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THE PEOPLE v. DONALD LEWIS WINN

November 30, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
DONALD LEWIS WINN, DEFENDANT AND APPELLANT.



APPEAL from the Superior Court of San Bernardino County. Donna G. Garza, Judge. (Super.Ct.No. FSB804727) Affirmed.

The opinion of the court was delivered by: Ramirez P.J.

P. v. Winn

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION

Defendant Donald Lewis Winn was found guilty by a jury of cocaine possession (Health & Saf. Code, § 11350, subd. (a)), a lesser offense included within the charge of possessing cocaine base for sale. (Health & Saf. Code, § 11351.5.) In a bifurcated proceeding, the trial court found he had two prior serious felony convictions (Strikes; Pen. Code, § 667, subds. (b)-(i)), and three prison priors. (Pen. Code, § 667.5, subd. (b).) He was sentenced to prison for a term of 28 years to life and appeals.

On appeal, defendant argues errors relating to (1) the legality of his detention; (2) the in camera review of law enforcement personnel records per Pitchess v. Superior Court (1974) 11 Cal.3d 531; (3) the court's refusal to dismiss any of defendant's Strike priors; (4) cruel and unusual punishment; and (5) the sufficiency of the proof of defendant's juvenile Strike prior. We affirm.

BACKGROUND

On November 24, 2008, San Bernardino Police Officers Canright and Emon parked across from a liquor store, located near the intersection of Sierra Way and Baseline in San Bernardino, to monitor pedestrian activity in the parking lot of the store. The officers were part of the Crime Impact Team, who conduct proactive patrols throughout the city, and more particularly in areas described as Operation Phoenix. The area of Baseline and Sierra Way is an Operation Phoenix area because it has high rates of gang, drug, and other problems.

While monitoring the liquor store parking lot, the officers' attention focused on defendant who was standing in the parking lot but had not entered the liquor store during the approximate 10 minutes he was observed. During the time the officers observed him, pedestrians approached defendant and engaged him in brief conversation. After 10 minutes of standing in the parking lot, where loitering was prohibited,*fn1 defendant left the parking lot, walked southbound on the east crosswalk and continued southbound on Sierra Way. The officers followed defendant in their vehicle and contacted him, explaining Operation Phoenix and the activities they monitored at the liquor store.

The officers asked defendant for his name and date of birth, and, after obtaining this information from defendant, Officer Emon ran a records check on defendant using the computer in the patrol vehicle. The record check revealed a misdemeanor arrest warrant. Officer Canright advised defendant of the warrant, asked defendant if he had anything illegal on his person, and then asked if he could check defendant for weapons or narcotics. Officer Canright then proceeded to search defendant, starting with his hair. Officer Canright pulled back a hair scrunchy that held defendant's ponytail and saw plastic packaging with an off-white substance in it, which he suspected was contraband.

Officer Canright attempted to restrain the defendant once he realized there was contraband, but lost grip of one of defendant's hands and the two men fell to the ground. Officer Emon then assisted with handcuffing defendant and the search was completed. Officer Canright found that the baggie behind the hair scrunchy contained 10 smaller, individually wrapped rocks of cocaine base. No other drug paraphernalia, or indicia of sales activity, was found on defendant's person. Laboratory testing confirmed that the rocks were made of cocaine base.

Defendant was charged with possession of cocaine base for sale. (Health & Saf. Code, § 11351.5.) The second amended information included an allegation that defendant had previously been convicted of possession for sale of drugs (Health & Saf. Code, § 11370.2, subd. (a)), as well as allegations that defendant had suffered three prior felony convictions for which he had served prison terms (prison priors) (Pen. Code, § 667.5, subd. (b)), and two prior serious felony convictions, within the meaning of the Strikes law. (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d).) Defendant made a pretrial motion to suppress evidence (Pen. Code, § 1538.5), which was denied, and a motion for discovery of personnel records of the arresting officers.

Following a jury trial, defendant was convicted of the lesser offense of straight possession of cocaine (Health & Saf. Code, § 11350, subd. (a)). After defendant waived his right to a jury determination on the truth of the prior conviction allegations, a court trial was conducted. The court made true findings as to all three prison priors, as well as the two Strike priors. At the sentencing hearing, the court declined the invitation to strike one of the Strike priors, and denied probation. Defendant was sentenced to an indeterminate sentence of 25 years to life for the substantive charge, plus three consecutive one-year terms for the prison priors. Defendant timely appealed.

DISCUSSION

1. The Contact Between Police and Defendant Was a Consensual Encounter.

Defendant argues that the initial contact with police was a detention, not a consensual encounter, which requires reversal of the order denying the suppression motion. We disagree.

Whether a seizure occurred within the meaning of the Fourth Amendment is a mixed question of law and fact qualifying for independent review. (People v. Zamudio (2008) 43 Cal.4th 327, 341.) We review the trial court's factual findings under the deferential substantial evidence standard, accepting factual inferences in favor of the trial court's ...


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