People v. Holloway

• Decision Date: 07 August 1996
• Docket Number: No. B092858,B092858
• Citation: 55 Cal.Rptr.2d 547,47 Cal.App.4th 1757
• Parties: , 96 Cal. Daily Op. Serv. 5916, 96 Daily Journal D.A.R. 9641 The PEOPLE, Plaintiff and Respondent, v. Willie Ester HOLLOWAY, Defendant and Appellant.
• Court: California Court of Appeals

Page 547

55 Cal.Rptr.2d 547

47 Cal.App.4th 1757, 96 Cal. Daily Op. Serv. 5916,

96 Daily Journal D.A.R. 9641

The PEOPLE, Plaintiff and Respondent, v. Willie Ester HOLLOWAY, Defendant and Appellant.

No. B092858.

Court of Appeal, Second District, Division 1, California.

Aug. 7, 1996.

Certified for Partial Publication. ^*

Rehearing Denied Sept. 5, 1996.

[47 Cal.App.4th 1760] Sharon M. Jones, under appointment by the Court of Appeal, Ventura, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Assistant Attorney General, Pamela C. Hamanaka and Kenneth N. Sokoler, Deputy Attorneys General, for Plaintiff and Respondent.

ORTEGA, Associate Justice.

Willie Ester Holloway, among others, bought rock cocaine from undercover police officers posing as drug sellers in a reverse sting operation designed to catch and deter drug traffickers plaguing many neighborhoods. Holloway appeals from the judgment entered following his resulting conviction by the court of possessing cocaine. (Health & Saf. Code, § 11350, subd. (a).) Holloway also admitted a prior serious felony conviction. (Pen. Code, § 667, subds. (b)-(i).) ¹ He received a 16-month lower term, doubled under the legislative three strikes law (§ 667, subds. (b)-(i)), for a total 32-month sentence.

ISSUES AND HOLDING

Holloway challenges three alleged trial court errors. (I) During the operation that resulted in his arrest, the police used rock cocaine manufactured from powder cocaine, planned to offer small samples of rock cocaine to potential buyers if necessary to complete sales, and failed to recover all cocaine used in the program. Holloway argues this activity constituted outrageous police conduct for which the trial court should have dismissed his case. (II) In this non-bifurcated court trial, the People did not present evidence of Holloway's prior conviction before the trial court convicted him of cocaine possession. Holloway argues the trial court erroneously permitted the People to reopen, over his double jeopardy objection, to prove his prior conviction. (III) Holloway raises several challenges to the three strikes law. In addition, for the first time in their response brief, the People, who did not appeal, contend (IV) Holloway's presentence custody credits should be reduced.

In the published portion of this opinion, we reject Holloway's first two contentions. (I) We find the outrageous police conduct defense exists independent of the entrapment defense. However, none of the challenged police conduct was aimed at Holloway and most did not occur in his case. The outrageous government conduct defense cannot be asserted vicariously. (II) We also find that, because the trial was not finished, and Holloway earlier told the prosecutor he would admit the prior conviction, the double jeopardy prohibition was not violated. In the unpublished portion of the opinion, we reject all but one of Holloway's challenges to the three strikes law. We remand the matter for resentencing for the trial court to exercise its discretion whether to dismiss Holloway's strike. We also reject the People's contention (issue IV). We remand for resentencing and otherwise affirm the judgment.

FACTS

On April 13, 1994, Santa Monica Police Investigator Maury Sumlin obtained a court order permitting the Los Angeles County Sheriff's Crime Laboratory to process 116.31 grams of cocaine powder, seized in an unrelated, closed case, into rock cocaine. The order permitted the manufactured rock cocaine to be combined with other rock cocaine seized in other closed cases for use in a reverse sting operation designed to arrest cocaine sellers, buyers, and users at several spots in the city plagued by drug activity.

Sumlin's declaration supporting the requested order stated: "[T]he locations to be used for these operations are the subject of an ongoing investigation. The investigation was initiated because of numerous citizen complaints of narcotics trafficking and supported by a high number of arrests for the trafficking of controlled substances. Santa Monica Police officers have made numerous undercover purchases of controlled substances at these locations recently. [p] ... At present, 'rock cocaine' is the normal type of cocaine sold at these locations." The court order required the rock cocaine be used only as part of the undercover reverse sting operation. Any cocaine not so used was to be returned to the police property division and accounted for. The order stated "that should the suspect request a sample to test the quality of the cocaine that Investigator Maury Sumlin may allow up to three (3) grams of cocaine to be used to consummate the transaction."

On the evening of April 29, 1994, Santa Monica police officers conducted an undercover reverse sting operation on the Arizona stairs in Palisades Park. Much drug trafficking and related arrests occurred there. The operation was designed to reduce drug sales and purchases in the area. Officers Sipos and Acosta posed as drug sellers. Sipos stood near the top of the stairs, and Acosta was below at the second landing. Holloway approached and contacted Sipos. After a brief conversation, Sipos and Holloway walked closer to the stairs. Sipos pointed to Acosta and told Holloway " 'go down to that guy right there, he's the one that's holding.' "

Holloway approached Acosta. The two men had a discussion, "briefly ... arguing over the amount of money that [Holloway] had...." Acosta asked Holloway "if that was all he had." Holloway answered " '[Y]eah, man, that's all[.]' " Acosta took some rock cocaine from a container and showed it to Holloway. Holloway handed Acosta $7 in currency, and Acosta handed Holloway three pieces of rock cocaine worth a total of about $60 if resold. Acosta told Holloway " '[Y]ou're gonna like this shit.' " Holloway looked at the drugs in his hand. As Holloway turned around, other nearby undercover officers posing as potential drug buyers approached and arrested him. Before the officers could reach him, he threw away the cocaine bought from Acosta. Two pieces of rock cocaine hit a nearby wall and were recovered by the officers. Two pieces went over the wall and were not recovered. ²

In addition to Holloway, the police arrested about 50 other people who approached and bought drugs from them that evening. Several other pieces of rock cocaine were lost over the wall during the other arrests. At least one officer searched the area over the wall and recovered one piece of rock cocaine. The same officer recovered several other pieces which were thrown or dropped where the arrests were made.

The trial court denied Holloway's section 995 motion based on alleged outrageous government conduct. The trial court later denied a similar motion made at trial, stating: "I do not find what occurred here constituted outrageous police conduct. I agree with [Holloway] that we do have a theory and a vehicle for testing the due process treatment of a defendant, and the outrageous government conduct [claim] is a valid inquiry. I just don't believe it occurred in this case. [p] I disagree with [State v. Williams (Fla.1993) 623 So.2d 462]. I can't believe that the fact that the police take confiscated powder cocaine and turn it into rock cocaine because that's what's sold in a particular location constitutes outrageous police conduct, nor the fact that the people who come to the police or who are willing to buy cocaine from the police try to throw it makes that conduct outrageous. [p] I think this case is distinguished from [People v. Backus (1979) 23 Cal.3d 360, 152 Cal.Rptr. 710, 590 P.2d 837] wherein there in fact were sort of unconditional conveyances of heroin to known informants. In this situation, once the person purchased and took possession of the cocaine, it was the intention of the police and in fact the history of this operation that the police would retrieve the cocaine as far as possible. That a little was lost does not make that outrageous."

DISCUSSION

I. Outrageous Police Conduct.

Before deciding if the challenged police conduct was improper enough to warrant dismissal, we must determine whether this defense exists independent of the related entrapment defense. "[T]he proper test of entrapment in California is the following: was the conduct of the law enforcement agent likely to induce a normally law-abiding person to commit the offense? For the purposes of this test, we presume that such a person would normally resist the temptation to commit a crime presented by the simple opportunity to act unlawfully. Official conduct that does no more than offer that opportunity to the suspect--for example, a decoy program--is therefore permissible; but it is impermissible for the police or their agents to pressure the suspect by overbearing conduct such as badgering, cajoling, importuning, or other affirmative acts likely to induce a normally law-abiding person to commit the crime.

"Although the determination of what police conduct is impermissible must to some extent proceed on an ad hoc basis, guidance will generally be found in the application of one or both of two principles. First, if the actions of the law enforcement agent would generate in a normally law-abiding person a motive for the crime other than ordinary criminal intent, entrapment will be established. An example of such conduct would be an appeal by the police that would induce such a person to commit the act because of friendship or sympathy, instead of a desire for personal gain or other typical criminal purpose. Second, affirmative police conduct that would make commission of the crime unusually attractive to a normally law-abiding person will likewise constitute entrapment. Such conduct would include, for example, a guarantee that the act is not illegal or the offense will go undetected, an offer of exorbitant consideration, or any similar enticement.

"Finally, while the inquiry...