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November 30, 2010


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



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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


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.


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.


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 ruling, and we independently decide the ultimate constitutional question. (Id. at p. 342.)

Not all personal intercourse between an officer and a citizen involves a "seizure" of the person. (Florida v. Bostick (1991) 501 U.S. 429, 434 [111 S.Ct. 2382, 115 L.Ed.2d 389].) A seizure occurs only when the officer, by means of physical force or show of authority, terminates or restrains a person's freedom of movement through means intentionally applied, as opposed to a restraint through an unknowing act. (Brendlin v. California (2007) 551 U.S. 249, 254 [127 S.Ct. 2400, 168 L.Ed.2d 132].) A detention is a seizure of the person, within the meaning of the Fourth Amendment. (Terry v. Ohio (1968) 392 U.S. 1, 19, fn. 16 [88 S.Ct. 1868, 20 L.Ed.2d 889].) To determine whether a person has been detained, we ask whether a reasonable person under the circumstances would have thought he or she was free to leave. (Brendlin, at p. 2405.)

Law enforcement officers do not violate the Fourth Amendment's prohibition of unreasonable seizures merely by approaching individuals on the street or in other public places and putting questions to them if they are willing to listen. (United States v. Drayton (2002) 536 U.S. 194, 200 [122 S.Ct. 2105, 153 L.Ed.2d 242]; In re Manuel G. (1997) 16 Cal.4th 805, 821.) Even when law enforcement officers have no basis for suspecting a particular individual, they may pose questions, ask for identification, and request consent to search luggage -- provided they do not induce cooperation by coercive means. (Drayton, at p. 201, citing Florida v. Bostick, supra, 501 U.S. at pp. 434-435.)

Further, officers may ask a person for identification without implicating the Fourth Amendment. (Hiibel v. Sixth Judicial Dist. Court of Nev., Humboldt Cty. (2004) 542 U.S. 177, 185 [124 S.Ct. 2451, 159 L.Ed.2d 292]; People v. Vibanco (2007) 151 Cal.App.4th 1, 13.) Thus, a mere request for identification does not transmogrify a contact into a Fourth Amendment seizure. (People v. Cartwright (1999) 72 Cal.App.4th 1362, 1370, citing People v. Lopez (1989) 212 Cal.App.3d 289, 291; see also I.N.S. v. Delgado (1984) 466 U.S. 210, 216 [104 S.Ct. 1758, 80 L.Ed.2d 247].) Finally, conducting a brief warrant check during a consensual encounter does not constitute a seizure of the person. (People v. Bouser (1994) 26 Cal.App.4th 1280, 1285-1287.)

Here, the officers approached the defendant, who had been observed loitering in a liquor store parking lot, and asked him for his identification. Defendant provided identifying information, and Officer Emon ran a records check, which took between one and five minutes. Up to the point at which the arrest warrant was found, the contact was a consensual encounter. The fact that Officer Emon may have taken the defendant's identification*fn2 when she ran the records check does change the nature of the contact, since a pedestrian is free to walk away without an identification card.

After Officer Canright advised defendant of the outstanding warrant, he asked if defendant had any weapons or drugs on his person. At this point, defendant was under arrest on the outstanding warrant. Defendant stated he did not have anything illegal and told the officer to go ahead and search. The 10 pieces of cocaine base were found during a valid search incident to a valid arrest.

Defendant argues that the lack of a state statute criminalizing loitering renders the contact unlawful. However, a county or city is authorized to "make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws." (Cal. Const., art. XI, § 7.) "When a police officer makes an arrest pursuant to an ordinance or statute, he is enforcing the determination by a legislative body that certain conduct is unlawful. Until or unless the legislation is stricken, it is presumptively valid and defines a criminal offense. If probable cause is established for all the elements of the offense, the officer's duty is to apprehend the violator; . . ." (People v. Ramirez (1983) 34 Cal.3d 541, 546.)

Thus, even if the contact could be described as a detention, a possible violation of an ordinance furnishes grounds for detaining an individual for questioning. (Santos v. Superior Court (1984) 154 Cal.App.3d 1178, 1184 [initial detention for loitering valid, but denial of suppression motion reversed because detention unduly prolonged and patdown unjustified].)

The denial of the suppression motion was proper.

2. Appellate Review of the Pitchess Proceedings.

In the trial court, defendant sought discovery of the personnel records of Officers Canright and Emon relating to acts of dishonesty, false arrest, illegal search and seizure, fabrication of charges, planting of evidence, bias, and use of excessive force. The motion was made pursuant to Pitchess v. Superior Court, supra, 11 Cal.3d 531, relating to discovery of information subject to governmental privilege. (Evid. Code, § 1043 et seq.)

Prior to conducting the in camera review of the files, the court informed the parties that its review would be limited to issues involving honesty, drugs, and fabrication of charges, indicating there was no cause to inquire into false arrests, illegal searches or excessive force. Defendant did not object to the limitations. The trial court examined the personnel files in chambers and found no discoverable evidence.

Defendant requests that we review the sealed transcript of the in camera hearing to determine whether the trial court abused its discretion by ruling that the records produced no discoverable material. (People v. Gill (1997) 60 Cal.App.4th 743, 749 [abuse of discretion standard].) We have reviewed the in camera proceedings. (People v. Mooc (2001) 26 Cal.4th 1216, 1232.) After reviewing the sealed transcript of the in camera proceedings, we conclude that the records contain no discoverable material. There was no error.

3. The Trial Court Did Not Abuse Its Discretion In Declining to Strike a Strike.

Defendant contends the trial court abused its discretion by denying his request that the court exercise its discretion to strike the Strike allegations (Pen. Code, § 1385). We disagree.

Penal Code section 1385 permits a trial court to exercise its discretion and dismiss a prior strike conviction if the dismissal is in the furtherance of justice. (People v. Williams (1998) 17 Cal.4th 148, 158.) A court's refusal or failure to strike a prior conviction allegation is subject to review under the deferential abuse of discretion standard. (People v. Carmony (2004) 33 Cal.4th 367, 374.) A trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it. (Id. at p. 377.)

The Three Strikes law was intended to restrict courts' discretion in sentencing repeat offenders. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 528.) To achieve this end, "'the Three Strikes law does not offer a discretionary sentencing choice, as do other sentencing laws, but establishes a sentencing requirement to be applied in every case where the defendant has at least one qualifying strike, unless the sentencing court "conclud[es] that an exception to the scheme should be made because, for articulable reasons which can withstand scrutiny for abuse, this defendant should be treated as though he actually fell outside the Three Strikes scheme."'" (People v. Carmony, supra, 33 Cal.4th at p. 377, citing People v. Strong (2001) 87 Cal.App.4th 328, 337-338.)

In deciding whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law, the court in question 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. Williams, supra, 17 Cal.4th at p. 161.)

In reviewing defendant's criminal history as described in the probation report, we note that defendant has not enjoyed any significant break from crime. He was committed to the California Youth Authority for a maximum period of five years in 1989. In 1993, four years later, he was convicted of possessing cocaine base for sale (Health & Saf. Code, § 11351.5) and received a three-year sentence. In 1996, three years later, defendant was convicted of robbery (Pen. Code, § 211) and received a sentence of five years. In 2000, four years later, defendant was convicted of being a felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1)), and was sentenced to six years in state prison. In 2006, six years later, defendant was charged with a misdemeanor, driving under the influence of drugs or alcohol (Veh. Code, § 23152, subd. (a)), of which he was convicted in April 2008. He served 60 days in jail and was apparently out of custody for approximately 60 days before being arrested for disorderly conduct. (Pen. Code, § 647, subd. (f).) Shortly after that, he was arrested for a misdemeanor charge of driving on a suspended license. (Veh. Code, § 14601.2, subd. (a).) Three months later he was arrested on the current charges.

While the three most recent convictions prior to the current crime were non-serious misdemeanors, it is significant that defendant engaged in illegal activities shortly after his release on every one of his prior convictions. He may be properly described as a "revolving-door career criminal for whom the Three Strikes law was devised." (People v. Gaston (1999) 74 Cal.App.4th 310, 320; see also People v. Pearson (2008) 165 Cal.App.4th 740, 749.) In other words, the fact a prior conviction is remote or that his more recent offenses are less serious has little mitigating force where the defendant has led a continuous life of crime. (Pearson, at p. 749.)

Reviewing defendant's background, character, and prospects, we conclude the court did not abuse its discretion in declining the invitation to strike one of defendant's prior Strikes.

4. Defendant's Sentence Does Not Violate the Constitutional Prohibition Against Cruel and Unusual Punishment.

Defendant argues that his life sentence for possession of cocaine constitutes cruel and unusual punishment. We note that this issue was not preserved in the trial court. (See People v. Norman (2003) 109 Cal.App.4th 221, 229; People v. DeJesus (1995) 38 Cal.App.4th 1, 27.) However, we have authority to reach the merits where it has been fully briefed by both parties. (People v. Meeks (2004) 123 Cal.App.4th 695, 706-707.)

Under the Eighth Amendment of the United States Constitution, as well as under the California Constitution, article I, section 17, a punishment is cruel and unusual if it is disproportionate to the severity of the crime for which it is inflicted. (Rummel v. Estelle (1980) 445 U.S. 263, 271 [100 S.Ct. 1133, 63 L.Ed.2d. 382]; People v. Estrada (1997) 57 Cal.App.4th 1270, 1278.) The test for whether a sentence is grossly disproportionate and thus cruel and unusual requires review of (a) the gravity of the offense and the harshness of the penalty; (b) sentences imposed on other criminals in the same jurisdiction; and (c) sentences imposed for the commission of the same crime in other jurisdictions. (People v. Carmony, supra, 127 Cal.App.4th at p. 1076.) Only in the rare case where the first factor is satisfied does a reviewing court consider the other two factors. (Harmelin v. Michigan (1991) 501 U.S. 957, 1005 [111 S.Ct. 2680, 115 L.Ed.2d 836].)

We agree the sentence is harsh. The whole point of the Three Strikes law was to incapacitate persons who have already been convicted of at least one serious or violent crime. (Ewing v. California (2003) 538 U.S. 11, 25 [123 S.Ct. 1179, 155 L.Ed.2d 108].) In weighing the gravity of defendant's offense, we "place on the scales not only his current felony, but also his long history of felony recidivism." (Id. at p. 29.) Even if the current offense is not serious, the sentence can be justified by the state's public-safety interest in incapacitating and deterring recidivist felony, and the defendant's own long, serious criminal record. (Id. at pp. 29-39.) In this light, the gravity of the offense, viewed along with defendant's recidivism, leads us to conclude the sentence is not grossly disproportionate. For this reason, we do not need to discuss intrastate and interstate comparisons of sentences for the same crime. (Harmelin v. Michigan, supra, 501 U.S. at p. 1005; People v. Haller (2009) 174 Cal.App.4th 1080, 1091-1092.)

Nevertheless, we consider key decisions of the United States Supreme Court on the effect of the Strikes law on recidivist offenders. Our nation's highest court upheld a sentence of 50 years to life for a petty thief with prior convictions for serious or violent felonies under a disproportionality analysis. (Lockyer v. Andrade (2003) 538 U.S. 63, 77 [123 S.Ct. 1166, 155 L.Ed.2d 144].) The same court upheld a sentence of 25 years to life for a current offense (wobbler) of shoplifting three golf clubs, worth $1,200, after having been convicted of serious felonies including robbery and three residential burglaries. (Ewing v. California, supra, 538 U.S. at pp. 28-30.) Comparatively speaking, defendant's crime of possessing cocaine base (Health & Saf. Code, § 11350, subd. (a)) is more serious than either Ewing or Andrade, because the offense in this case does not involve a wobbler;*fn3 it is a straight felony.

Given the defendant's extensive history of recidivism, the sentence does not constitute cruel or unusual punishment.

5. There Was Substantial Evidence to Support the Trial Court's Finding on the Juvenile Strike Prior Allegation.

Defendant argues that there is insufficient evidence to support the true finding that defendant had suffered the juvenile strike prior. Specifically, he points to a discrepancy in the spelling of defendant's middle name,*fn4 and the lack of fingerprint evidence, to argue no reasonable trier of fact could have made a true finding of that Strike allegation beyond a reasonable doubt. We disagree.

Since defendant did not admit the prior adjudication, it was necessary that the jury, or the court, find whether he had suffered the prior adjudication. (People v. Ahouse (1958) 162 Cal.App.2d 586, 588.) The People must prove all elements of an alleged sentence enhancement beyond a reasonable doubt. (People v. Miles (2008) 43 Cal.4th 1074, 1082.) On review, we examine the record in the light most favorable to the judgment to ascertain whether it is supported by substantial evidence. (Id. at p. 1083.)

A common means of proving the fact and nature of a prior conviction is to introduce certified documents from the record of the prior court proceeding. (People v. Delgado (2008) 43 Cal.4th 1059, 1066.) Once the prosecutor presents prima facie evidence of conviction, the trial court is allowed to make reasonable inferences from the facts presented. (People v. Henley (1999) 72 Cal.App.4th 555, 561.) If there is no evidence to the contrary, the court may consider the abstract and facts of the particular case, and, utilizing the official duty presumption, find the defendant was convicted of the prior felony. (Ibid.)

It has long been held that the identity of the person may be presumed or inferred from identity of name, absent any countervailing evidence. (People v. Mendoza (1986) 183 Cal.App.3d 390, 401.) A mistake in the middle name is usually considered to be immaterial. (Ibid.) Where the records of the prior conviction include the same birthdate as the defendant, the trier of fact may find that he was the same person as the person who suffered the prior conviction. (People v. Towers (2007) 150 Cal.App.4th 1273, 1286.)

In Mendoza, the defendant was charged, tried and convicted under the name of "Arthur Flores Mendoza," although the certified copies of records of his prior convictions included various other middle names, and different spellings of the middle name Contreras. (People v. Mendoza, supra, 183 Cal.App.3d at pp. 400-401.) The reviewing court concluded there was sufficient evidence of identity by way of the presumption of identity, to support the finding that he was the person who suffered the prior convictions. The fact that there may be other persons with similar names does not affect our view, because the similarity of the name in this case was bolstered by the identical dates of birth on both the juvenile prior and the other prior convictions.

There was substantial evidence to support the true finding as to the prior juvenile adjudication.

6. Defendant's Juvenile Wardship Was Properly Used As a Strike.

Defendant contends that because juveniles are not entitled to a jury trial, use of prior juvenile court adjudications to increase his sentence beyond the statutory maximum violates his rights to a trial by jury and due process of law. This was resolved by the California Supreme Court in People v. Nguyen (2009) 46 Cal.4th 1007 (Nguyen), holding that a juvenile adjudication can be used to increase a sentence under the Strikes law. (Id. at pp. 1010, 1019, 1028.)

The United States Supreme Court has held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." (Apprendi v. New Jersey (2000) 530 U.S. 466, 490 [120 S.Ct. 2348, 147 L.Ed.2d 435].) In Nguyen, the California Supreme Court held that the absence of a constitutional or statutory right to a jury trial under the juvenile law does not, under Apprendi, preclude the use of a prior juvenile adjudication of criminal misconduct to enhance the maximum sentence for a subsequent adult felony offense by the same person. (Nguyen, supra, 46 Cal.4th at p. 1028.) Defendant acknowledges that we are bound by principles of stare decisis, and that the issue was resolved in a manner contrary to his position in Nguyen.

In light of the recent holding of Nguyen, there was no error in the court's use of the juvenile adjudications as Strikes in this case.


The judgment is affirmed.



We concur:

s/Hollenhorst J.

s/McKinster J.

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