People v. Johnson
| Decision Date | 26 September 1990 |
| Docket Number | B047358,Nos. B044094,s. B044094 |
| Citation | 273 Cal.Rptr. 446,231 Cal.App.3d 1124 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Previously published at 231 Cal.App.3d 1124 231 Cal.App.3d 1124 The PEOPLE, Plaintiff and Respondent, v. Willie Samuel JOHNSON, Defendant and Appellant. In re Willie Samuel JOHNSON on Habeas Corpus. |
John K. Van de Kamp, Atty. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., Edward T. Fogel, Jr., Sr. Asst. Atty. Gen., Mark Alan Hart and Frederick Grab, Deputy Attys. Gen., for plaintiff and respondent.
The court sitting without a jury found defendant guilty of sale of cocaine (Health & Saf.Code, § 11352), and to be not true the allegations of prior felony convictions. He was sentenced to state prison for the upper term of five years. On appeal from the judgment, defendant claims the sentencing court erred in failing to consider as mitigating factors that a "very small one [.22 gram] rock sale" was involved, and that his waiver of jury served the interests of judicial economy. In a petition for writ of habeas corpus, which we ordered to be considered with the appeal, defendant contends he was deprived of his constitutional rights to effective assistance of counsel and due process because his trial attorney, Mr. Hane, had been suspended from the practice of law after being convicted of violating Penal Code section 288, subdivision (a).
In the evening of March 27, 1989, Officer Fenoglio was conducting a surveillance at 811 Rose Avenue for drug activity; he was crouched down behind some trash cans and a five-foot high wood fence with some missing slats near an alley by the rear courtyard of that address; at times the officer would look through the slats with his binoculars or over the top of the fence.
With binoculars, from a distance of about fifty or sixty feet, Officer Fenoglio saw defendant cross the alley and go into the courtyard at 811 Rose; after five or ten minutes, another man, later identified as Mario Miller, jogged up to defendant and talked to him from the other side of an iron fence; defendant reached through the fence with his finger and thumb and dropped a small white rock which appeared to be cocaine into Miller's open palm; Miller handed defendant some money, turned and jogged out of the alley to Eighth Street. Fenoglio made a police broadcast of Miller's description; within a few minutes, two officers saw Miller come out of the alley; the officers waited for Miller to get away some distance, then arrested him. When the two officers approached Miller, Miller dropped the white rock on the sidewalk and one of the officers picked it up. Later examination revealed the rock weighed .22 grams and contained a cocaine base.
Defendant stayed in the back of 811 Rose and talked to a couple of other people, but Fenoglio saw no other transactions. After learning that the officers had arrested Miller, Fenoglio radioed defendant's description to them; within an hour after arresting Miller, Fenoglio saw defendant walking down the rear stairwell of the apartment at 811 Rose; the two other officers had just entered the courtyard and Fenoglio radioed to them that defendant was to be arrested; the officers arrested defendant on the stairwell; they found $200 on his person.
Defendant did not take the stand, and no witnesses testified for the defense.
Appellant contends that the sentencing court, which imposed the upper term of five years, erred in failing to take into account two mitigating factors--that he waived jury and that the sale of cocaine involved a "very small one rock." He argues that the matter should be remanded for resentencing "for an informed exercise of discretion to determine whether the four-year midterm should be imposed."
The record fails to show any error or abuse of discretion by the trial court. The probation report stated that the "defendant has a felony record of two prior cocaine-related convictions in this jurisdiction and is currently on parole (which has been revoked) as the result of those convictions. Apparently a clerical error prevented the court from receiving evidence as to the defendant's priors.[ 1 The defendant immediately recognized the undersigned as being his probation officer from a prior grant." The probation report concluded that there "appear to be no circumstances in mitigation," and that the circumstances in aggravation "clearly outweigh those in mitigation." The five circumstances in aggravation listed in the report are the planning, sophistication or professionalism with which the crime was carried out indicated premeditation; defendant's prior convictions were numerous or of increasing seriousness; he had served prior prison terms; he was on parole when the crime was committed; and his prior performance on probation or parole was unsatisfactory.
At the time of sentence, defense counsel argued that The trial court disagreed that the case was close, stating:
Our record thus establishes that the court was aware of the two factors cited by appellant and did take them into account in sentencing, but either rejected them as insignificant mitigating factors under the circumstances of this case (see People v. Thompson (1982) 138 Cal.App.3d 123, 127, 187 Cal.Rptr. 612), or of little weight when balanced against the aggravating factors.
Appellant concedes that a jury trial waiver does not ipso facto establish a mitigating factor, but claims that his conduct nevertheless served the interests of judicial economy. Inasmuch as many alleged factors in mitigation are disputable either because they may not be established by the evidence or because they may not be mitigating under the circumstances of a particular case (In re Handa (1985) 166 Cal.App.3d 966, 973, 212 Cal.Rptr. 749), the trial court did not err in impliedly concluding that the jury waiver and the small size of the rock of cocaine were "disputable" in the sense that under the facts of this case they were not mitigating factors.
The probation report indicated that appellant admitted using cocaine for 10 years; at one point he had a habit of $300 to $400 per day; to pay for this habit, he "hustles"; he had never been in a drug treatment program. The court also found to be significant that the crime was similar to a prior crime for which he was on parole. Under these circumstances, in which appellant was clearly neither a first offender nor an occasional user, nor apparently interested in treatment for his habit, the fact that the crime involved a small rock is insignificant. Substantial evidence supports the trial court's implied conclusion that the "small rock" sale was not an isolated occurrence but part of a continuing course of criminal conduct that appellant was not interested in changing, and thus not deserving of consideration as a mitigating factor.
Appellant's citation to People v. Jackson (1987) 196 Cal.App.3d 380, 242 Cal.Rptr. 1 is unavailing. In Jackson, the trial court apparently found "small sales" as a circumstance in mitigation where the defendant pleaded guilty to sale of two bindles of powder for $15 each and the powder containing heroin weighed "a mere .03 gram." (196 Cal.App.3d at p. 391, 242 Cal.Rptr. 1.) The court stated that although "small sales" was not one of the circumstances in mitigation listed in California Rules of Court, rule 423, the list is not exclusive, and the "trial court was entitled to consider 'small sales' as a circumstance in mitigation and to give that circumstance the weight to which the trial court believed it was entitled." (196 Cal.App.3d at p. 391, 242 Cal.Rptr. 1.)
That the trial court in Jackson was held to have acted within its discretion in concluding the "small sales" there to be a mitigating factor, does not establish that the trial court in this case abused its discretion in impliedly concluding the "small sale" herein was not a mitigating factor. There is no evidence as to how much money defendant received for the .22 gram rock of cocaine, which admittedly is a greater amount than the .03 grams of powder in Jackson. Appellant has failed to demonstrate that the court abused its discretion in impliedly deeming the size of the rock of cocaine to be an insignificant mitigating factor.
The fact that appellant waived a jury, under the instant facts, does not necessarily indicate, as claimed by him, his purported "respect for and cooperation with the criminal justice system." The jury waiver pales in significance beside the facts of his...
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Cantu v. State
...Cir.1992) (disbarred attorney posed no Sixth Amendment problem where he was unaware of disbarment until after trial). People v. Johnson, 273 Cal.Rptr. 446 (Cal.App.1990) (no Sixth Amendment violation despite the fact that attorney had been suspended for committing upon a child a forcible le......
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Johnson, In re
...v. Willie Samuel JOHNSON, Appellant. No. S018109. Supreme Court of California, In Bank. Dec. 20, 1990. Prior Report: Cal.App., 273 Cal.Rptr. 446. Appellant's petition for review GRANTED as to Court of Appeal Case number The Director of Corrections is ordered to show cause before this court ......