People v. Fleming

• Decision Date: 28 May 2013
• Docket Number: B241293
• Citation: People v. Fleming, B241293 (Cal. App. May 28, 2013)
• Parties: THE PEOPLE, Plaintiff and Respondent, v. RANDY FLEMING, Defendant and Appellant.
• Court: California Court of Appeals

THE PEOPLE, Plaintiff and Respondent, v.RANDY FLEMING, Defendant and Appellant.

B241293

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FIVE

Filed: May 28, 2013

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b).This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County

Super. Ct.No. BA363372)

APPEAL from a judgment of the Superior Court of Los Angeles 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.

AppellantRandy 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)and1170.12(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 cruel and unusual punishment.We affirm the judgment of conviction.

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.¹

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.AsSmith 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. United States(1963)371 U.S. 471.)

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 ofestablishing 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,...