P. v. Fleming
Filed 5/28/13 P. v. Fleming CA2/5
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
RANDY FLEMING,
Defendant and Appellant.
B241293
(Los Angeles
County
Super. Ct.
No. BA363372)
APPEAL from
a judgment of the Superior Court
of
County.
Victor H. Greenberg, Judge. Affirmed.
Brandie
Devall for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Senior Assistant Attorney General, Scott A. Taryle and
Kimberley J. Baker-Guillemet, Deputy Attorneys General, for Plaintiff and
Respondent.
_______________
Appellant
Randy Fleming was convicted, following a jury trial, of one count of possession
for sale of marijuana in violation of Health and Safety Code section
11359. Appellant admitted that he had
suffered various prior convictions, including two or more prior serious or
violent felony convictions within the meaning of Penal Code sections 667,
subdivisions (b) through (i) and 1170.12 (the "Three Strikes"
law). The trial court sentenced
appellant to a term of 25 years to life in state
prison pursuant to the Three Strikes law.
Appellant
appeals from the judgment of conviction, contending that the trial court erred
in denying his motion to suppress and there is insufficient evidence to support
his conviction. Appellant also contends
that the trial court abused its discretion in denying appellant's motion to
strike his prior convictions and the resulting sentence constituted
Facts
About 8:20 p.m., on October
13, 2009, Officer Nonora and his partner, Officer Francisco
Arredondo, were on patrol in Los Angeles. Officer Nonora saw appellant exit a parked
car with another individual, later identified as Kido Smith. Appellant had a dark black-colored grocery
bag in one hand. Appellant looked
around, made eye contact with the officers and looked startled. Appellant then immediately turned and tossed
the bag onto the driver's seat of the car, closed the door and began to walk
away.
Officer Nonora believed that
appellant was making a suspicious movement.
The officers stopped their car in the street, exited and yelled,
"Police Department." Officer
Nonora told appellant that he wanted to talk to him and told him to move over
to the sidewalk on the opposite side of the street. Officer Nonora conducted a patdown search of
appellant to check for weapons.
After the patdown, Officer Nonora
walked over to appellant's car, shined his flashlight into the car, and saw the
grocery bag that he had seen appellant with earlier. The bag was partially open, and inside the grocery
bag there was another large clear plastic Ziploc bag containing what appeared
to be marijuana.
Officer Nonora walked back over to
appellant, handcuffed him and took his car keys, went to his car, opened and
searched it, and retrieved the bag containing the marijuana. He also found a cell phone and 144 empty
"dime baggies." The baggies
were inside of the grocery bag. The officers
also found $98 in cash on appellant.
Officer Nonora did not find a lighter, matches, rolling papers,
"blunts," or any items commonly used to ingest or smoke marijuana
during the search of appellant or his person.
Appellant told the officers that
the marijuana and cell phone belonged to him.
He said that Smith had nothing to do with the marijuana. Appellant confirmed to the officers that he
belonged to the 65 Menlo gang. He was
arrested.
At trial,
Officer Nonora opined that appellant possessed the marijuana for the purpose of
sale. His opinion was based on the large
amount of marijuana that appellant had, the large number of unused empty
"dime bags" in appellant's possession, the lack of any drug ingestion
paraphernalia consistent with personal use, and the money on appellant's
person. Officer Nonora explained that the
74 grams (about 2.5 ounces) of marijuana in appellant's bag would fill 35 to 40
of the "dime bags." The bags
would sell for about $350. In Officer
Nonora's experience, it was common for marijuana users to also sell marijuana,
to support their habit. Officer Nonora
acknowledged that he did not find any scales, records of marijuana sales, or
weapons during his search of appellant's person or car.
The parties stipulated that a
criminalist conducted an analysis of the material contained inside of the
Ziploc bag which was booked into evidence in connection with the instant case
and concluded that the material was marijuana with a net weight of 74.77 grams.
Kido Smith testified on appellant's
behalf at trial. On October 13, 2009,
appellant was dropping Smith off at home.
Appellant stayed in the car because it was raining. As Smith walked across the street he was
stopped by police, who had drawn their guns.
The officers told him that they were doing random checks because there
had been a shooting in the area. The
officers then ordered appellant to get out of the car. He complied.
The officers patted the two men down and asked for identification. Smith did not see appellant with a plastic
bag at any point that night.
Officer Nonora went to appellant's
car and shined a light inside. He asked
appellant if the car was his and if he could search it. Appellant replied, "What for?" Officer Nonora reached into appellant's
pocket, took his car keys and searched the car.
After about 10 to 20 minutes, the officer returned and said that he had
found marijuana in the car. Appellant
confirmed that the marijuana belonged to him.
He said that Smith had nothing to do with it. The officers arrested appellant.
Appellant testified on his own
behalf at trial. He gave substantially
the same account of the police encounter as Smith did. Appellant acknowledged that he had marijuana
in the car, but stated that the marijuana was inside a Ziploc bag inside of a
dark grocery bag, rolled up and tucked between the seat and the drive shaft
console of the car.
Appellant testified that the
marijuana was for personal use. He
stated that he was a heavy user of marijuana and smoked between four and five
marijuana "blunts" per day.
The amount of marijuana in his car would last him about three or four
days. Appellant's wife did not approve
of his marijuana habit. She had
instituted a portion control system which involved the use of the baggies. She allowed him a few baggies a day. However, appellant only followed this system
when his wife was around. He had the
large amount of marijuana and baggies when he was arrested because he had just
purchased both.
Appellant
acknowledged that he was a member of the Menlo Boys (the original name of the
65 Menlo Gangster Crips). He was no
longer a member of the 65 Menlo Gangster Crips.
He also acknowledged that he had been convicted of several crimes
involving issues of moral turpitude.
Discussion
1. Motion to suppress
Following a
hearing on appellant's motion to suppress, the trial court found that the
officers' detention of appellant was not lawful. The court found, however, that the marijuana
found in appellant's car was admissible under the inevitable discovery
doctrine. Appellant contends that the
trial court erred in finding that this doctrine was applicable and in admitting
the marijuana. We see no error.
The trial
court found that the officers did "not have specific and articulable facts
to detain." The court noted that
Officer Nonora had testified that he did a quick patdown and then walked
directly to the car and shined a flashlight into the car to check its
contents. The court specifically found
the officer to be credible. The court
ruled: "And so, really, one way to
look at it is the discovery would have been done inevitably, that it's – the
way the court or the way the court is going to articulate it is that the
seizure in this case is not a product of the illegal detention. It's not a result of the illegal
detention. The evidence was discovered
independent of the improper detention."
Evidence
obtained during a stop, search or seizure
which violates the Fourth Amendment must generally be excluded. (Mapp
v. Ohio (1961) 367 U.S. 643.)
Under the fruit of the poisonous tree doctrine, evidence that is
gathered as a direct or indirect result of the illegal search will also be
excluded. (Wong Sun v.
There are exceptions to the
exclusionary rule. Under the inevitable
discovery doctrine, illegally seized evidence is admissible if "it would
have been discovered by the police through lawful means." (People
v. Robles (2000) 23 Cal.4th 789, 800.)
The doctrine is "'an extrapolation from the independent source
doctrine: Since the tainted evidence would be admissible if in fact
discovered through an independent source, it should be admissible if it
inevitably would have been discovered.'
[Citation.] The purpose of the
inevitable discovery rule is to prevent the setting aside of convictions that
would have been obtained without police misconduct. [Citation.]
The burden of establishing that illegally seized evidence is admissible
under the rule rests upon the government."
(Id. at pp. 800-801.)
To
establish inevitable discovery, the prosecution "must demonstrate by
a preponderance of the evidence that,
due to a separate line of investigation, application of routine police
procedures, or some other circumstance, the [unlawfully obtained evidence]
would have been discovered by lawful means." (People
v. Hughston (2008) 168 Cal.App.4th 1062, 1072.)
In
reviewing a trial court's ruling on a motion
to suppress evidence obtained in an allegedly invalid search, an appellate
court defers to the trial court's factual findings, whether, express or implied,
where supported by substantial evidence.
In determining whether, under those facts, the search or seizure was
reasonable under the Fourth Amendment, an appellate court exercises its
independent judgment. (
Cal.4th 876, 924.)
Here,
Officer Nonora testified at the suppression hearing that he detained appellant
and conducted a patdown search to check for weapons. He explained that he decided to undertake
this search because appellant was wearing baggy clothing and he thought appellant
might be a gang member. After Officer
Nonora made sure that appellant did not have any weapons, "because of the
– his action earlier, I walk over to the car, and I shined my flashlight into
the interior of the car, and I saw the grocery bag." During the patdown, Officer Nonora did not
ask appellant about looking into the car and did not ask if he had anything in
the car. The trial court found this
testimony credible, and we defer to that finding.
Under these
facts, the marijuana was not discovered by unlawful means and was not the fruit
of a poisonous tree. This is not a case
where the unlawful stop or search itself produced incriminating evidence or
evidence pointing to the location of the later-discovered contraband. Nothing appellant said or did during his
brief detention and nothing found during the patdown search gave the officers
any indication that contraband was in the car.
This is also not a case where the illegal stop prevented the suspect
from leaving with the contraband and thereby evading detection of the
contraband. Appellant had left the
marijuana in the car and was walking away from the car when police stopped
him. Thus, it is difficult to see how the
officers' unlawful behavior in any way led to the discovery of the marijuana. The officers could simply have walked up to
the car and looked inside it at any point after appellant began to walk away
from it.
Further,
even assuming for the sake of argument that the discovery of the marijuana was
indirectly related to the stop, it would fall under the inevitable discovery
exception. The testimony shows that
Officer Nonora was pursuing a "separate line of investigation" when
he went over to the car. (See
Cal.App.4th at p. 1072.) The officer
searched appellant first because he was concerned that appellant was
armed. This concern arose from
appellant's appearance. The officer
searched the car because he had earlier seen appellant throw the bag into the
car after making eye contact.
The car was
parked on the street, and the officers were free to walk up to it. Looking inside the car through the windows
was not a search. (People v.
962-963; People v. Rogers (1978) 21
Cal.3d 542, 549; People
(1970) 7 Cal.App.3d 167, 172.) Officer
Nonora's use of a flashlight did not transform the viewing into an unlawful
search. (See People v.
Once
Officer Nonora saw the bag containing a substance that resembled marijuana on
the car's front seat, he could lawfully search the car. Under the automobile exception to the search
warrant requirement, a police officer may lawfully search a vehicle without a
warrant if the search is "'based on facts that would justify the issuance
of a warrant, even though a warrant has not actually been obtained.'" (People
v. Evans (2011) 200 Cal.App.4th 735, 753 [discussing the automobile
exception]; People
supra, 7 Cal.App.3d at p. 172
["Where officers lawfully approach a vehicle and observe in plain view
contraband or other evidence of crime they are warranted in searching the
vehicle and in making an arrest."].)
That was the case here.
2. Sufficiency of the evidence
Appellant
contends that there is insufficient
evidence to show that he possessed the marijuana with the intent to sell
it.
"'In reviewing a challenge to
the sufficiency of the evidence, we do not determine the facts ourselves. Rather, we "examine the whole record in
the light most favorable to the judgment to determine whether it discloses
substantial evidence—evidence that is reasonable, credible and of solid
value—such that a reasonable trier of fact could find the defendant guilty
beyond a reasonable doubt."
[Citations.] We presume in
support of the judgment the existence of every fact the trier could reasonably
deduce from the evidence. [Citation.]
[¶] The same standard of review applies to cases in which the prosecution
relies primarily on circumstantial evidence and to special circumstance
allegations. [Citation.] "[I]f the circumstances reasonably
justify the jury's findings, the judgment may not be reversed simply because
the circumstances might also reasonably be reconciled with a contrary
finding." [Citation.] We do not reweigh evidence or reevaluate a
witness's credibility.
[Citation.]'" (
Cal.4th 198, 210.)
It is well
settled that an intent to sell narcotics may be inferred from circumstantial
evidence. (People v.
Cal.App.2d 122, 126.) Among the
circumstances to be considered are "the quantity of narcotic, the
equipment found with it, the place it was found, the manner of packaging, and
the opinion of an expert that the narcotic was being held for sale." (People
v. De La Torre, supra, 268
Cal.App.2d at p. 126.)
Here, the marijuana weighed 74
grams. This would amount to 35 to 40
"dime bags." Appellant had
numerous small bags of the type used to sell marijuana, referred to as
"dime bags."
name="_ftnref3" title="">[3] He had no paraphernalia to smoke the
marijuana, such as rolling papers, blunts, a pipe, a lighter or matches. Based on these facts, Officers McClean and
Nonora opined that the marijuana was possessed for sale. Officer Nonora specifically noted that it was
common for marijuana users to sell marijuana to support their habit.
This is sufficient to support a
reasonable inference that appellant possessed the marijuana for sale. There were no items associated with personal
use in the car. There was an item, the
bag of baggies, that is associated with sales.
The amount of marijuana was not huge, but it was a large amount to have
solely for personal use.
Appellant
contends that the amount of marijuana and cash found was too small to support
an inference of intent to sell. He cites
a number of cases in which the amount of narcotics or cash found by police was
much larger than the amount found in this case.
(People v. De La Torre,
of marijuana]; People
(1968) 259 Cal.App.2d 593; People
(1968) 260 Cal.App.2d 478 [6 pounds of marijuana]; People v.
48, 53 [$4,000 worth of drugs].) Nothing
in those cases requires such a large amount of narcotics to infer an intent to
sell.
Appellant
further contends that it is not reasonable to infer that he intended to sell
the marijuana because he stated that the marijuana was for personal use and
that he was in the process of obtaining a medical marijuana card at the time of
his arrest. The jury was free to believe
appellant's testimony that he possessed the marijuana solely for his personal
use, but it was certainly not required to accept it. Appellant made no reference to seeking a
medical marijuana card. He did make two
references to a medical appointment, but provided no specifics of that
appointment. One of those references was
stricken. Appellant did testify that he
smoked a lot of marijuana because he enjoyed it. Nothing in appellant's testimony makes an
inference of intent to sell unreasonable.
3. Cruel and unusual punishment
Appellant
contends that his sentence of 25 years to life in state prison violates the
state and federal constitutional ban on cruel and unusual punishment. He specifically contends that the punishment
is cruel and unusual because he is 46 years old and will likely spend the rest
of his life in prison, the current offense does not present a significant
danger to society and does not imply that there was an increased risk of
recidivism, and the conduct at issue would have been legal if he had possessed
his medical marijuana card. He contends
that the punishment is not proportional to his offense.
Respondent
contends that appellant has waived this issue by failing to raise it in the
trial court. We agree.
The issue of whether appellant's
sentence is cruel and unusual punishment is a fact intensive one, and is based
on the nature and facts of the crime and offender. (See People v. Weddle (1991) 1 Cal.App.4th 1190, 1196.) It is waived if not raised in the trial
court. (People
568, 583; People v. DeJesus
(1995) 38 Cal.App.4th 1, 27; see generally People v. Scott (1994) 9 Cal.4th 331, 356.) Further, assuming for the sake of argument
that this claim were not waived, given the facts before us, we would find that
appellant's sentence did not constitute cruel and unusual punishment.
The United States Supreme Court has
stated that a "standard of gross disproportionality" has been
"articulated in our Cruel and Unusual Punishments Clause
precedents." (United States v.
citing Solem v. Helm (1983) 463 U.S.
277, 288 and Rummel
(1980) 445 U.S. 263, 271; see People
(2003) 109 Cal.App.4th 221, 230.)
"[T]he 'precise contours' of the proportionality principal 'are
unclear,' [citation]" and the principle is "applicable only in the
'exceedingly rare' and 'extreme' case."
(Lockyer v. Andrade (
Cal.App.4th 964, 977; see also Gonzalez
v. Duncan (Gonzalez) (9th
Cir. 2008) 551 F.3d 875, 879-880.)
Here, appellant received his 25
year to life sentence pursuant to the Three Strikes law. When the legislature has mandated lengthy
sentences for recidivism, appellate courts consider an offender's current
felony and his history of felony recidivism to determine the gravity of the
offense for proportionality purposes. (
U.S. 11, 29.)
Appellant has a lengthy and serious
criminal history including 27 prior serious or violent felony convictions, as
detailed in section 4, post. Although his current offense is not
inherently violent and is less serious than his prior offenses, his commission
of this offense shows a continued willingness to violate the law. Further, appellant's behavior during trial
shows he is a continued threat to society.
As is detailed in section 4, post,
appellant was remanded into custody for attempting to intimidate the prosecutor
and the prosecution's witnesses. His
sentence is not cruel and unusual punishment.
(See Ewing
supra, 538 U.S. at p. 29 [sentence of 25 years to life imposed on a
third-strike offender who stole three golf clubs does not violate the Eighth
Amendment's prohibition against cruel and unusual punishment]; see also
imposed on a third-strike offender who stole approximately $150 worth of
videotapes in two separate incidents not cruel and unusual punishment];
Supreme Court upheld a sentence under a Texas recidivist statute of life with
the possibility of parole for obtaining $120.75 by false pretenses, even where
the defendant's previous offenses consisted of fraudulent use of a credit card
to obtain goods and services worth $80 and passing a forged check in the amount
of $28.36].)
Appellant relies on
U.S. 957 and People
(2005) 127 Cal.App.4th 1066 to show disproportionality. That reliance is misplaced. In Carmony,
the Court of Appeal found that the defendant's sentence of 25 years to life in
prison for failing to update his registration as a sex offender was cruel and unusual
punishment. However, the defendant's
offense was a violation of a regulatory requirement. He had just registered a month before the
required update and was still at that registered address when it was time to
update. Thus, his address was known to
authorities and his failure to update did not pose a direct or immediate
danger. Appellant's offense was not so
benign. In Harmelin, the United States Supreme Court upheld a sentence of life
without the possibility of parole for drug possession.
Appellant
also contends his sentence is grossly disproportionate to his crime because it
is the same punishment he would have received if he had been convicted of the
more serious offenses of second degree murder or forcible rape. However, appellant's sentence is not
dissimilar to others imposed under the Three Strikes law that have repeatedly
been upheld by California courts. (See,
e.g., People v. Romero (2002) 99
Cal.App.4th 1418, 1431-1433 [sentence of 25 years-to-life imposed for third
strike of felony petty theft]; People
v. Goodwin (1997) 59 Cal.App.4th 1084, 1093-1094 [sentence for 25
years-to-life imposed for third strike of petty theft with a prior conviction];
Ewing, supra, 538 U.S. 11, 20-21 [sentence of 25 years-to-life in prison
for felony theft of golf clubs under California's Three Strikes law, with prior
felonies of robbery and burglary, did not violate federal prohibition on cruel
and unusual punishment].)
In short, appellant has not been
sentenced to 25 years to life in prison because he possessed marijuana for
sale. Rather, he was so sentenced
because he is a career criminal who has demonstrated that he has no intention
of abiding by the laws of the State of California. Appellant's sentence is not so
disproportionate to his crimes that it shocks the conscience and offends
dignity. As applied, the Three Strikes
law does not violate the constitutional prohibitions against cruel and/or
unusual punishment.
4. Refusal to strike
Appellant
contends that the trial court abused its discretion when it refused to strike
some or all of his prior strike convictions.
We see no abuse of discretion.
In ruling
on a motion to strike a prior conviction, the trial court "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
scheme's 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.
148, 161.)
Rulings on
motions to strike prior convictions are reviewed under the deferential abuse of
discretion standard. Under that standard
an appellant who seeks reversal must demonstrate that the trial court's
decision was irrational or arbitrary. It
is not enough to show that reasonable people might disagree about whether to
strike one or more of his prior convictions.
(People v. Carmony (2004) 33
Cal.4th 367, 373.)
Here, the
current offense was not itself a violent or serious felony. Further, as the court recognized, the amount
of marijuana possessed for sale was relatively small. The court noted, however, that appellant had
a very cavalier attitude toward his current offense and the law.
The court
also considered, as it was required to, appellant's extensive criminal
record. Appellant had 27 prior
convictions within the meaning of the Three Strikes law as follows: 16 counts of robbery; one count of attempted
murder; four counts of rape; four counts of lewd act with a child under 14
years of age; four counts of assault with a firearm; three counts of false
imprisonment; and two counts of forcible sexual penetration. Appellant committed many of these crimes with
fellow 65 Menlo Gangster Crip gang members.
The majority of those convictions arose from a crime spree which took
place from 1984 through 1985. Toward the
end of this crime spree, appellant and his accomplices shot and paralyzed a
police officer, who ultimately died near the time of sentencing in the instant
case as a result of complications from the gunshot wound. The court recognized that appellant's most serious
prior convictions were old and about half of the convictions took place on a
single occasion, but also found that the offenses were "exceedingly
violent."
The court also recognized that
appellant had not led a crime-free life since those convictions. During his imprisonment for the
above-described crimes, appellant continued to engage in violent conduct and
disobey the law. He was found to have possessed two gallons of
inmate-manufactured alcohol in 1988; falsified an inmate pass in 1988; engaged
in fist-fighting with another inmate in 1989; possessed an inmate-manufactured
"slashing type" weapon concealed inside an apple in 1989;
"refus[ed] to lock-up" in 1990; posed as another inmate to make a
telephone call in 1991; engaged in fist-fighting with other inmates where one
inmate suffered a stab wound to the head and another inmate suffered a stab
wound to the neck in 1996; and possessed a stabbing instrument in 1997.
Appellant was paroled in 2003. His parole was revoked in 2006 when he
violated his release conditions by associating with other known gang members in
a known gang location in the presence of other gang members, multiple weapons,
and narcotics. In 2007, appellant was
arrested when officers entered a home with a search warrant and found appellant
in the presence of two other 65 Menlo Gangster Crips and a large amount of
marijuana and marijuana packaging materials.
The court also considered
appellant's background, character and prospects. The court found that appellant had maintained
his gang ties and had been found on numerous occasions with gang members and at
gang events. During the pendency of this
trial, appellant was remanded into custody for activity which was
"essentially a threat to kill the prosecutor." Further, appellant was unemployed and smoked
a lot of marijuana.
The court denied the motion to
strike, explaining: "The court
would note that the court is bound and needs to consider factors beyond the
present offense in making this determination, although, the present offense
certainly was considered by the court and to some extent was determined to be a
mitigating factor that would support striking perhaps some or all of the
strikes. However, the court, in
considering the entire picture as the court described, and the law requires,
determined that that would be inappropriate in this case."
The trial court's comments indicate
that it properly considered the nature and circumstances of appellant's current
and prior convictions and the particulars of his background, character and
prospects, and reached an impartial decision.
(People v. Williams,
discretion.
Disposition
The
judgment is affirmed.
ARMSTRONG,
J.
We concur:
TURNER,
P. J.
KRIEGLER,
J.
with facts matching the facts of this case, Los Angeles Police Officer Stephen
McClean opined that the marijuana was possessed for sale. Officer McClean testified as a gang
expert. A gang enhancement was alleged
in this case, but the jury did not find it to be true.
testified at the suppression hearing.
Their accounts of the stop were essentially the same as their trial
testimony, summarized above. This
account differed from Officer Nonora's account.
The court was not required to, and did not find Smith's and appellant's
testimony credible.
