Judge. (Retired judge of the
former Tulare Mun. Ct. assigned by the Chief Justice pursuant
to art. VI, § 6 of the Cal. Const.) Affirmed.
Richard
Schwartzberg, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Scott C. Taylor, and
Meredith S. White, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant
and appellant Kenneth Lee Duncantell appeals after he was convicted of
possessing marijuana inside a prison, and of
admitting evidence of a prior conviction of possession of marijuana for sale;
he argues that the evidence was more prejudicial than probative. Defendant further contends that imposition of
a third strike sentence in this case violates federal and state
cruel and unusual punishment. We affirm
the judgment.
FACTS
AND PROCEDURAL HISTORY
Defendant
was an inmate in the California Rehabilitation Center in Norco.
On December 1, 2009, a correctional officer supervising one
of the dormitories noticed that defendant was there, even though defendant was
assigned to a different dormitory. When
the officer approached defendant to ask why he was there, defendant said that
he had come to pick up his identification card.
The officer conducted a pat-down search and found five bindles of
marijuana hidden in defendant’s sock.
Defendant
was turned over to additional corrections officers for further
investigation. Defendant was eventually
charged with one count of possession of marijuana in a penal institution (Pen.
Code, § 4573.6), and one count of possession of marijuana for sale (Health
& Saf. Code, § 11359). The
information also alleged five prison term prior convictions (Pen. Code,
§ 667.5, subd. (b)), and two strike priors (Pen. Code, §§ 667, subds.
(c)-(e)(2)(A) & 1170.12, subd. (c)(2)(A)).
It
was stipulated at trial that the substance recovered from defendant in the five
bindles amounted to a total of 1.3 grams of marijuana.
A
correctional officer gave expert testimony
at trial on the issue of access to and sales of controlled substances inside a
correctional institution. The officer
explained that inmates are restricted to their assigned dormitory. Other dormitories are off limits. Marijuana is contraband inside a prison
facility. Selling marijuana inside a
correctional facility differs somewhat from street sales because the available
supply is more limited, but the demand is greater. The officer testified that inmates wrap
individual doses in cellophane or other wrapping, called a “bindle.” Bindles of marijuana inside a prison
generally are packaged in quantities of 0.05 grams, and that such an amount is
considered a useable quantity in the circumstances of a correctional
facility. A bindle of 0.05 grams of
marijuana sells for about $20 or $30, corresponding to a price of $200 per
gram. Prison buyers generally possess
smaller quantities for use than is typical for a user outside of prison; inmates
use and possess smaller quantities to avoid detection. An inmate who possesses a controlled
substance for personal use normally hides the bindles in his bunk. When the substances are meant for resale,
they are carried on the person. Because
defendant was carrying the marijuana on his person, because he was in an
unauthorized area, and because he was carrying five separate bindles, the
officer opined that defendant intended to sell the marijuana.
At
the close of the People’s case, the parties stipulated that the substance
defendant possessed was marijuana, and that he had previously been convicted in
2004 of possession of marijuana for sale.
Defendant
testified in his own behalf at trial.
Defendant was incarcerated as a result of an attempted robbery
conviction. He admitted the 2004 prior
conviction of possession of marijuana for sale, as well as a conviction for
auto theft in 1993, and a conviction for robbery in 1985.
Defendant
testified that he had mistakenly left his identification card at the medical
window. He went to the window to
retrieve it, but was told that another inmate had picked it up to give it back
to defendant. Therefore, defendant went
to the other inmate’s dormitory to find his card. Defendant had tried to “check in” with the
correctional officer on duty, but found that he was in the bathroom. When the officer returned, he discovered
defendant in the dormitory, where he did not reside. The officer searched defendant and found the
marijuana in his sock.
Defendant
claimed that he had just gotten the marijuana less than an hour earlier, which
is why he had it in his sock. Defendant
testified that he was HIV positive and that he used the marijuana to relieve
pain and because he suffered from lack of appetite from his illness. Defendant said that another person had given
him the marijuana, and he had received it packaged in the bindles as it was
found in his sock. He also claimed that
the amount of marijuana he had was worth only $30 to $50, not $200 as the
officer had testified. Defendant said
that he generally smoked two marijuana cigarettes per day, and kept cigarette
papers hidden in a locker in his cell.
After his arrest, defendant was tested for drugs, and gave a positive
result for THC, the active ingredient in marijuana. Defendant denied that he intended or planned
to sell the marijuana.
On
cross-examination, defendant admitted that he knew it was illegal to possess
controlled substances inside a correctional facility. Defendant was also familiar with sales,
packaging, and pricing for drugs, including marijuana, both inside and outside
of prison. He stated that marijuana was
“like cash” in prison.
In
rebuttal, the correctional officer testified that the most common contraband in
the prison is tobacco. In his
experience, marijuana is never simply given away for free inside prison.
The
jury convicted defendant of both charged offenses. The trial court declined to dismiss
defendant’s strike priors, and sentenced him on count 2 (possession of
marijuana for sale) to a term of 25 years to life under the three strikes
law. The court stayed the sentence on
count 1 (possession of a controlled substance in a prison), pursuant to Penal
Code section 654. The court stayed
sentence on each of the five prison term priors.
Defendant
now appeals, contending the trial court erred in admitting evidence of
defendant’s prior conviction for possession of marijuana for sale. He also contends that imposition of a term of
25 years to life under the three strikes law violates prohibitions against
cruel and unusual punishment.
ANALYSIS
I. The Trial Court Did Not Abuse Its Discretion
in Admitting Evidence of Defendant’s Prior Conviction for Possession of
Marijuana for Sale
Evidence
Code section 1101 provides in pertinent part:
“(a) Except as provided in this section and in Sections 1102, 1103,
1108, and 1109, evidence of a person’s character or a trait of his or her
character (whether in the form of an opinion, evidence of reputation, or
evidence of specific instances of his or her conduct) is inadmissible when
offered to prove his or her conduct on a specified occasion.
“(b)
Nothing in this section prohibits the admission of evidence that a person
committed a crime, civil wrong, or other act when relevant to prove some fact
(such as motive, opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake or accident, or whether a defendant in a prosecution for an
unlawful sexual act or attempted unlawful sexual act did not reasonably and in
good faith believe that the victim consented) other than his or her disposition
to commit such an act.”
The
People moved before trial to admit evidence that defendant had previously been
convicted in 2004 of possession of marijuana for sale. The People argued that the conviction was
admissible under Evidence Code section 1101, subdivision (b), on the issue of
defendant’s knowledge of the nature of the material he possessed (marijuana)
and his intent (i.e., to sell the marijuana).
The court indicated that the parties had discussed whether the probative
value of the evidence outweighed its prejudicial value, and the court
tentatively determined that the evidence would be admitted. The court stated that it would allow defense
counsel to do further research, and to revisit the issue. The issue was not raised again before the
parties stipulated to the conviction, at the close of the prosecution’s case,
and defendant admitted the conviction in his own testimony.
“‘To
be admissible to show intent, “the prior conduct and the charged offense need
only be sufficiently similar to support the inference that defendant probably
harbored the same intent in each instance.”’”
(People v. Davis (2009) 46
Cal.4th 539, 602.) In addition, “Because
evidence of other crimes may be highly inflammatory, the admission of such
evidence ‘“‘must not contravene other policies limiting admission, such as
those contained in Evidence Code section 352.’”’ [Citations.]
Under Evidence Code section 352, the probative value of a defendant’s
prior acts must not be substantially outweighed by the probability that its
admission would create substantial danger of undue prejudice, of confusing the
issues, or of misleading the jury.
[Citations.] ‘We review for abuse
of discretion a trial court’s rulings on relevance and admission or exclusion
of evidence under Evidence Code sections 1101 and 352.’ [Citation.]”
(Ibid.)
Defendant
argues that the trial court erred in admitting the evidence of his prior
conviction for possession of marijuana for sale, because it was effectively
treated as character evidence, and not as evidence of intent. That is, the parties stipulated that he had
been convicted in 2004 of the crime of possession of marijuana for sale, but no
additional facts or background of the conviction were presented. Without those additional facts or background,
the jury had no means of applying the conviction to the issue of intent, but
must have considered it as character evidence:
Defendant was a drug dealer before, so he must have been dealing drugs
in the instant case.
The
criteria for admissibility of other crimes evidence are: “‘(1) the materiality of the facts sought to
be proved, (2) the tendency of the uncharged crimes to prove those facts, and
(3) the existence of any rule or policy requiring exclusion of the
evidence.’” (People v. Lindberg (2008) 45 Cal.4th 1, 22.) The evidence of defendant’s prior conviction
was properly admitted here.
First,
the issue of intent was a material issue in this case. Defendant specifically denied that he
intended to sell the marijuana; he testified that he possessed the five bindles
of marijuana for personal use only.
Second,
the prior offense did tend to prove defendant’s intent. He stipulated to the fact of conviction, and
admitted that he committed the crime of possession of marijuana for sale. Necessarily, that conviction encompassed a
finding that defendant harbored the intent to sell marijuana on the earlier
occasion. Having a particular state of
mind or intent is not a character trait or “propensity.” Rather, the fact of conviction for a similar
offense gives rise, because of the similarity of the circumstances, to an
inference of intent. (
402 [The least degree of similarity (between the uncharged act and the charged
offense) is required in order to prove intent.
In order to be admissible to prove intent, the uncharged conduct must be
sufficiently similar to support the inference that the defendant “‘“probably
harbor[ed] the same intent in each instance.”’”].) The jury here was given limiting
instructions, that it could consider the prior offense only on the issues of
credibility (impeachment by an offense of moral turpitude) and intent.
Third,
the policy of Evidence Code section 352, weighing the prejudicial versus the
probative value of the evidence, was not contravened by admission of the
evidence. The prior conviction was very
similar to the charge for which defendant was on trial. It involved possession of the same controlled
substance, marijuana. It involved the
same or similar intent issue, whether defendant intended to sell the
marijuana. It specifically tended to
negate defendant’s claims about his less culpable state of mind, i.e., mere
possession for personal use.
In
any event, the admission of the evidence was not prejudicial. In the first place, whatever the court’s
tentative ruling on the issue, defendant ultimately stipulated to the admission
of the fact of his conviction, and the offense of which he was convicted. He cannot now be heard to complain that he
should have stipulated to the underlying facts of the conviction. In addition, it is not reasonably probable
that the outcome would have been any different had the evidence of defendant’s
prior conviction not been admitted. (See
People v. Walker (2006) 139
Cal.App.4th 782, 808 [“‘the erroneous admission of prior misconduct evidence
does not compel reversal unless a result more favorable to the defendant would
have been reasonably probable if such evidence were excluded’”].) Defendant was in an area which was
out-of-bounds for him, a dormitory where he was not assigned. He did not check in with the guard on duty,
or wait for the guard to return. This
cast considerable doubt on defendant’s claim that he was only there to retrieve
his identification card from another inmate.
Defendant was carrying five bindles of marijuana. The correctional officer who testified as an
expert explained that, when an inmate has marijuana for personal use, he will
normally stash it in his bunk. When an
inmate intends to sell the marijuana, he carries it on his person. Defendant had five useable bindles of
marijuana hidden in his sock.
Defendant’s story that someone had just given him the marijuana was
contrary to the expert’s experience; no one in prison gives away drugs for
free.
The
trial court did not abuse its discretion in admitting evidence of defendant’s
prior possession-for-sale conviction, and defendant was not prejudiced in any
event.
II. Defendant’s Sentence Does Not Constitute
Cruel or Unusual Punishment
Defendant
next contends that his sentence of 25 years to life (third strike) is grossly
disproportionate to his offense, and thus violates the proportionality
requirement of the Eighth Amendment of the United States Constitution, and is
unconstitutional under article 1, section 17 of the California
Constitution.
In
May 2010, the People filed a complaint charging defendant with the felony
offenses of possessing marijuana in a California correctional institution, and
possessing marijuana for sale. In April
2011, the People amended the information to allege that defendant had suffered
two prior strike convictions under the three strikes law. A jury convicted defendant of both felony
counts, and the trial court found true both of the strike priors. The trial court declined, on defendant’s
request, to exercise its discretion to dismiss the strike priors under Penal
Code section 1385. In making this
determination, the court observed that defendant “is somebody who is continually
in trouble with the law. He has the two
strikes, and I believe that I cannot say as a matter of law that this falls
outside the realm of the purpose of the Three Strikes Law. . . . Not only did he choose to break the law[,] he
was in custody when he was breaking the law at this point in a penal
institution.”
The
court proceeded to impose a three-strikes sentence on count 2 (possession of
marijuana for sale) of 25 years to life.
Defendant
maintains that he was, in effect, sentenced to prison for the rest of his life,
“and at least into his seventies,” based solely upon possession of a small
amount of marijuana for sale. He was age
47 at the time of sentencing, and will not be eligible for parole for almost
another 30 years. He urges that this
court “should find imposition of a life sentence under these facts constitutes
cruel or unusual punishment as proscribed by both the State and Federal
Constitutions.”
“The
Eighth Amendment to the
States Constitution ‘contains a “narrow proportionality principle” that
“applies to noncapital sentences.”
[Citations.]’ (
20 [155 L.Ed.2d 108, 123 S.Ct. 1179].)”
(People v. Meneses (2011) 193
Cal.App.4th 1087, 1092.) “The
appropriate standard for determining whether a particular sentence for a term
of years violates the Eighth Amendment is gross disproportionality. That is, ‘[t]he Eighth Amendment does not
require strict proportionality between crime and sentence. Rather, it forbids only extreme sentences
that are “grossly disproportionate” to the crime. [Citations.]’
(Harmelin v. Michigan (1991)
501 U.S. 957, 1001 [115 L.Ed.2d 836, 111 S.Ct. 2680] (conc. opn. of Kennedy,
J.), citing Solem v. Helm (1983) 463
U.S. 277, 288 [77 L.Ed.2d 637, 103 S.Ct. 3001].) Successful grossly disproportionate
challenges are ‘“exceedingly rare”’ and appear only in an ‘“extreme”’
case. (Lockyer v. Andrade (2003) 538 U.S. 63, 73 [155 L.Ed.2d 144, 123 S.Ct.
1166].)” (People v. Em (2009) 171 Cal.App.4th 964, 977.)
In
Ewing v. California,
sentenced to a term of 25 years to life for stealing three golf clubs, priced
at $399 each. The United States Supreme
Court held that the term of 25 years to life was not grossly disproportionate
for the petty-theft-with-a-prior offense, where the defendant had been
convicted of at least two prior serious or violent felonies.
Similarly,
in Lockyer v. Andrade,
received two consecutive terms of 25 years to life, for two counts of petty
theft with a prior. Again, the defendant
was a recidivist offender who had been previously convicted of at least two serious
or violent felonies.
In
weighing the gravity of a defendant’s offenses, a court must consider both the
defendant’s criminal history and his or her current felony. (Ewing
v. California, supra, 538 U.S.
11, 29.) Here, as the trial court had
already noted with respect to its refusal to dismiss defendant’s strike priors,
defendant’s criminal history was dismal, and his current offense displayed his
utter indifference to the requirements of the law—he deliberately chose to
break the law, even inside a penal institution.
Defendant has failed to show that his case qualified as the “exceedingly
rare” exception or “extreme” case of gross disproportionality. He concedes that the People’s analysis of the
Eighth Amendment claim correctly represents the relevant decisions.
Defendant’s
state constitutional claim fares no better, however. Article 1, section 17 of the California
Constitution prohibits cruel or unusual punishments. “Under this provision, a sentence will not be
allowed to stand when it is so disproportionate to the crime committed that it
shocks the conscience and offends fundamental notions of human dignity,
considering defendant’s history and the nature of the offense. (In re
Lynch (1972) 8 Cal.3d 410, 424; People
v. Haller (2009) 174 Cal.App.4th 1080, 1092.) Much like Eighth Amendment analysis, we
consider the nature of the offense and the offender, with particular regard to
the danger each presents to society, as well as the penalties prescribed in
this state for more serious offenses and those prescribed in other states for the
same offense. [Citation.]” (People
v. Blackwell (2011) 202 Cal.App.4th 144, 158.)
Defendant
focuses his argument primarily on the first prong, the nature of the offense
and the offender, and the danger he presents to society. He concedes that he has suffered numerous
prior convictions, but, “[a]s to this particular offense, . . . this
is a possession of a small amount of marijuana for sale in prison, an offense
which is neither violent nor serious when compared with other offenses carrying
indeterminate terms.”
name="_ftnref1" title="">[1]
We disagree. As defendant
concedes, his substantial and serious prior record militates against a finding
that his sentence is disproportionate to “the nature of the offender.” Further, defendant’s attempt to minimize the
nature of his current offense is unavailing.
While not a violent offense, the possession
of illicit drugs inside a correctional facility is very serious. While defendant’s offense may not be, in
itself, a violent one, he was a willing participant in an underground economy
which seriously undermines the security, discipline, and other penological
goals of the institution, and which is a driving force behind other acts which
are violent. This offense shows that
defendant plainly has no regard whatsoever for the requirements of the law, and
repeated correction in the past has not deterred his continued lawless
behavior.
Defendant
has failed to show that his sentence was so disproportionate as to constitute
cruel or unusual punishment.
DISPOSITION
The
judgment is affirmed.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
MCKINSTER
J.
We concur:
RAMIREZ
P.J.
KING
J.
name="_ftn1" title=""> [1] With this comment, defendant’s argument also
implicates to some extent the second prong, i.e., punishments imposed for other
offenses in the same jurisdiction.
