P.
v. Lusk





Filed
3/14/13 P. v.
Lusk CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS






IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA



SECOND APPELLATE
DISTRICT



DIVISION THREE




>

THE PEOPLE, Plaintiff and Respondent, v. TIMOTHY NELSON LUSK, Defendant and Appellant.

B237125 (Los Angeles County Super. Ct. No. KA094293)

APPEAL from a judgment of the Superior
Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County, Christian R.
Gullon, Judge. Affirmed.

Randall Conner, under appointment by
the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General,
Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Victoria B. Wilson and Noah P. Hill, Deputy Attorneys
General, for Plaintiff and Respondent.



_________________________











Defendant
and appellant, Timothy Nelson Lusk, appeals his conviction for possession of
marijuana, being under the influence of a controlled substance, and
transportation of marijuana, with prior serious felony conviction and prior
prison term enhancements (Health & Saf. Code, §§ 11357, 11550, 11360;
Penal Code, §§ 667, subds. (b)-(i), 667.5). Lusk was sentenced to href="http://www.mcmillanlaw.com/">state prison for nine years.

The
judgment is affirmed.

>BACKGROUND

Viewed
in accordance with the usual rule of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence
established the following.

1. Prosecution
evidence.

On the evening of May 19, 2011, Los Angeles County
Deputy Sheriff Marcos Rosales saw defendant Lusk standing in front of a house
on West Cienega Avenue in San Dimas. After making eye contact, Lusk tried to hide
behind a low wall. Rosales noticed one
of the windows in the house was broken and he thought Lusk might be involved in
a burglary, so he exited his patrol car to investigate.

Lusk
told Rosales he was on parole and had come to visit a friend, although he could
not give Rosales the friend’s name. A
young woman, Jessica, was slouching down in the driver’s seat of an SUV parked
nearby. Rosales ordered Jessica out of
the vehicle.

Because
Lusk was sweating, agitated and his pupils were dilated, Rosales believed he
might be under the influence of a controlled substance. After administering some tests, Rosales
concluded Lusk was under the influence of methamphetamine. Lusk said he had used methamphetamine a day
earlier.

Lusk
said Jessica had given him a ride to the house.
Asked if anything in the SUV belonged to him, Lusk mentioned a
laptop-computer carrying case and a duffle bag.
Inside the computer case, Rosales found tattoo-related magazines and
sketches. Inside the duffle bag, he found
men’s clothing in Lusk’s size and a plastic bag containing 438 grams of
marijuana. Lusk initially denied the
marijuana belonged to him. But when
Rosales said Jessica would be going to jail because the marijuana was in her
vehicle, Lusk said the marijuana was his and that Jessica had not known about
it. Rosales told Lusk, “You know, don’t
be stupid. If it’s not yours, don’t tell
me it’s yours. Don’t take the fall for
somebody else,” but Lusk replied: “I
can’t do that to her. You know, she
doesn’t know – she has kids. She just
gave me a ride. . . . [I]t’s
my marijuana.” Lusk was arrested.

The
next morning, a search of the West Cienega Avenue
house uncovered 12 or 13 grams of marijuana and more than 50
one-inch-square plastic baggies.
Officers arrested a person at the house on a charge of selling
marijuana.

Los
Angeles County Detective Rob DeYoung testified the marijuana found in Lusk’s
possession had a street value of $2,000 to $4,000, and was enough to have
lasted a heavy marijuana user for more than a year. However, DeYoung explained, marijuana
deteriorates within a few months and its quality continues to erode as time
passes. He opined the marijuana in
Lusk’s duffle bag was intended for sale.
This opinion was based on the quantity of marijuana recovered, the
absence of any smoking paraphernalia in Lusk’s possession, and the many baggies
found in the West Cienega Avenue house which evidenced retail-level marijuana
trafficking. DeYoung believed Lusk went
to the house to sell marijuana to one of the residents, who then intended to
resell it.

2. Defense
evidence.

Lusk testified he was addicted
to methamphetamine, having used it for more than 10 years. He was under the influence of the drug on the
day he was arrested, but its effects were starting to wear off and he wanted to
obtain more. So he asked Jessica for a
ride to Robert’s house on West Cienega Avenue
in San Dimas. Lusk had only known Robert for a few
weeks. Lusk was a tattoo artist and he
wanted to see if Robert might be interested in a tattoo so Lusk could earn
money to buy more methamphetamine.

There
were two men in Jessica’s car when she picked up Lusk; he didn’t know
them. Lusk had his computer carrying
case with him. When Jessica arrived at
Robert’s house, all four of them went inside.
Lusk showed Robert his tattoo sketches, but Robert wasn’t
interested. Lusk went outside to use his
cell phone. He was standing in front of
the house when Deputy Rosales drove past.
Lusk tried to hide because he knew he was in violation of parole for
using methamphetamine. That was when
Rosales stopped and approached him.

When
Rosales asked him about the duffle bag in Jessica’s SUV, Lusk denied it
belonged to him. But when Rosales said
Jessica would go to jail for the marijuana, Lusk falsely admitted it was
his. He did this because he would be
going to jail for violating parole anyway, and he did not want Jessica to be
separated from her two young children.

>CONTENTION

The
trial court improperly used Lusk’s sentence to punish him for exercising his
right to a jury trial.

>DISCUSSION

Lusk contends he
is entitled to resentencing because the trial court violated his constitutional
rights by imposing a more severe sentence in order to punish him for refusing a
plea bargain offer and going to trial.
This claim is meritless.

1. Background.

Prior
to trial, the prosecution offered Lusk the following plea bargain: a 44-month sentence for pleading guilty to
count 1 (possessing marijuana for sale), which consisted of a low term for
the conviction, doubled under the Three Strikes law, plus a prior prison term
enhancement. Lusk declined the
offer.

On
September 13, 2011, the
jury convicted Lusk on count 1 for the lesser included offense of simple
marijuana possession, in addition to counts for transporting marijuana and
being under the influence of a controlled substance. After the jury was dismissed, the trial court
asked counsel what date they wanted for sentencing and post-trial motions. Defense counsel said, “I’m wondering if the
court would be willing – I guess I’m asking for an indication. EDP [the Early Disposition Program report]
was 32 months. Beyond the EDP, I believe
the offer was four years . . . as a second striker. I don’t believe Mr. Lusk should be
penalized in any way for exercising his right to have a jury trial.” The trial court responded, “I certainly
understand what you’re saying, and I wholeheartedly agree with you, but I guess
I’m not prepared to give an indicated today.”
The matter was continued for a week.

At
the sentencing hearing, on September
20, 2011, the prosecutor asked for an aggravated term on
count 3 (transportation of marijuana), arguing there were no mitigating
circumstances and several aggravating factors:
Lusk was on parole when the crime was committed, and his prior
convictions or juvenile adjudications were numerous or of increasing
seriousness. This three-year base term
would be doubled under the Three Strikes law and two 1-year prior prison term
enhancements would be added, for a total sentence of eight years.

Defense
counsel then argued: “I don’t believe,
and I think the court agrees, that Mr. Lusk should in no [>sic] way be punished for exercising his
right to have a trial on this case. The
jury made factual findings. The jury
found that this was not possessed for sale.”
“[T]his is in fact transportation for personal use of 15 ounces of
marijuana. That is the bottom line
. . . .” Defense counsel
asserted that had Lusk possessed a medical marijuana card he would not even
have faced this charge. “[G]iven the
fact that the People’s assessment of the case, early dispo offer was
32 months and after that they upped it to . . . 44 months,
I think it’s disingenuous to say now, well, he had a trial. He lost.
We’re going to give him, just because we can, more time.” “The jurors found that in fact this was
transportation for personal use. It’s a
small amount of marijuana. It’s not a
huge amount of marijuana, and I believe that the man should not be punished for
exercising his right to have a jury trial.”
Defense counsel asked for a sentence of 32 months.

The
trial court said it had tentatively decided to impose a nine-year term,
consisting of a three-year midterm on count 3, doubled under the Three
Strikes law, plus three consecutive one-year prior prison term
enhancements. The court explained it had
selected the midterm despite there being no mitigating factors and multiple
aggravating factors. The court said it
found “absolutely no evidence whatsoever . . . that Mr. Lusk
uses marijuana,” and noted the jury “certainly made no finding of fact that it
was for personal use . . . .”

Then,
just before inviting the parties to address the indicated sentence, the trial
court said: “I do want to address some
of the items . . . that [defense counsel] brought up, specifically
with respect to punishment for going to trial.
Mr. Lusk, understand this.
The punishment is punishment for the crime, not for choosing to
exercise your constitutional right. With
all due respect to [defense counsel], the fact that you and your attorney and
the district attorney’s office were trying to resolve the issue for something
less than what the court has decided to impose . . . didn’t involve
me. I wasn’t involved in those negotiations
between the two parties, so I don’t know the reasons that both sides might have
been talking about some time less than what the court is intending to impose,
and those reasons . . . are not something that the court
considers. What the two sides might have
at some point thought about, offered, or expressed at the time is not really up
to me to determine. Rather, the court
has basic sentencing parameters, what I must follow, and I think I’m doing that
to the best of my ability.”

During
his response to the indicated sentence, defense counsel urged the trial court
to consider as a mitigating factor Lusk’s methamphetamine addiction because,
based on “general knowledge,” the court could “take judicial notice of the fact
that long-term drug addicts often act irresponsibly, on impulse, and that they often
don’t use the best judgment.” To this,
the court replied: “I certainly
understand . . . what you’re saying with respect to the fact that
Mr. Lusk appears to be addicted to methamphetamine. I believe Mr. Lusk when he says
that. To be honest, I didn’t believe a
lot of what he was saying on the witness stand, and apparently neither did the
jury.”

The
trial court then imposed its indicated prison term of nine years.

2. Legal
principles.

“The
Sixth Amendment, made applicable to the states in this context by the
Fourteenth Amendment of the federal Constitution, confers upon a defendant in a
criminal prosecution the right to a trial by jury. [Citations.]
The right to a trial by jury is recognized to be a ‘fundamental
constitutional right.’ [Citations.] Similarly, article I, section 16 of
the California Constitution confers upon a defendant in a criminal prosecution
the right to a trial by jury.
[Citations.] We have recognized
that this state constitutional right is fundamental. [Citation.]”
(People v. Collins (2001) 26
Cal.4th 297, 304.) “[T]he high court
long has recognized that the state may not punish a defendant for the exercise
of a constitutional right, or promise
leniency to a defendant for refraining from the exercise of that right. [Citations.]
Coercion in either form has been rejected, whether its source is
executive, legislative, or judicial in nature.
[Citations.]” (>Id. at pp. 305-306.) “ ‘To punish a person because he has
done what the law plainly allows him to do is a due process violation of the
most basic sort [citation], and for an agent of the State to pursue a course of
action whose objective is to penalize a person’s reliance on his legal rights
is “patently unconstitutional.” [Citations.]’ [Citations.]”
(Id. at p. 306.)

Based
on these principles, trial court sentences have been reversed where it can be
determined the defendant has been punished for exercising a right to
trial. (See, e.g., In re Lewallen (1979) 23 Cal.3d 274, 279 [trial court
responded to defense counsel’s argument that informal probation would be
appropriate sentence by saying, “ ‘You mean whether or not there’s a
disposition or not after a jury trial?’ ”]; In re Edy D. (2004) 120 Cal.App.4th 1199, 1202 [“court’s
statement that if the minor inconvenienced witnesses by having them come to
court for an adjudication hearing, the option of [an alternative probation]
disposition . . . would no longer be available to him”]; >People v. Morales (1967) 252 Cal.App.2d
537, 542, fn. 4, italics added [trial court said prison inmate defendants
“have the same rights as anyone else . . . , >but I don’t think it’s fair for an
inmate, or anyone else, to come to Court and demand a jury trial, demand the
services of the public defender . . . when there really isn’t
any defense to this case”].)

3. Discussion.

Lusk
contends his sentence must be reversed because the trial court punished him for
refusing the offered plea bargain and exercising his right to a jury
trial. This claim is meritless.

Paraphrasing
People v. Szeto (1981) 29 Cal.3d 20,
35, Lusk acknowledges the mere “fact that a defendant receives a more severe
sentence after being found guilty by a jury than he would have if he accepted a
plea offer does not warrant an inference that the defendant was penalized for
exercising his constitutional right to a jury trial. Appellant must show that the trial court made
some comment or statement that could ‘reasonably giv[e] rise to the inference
that [the court] was penalizing [appellant] for exercising his right to jury
trial.’ ”

Lusk
argues, however, that the trial court’s statements showed it was punishing him
for going to trial: “[I]n support of its
sentence, the court remarked that it had not believed appellant’s testimony,
that it believed appellant had intended to sell marijuana, as charged in
count 1, despite the jury’s acquittal of appellant on that count, and that
it harbored doubts regarding appellant’s claim of methamphetamine addiction. In sum, the court’s remarks indicate that it
based its sentencing choices, at least in part, on its perception that
appellant had presented a non-meritorious defense despite appellant’s acquittal
on count 1. [¶] The court’s statements in support of its
sentencing choices resemble the statements found to indicate improper
sentencing in Morales and >Lewallen.”

We
cannot agree. The trial court’s comments
here were completely innocuous when compared to the statements made in >Morales and Lewallen. Moreover, the
court was entirely justified in concluding, for the purposes of sentencing,
that Lusk had been trafficking in marijuana.
There is nothing in this case to indicate the trial court was punishing
Lusk for presenting a non-meritorious defense at his jury trial.

In
Morales, the trial court explained it
was imposing a consecutive sentence “not necessarily because of the
aggravated nature of the offense because it wasn’t particularly aggravated in
terms of what can happen at the prison.
But what I am very much disturbed
about is what Mr. Morales put everyone through[.] . . . I have no objection, in fact I feel all the
inmates should be free to come in and present any defense that they may have to
any charge that is brought against them in the Criminal Court. They have the same rights as anyone else in
that regard, but I don’t think it’s fair
for an inmate, or anyone else, to come to Court and demand a jury trial, demand
the services of the public defender, obtain what I thought was a first class
and able defense, when there really isn’t any defense to this case, and there
was no effort to put on a defense because there couldn’t be, and I don’t
think this is right. I don’t think Mr.
Morales in and of himself is the kind of man that has to have a consecutive
sentence, but I think somewhere along the line the Court has to face up to the
situation. I’d like the word to go back to San Quentin that if this kind of
defense is brought in here again they will get a consecutive sentence. I think they should because I think there is
a point at which the Court should not permit an inmate at San Quentin or anyone
else to just plain play games. Another
aspect of the matter, I learned for the first time that Mr. Morales is a good
English student. We hired an interpreter
for Mr. Morales on the basis that he didn’t understand English. I think that it is important to make the
point . . . . [¶] If
there is honest doubt, or even the possibility of honest doubt that a defendant
can be convicted, certainly, a defendant should have the right to raise the
point, but when he doesn’t have any basis of offering a defense, then I think
he should suffer some additional sanction . . . . Tell the people back at San Quentin why he
got it, too.” (People v. Morales, supra, 252 Cal.App.2d at pp. 542-543,
fn. 4, italics added.)

In
Lewallen our Supreme Court
explained: “First, in response to
defense counsel’s suggestion that placing defendant on informal probation would
suffice, the trial judge responded, ‘You mean whether or not there’s a
disposition or not after a jury trial?’
Second, after sentencing the trial judge stated, ‘I think >I want to emphasize there’s no reason in
having the District Attorney attempt to negotiate matters if after the
defendant refuses a negotiation he gets the same sentence as if he had accepted
the negotiation. It is just a waste
of everybody’s time, and what’s he got to lose. And as far as I’m concerned, >if a defendant wants a jury trial and he’s
convicted, he’s not going to be penalized with that, but on the other hand he’s
not going to have the consideration he would have had if there was a plea.’ ” (In re
Lewallen, supra, 23 Cal.3d at p. 277, italics added.) Lewallen
concluded “that when the judge’s statements are viewed as a whole, there
can be no rational interpretation other than that he was basing petitioner’s
sentence at least in part on the fact that he declined the prosecution’s plea
bargain and demanded a trial by jury.” (>Id. at p. 280.)

In
the case at bar, the trial court said nothing even remotely similar to the improper
comments in Morales and >Lewallen. Lusk seizes on the trial court’s disclaimer
of any intention of punishing him for going to trial, and argues “such
disclaimers do not excuse infringement upon a defendant’s right to trial by
jury.” But it is obvious from everything
the trial court said that this disclaimer had merely been a >response to defense counsel’s initial
argument that the court should not punish Lusk for having gone to trial. Read in context, it is clear the trial
court’s comments were not meant to disguise an effort to penalize Lusk for
having exercised his trial rights.

Lusk
argues the record shows the trial court wanted to punish him for not presenting
a meritorious defense because the court indicated it disbelieved his testimony
about the marijuana and his claim of methamphetamine addiction. Again we disagree.

The
trial court said, on the record, that it believed
Lusk was addicted to methamphetamine.
Lusk’s citation of another, extremely ambiguous remark by the trial
court does not establish otherwise.href="#_ftn1"
name="_ftnref1" title="">[1] As for the trial court saying it did not
believe Lusk possessed the marijuana for personal use, the jury itself
obviously disbelieved Lusk’s testimony the marijuana did not belong to him and
he only told police it was his to help out Jessica. Moreover, the trial court quite properly
concluded that, for sentencing purposes, it appeared Lusk was trafficking in
marijuana. There are “numerous federal
and California decisions that
uniformly hold that a jury verdict acquitting a defendant of a charged offense
does not constitute a finding that
the defendant is factually innocent of the offense or establish that any or all
of the specific elements of the offense are not true. [Citation.]”
(In re Coley (2012) 55 Cal.4th
524,554.) “[A]n acquittal merely
establishes the existence of a reasonable doubt as to guilt. Unless specific findings are made, ‘the jury
cannot be said to have “necessarily rejected” any facts when it returns a
general verdict . . . .’
[Citation.]” (>People v. Towne (2008) 44 Cal.4th 63,
86.) Hence, a “trial court’s
consideration of conduct underlying counts of which the defendant has been
acquitted is not inconsistent with the jury’s verdict of acquittal, because a
lower standard of proof applies at sentencing.”
(Id. at p. 87.)

There
is no indication in this record that the trial court used sentencing to punish
Lusk for going to trial.

>DISPOSITION

The
judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS









KLEIN,
P. J.





We concur:







CROSKEY,
J.









ALDRICH,
J.