Opinion
B158343.
7-8-2003
THE PEOPLE, Plaintiff and Respondent, v. PERRELL C. PATTON, Defendant and Appellant.
David L. Tucker, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Mary Sanchez and Myung J. Park, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Perrell C. Patton appeals from the judgment following his convictions for carjacking, attempted kidnapping for carjacking, evading police officers, and possession of cocaine. We affirm.
FACTS AND PROCEDURAL BACKGROUND
Audra Jackson went to a gas station to buy gas. After filling her tank but before she stepped back into her car, appellant approached her. Holding a pellet gun, he opened her cars front passenger door and ordered her to get in. Afraid, Jackson refused and instead backed away from her car and threw her purse and car keys at appellant. While appellant rummaged through her purse, Jackson sought help from a married couple standing nearby who offered her refuge in the cab of their pickup truck. After a few minutes, appellant drove away in Jacksons car. The couple then took Jackson home, from where she called the police.
The police took a description of appellant and within the hour spotted him driving Jacksons car. When appellant saw the police, he fled at high speed, driving more than 70 mph in a 35 mph zone while swerving in and out of traffic and running red lights. Eventually, he crashed into a telephone pole and police arrested him. While searching the car, they found three pieces of rock cocaine under the drivers seat.
A jury convicted appellant of carjacking with personal use of a pellet gun (Pen. Code, §§ 215, subd. (a), 12022, subd. (b)(2)), attempted kidnapping for carjacking (Pen. Code, §§ 664/209.5, subd. (a)), evading an officer (Veh. Code, § 2800.2, subd. (a)), and possession of cocaine base (Health & Saf. Code, § 11350, subd. (a)). In addition, the jury found appellant had suffered two prior convictions under the Three Strikes law for residential burglary and bank robbery. The court sentenced appellant to prison for 87 years to life. This appeal followed.
DISCUSSION
1. Sufficiency of the Evidence for Carjacking Related Offenses
Both carjacking and attempted kidnapping for carjacking involve taking a car from the owners (or other lawful possessors) "immediate presence." (People v. ONeil (1997) 56 Cal.App.4th 1126, 1131; CALJIC Nos. 9.46, 9.54.) Appellant notes that Jackson watched most of the carjacking unfold after she relinquished physical control of her car and retreated several yards to the nearby couples pickup truck. He further claims that she left the gas station before he drove away in her car. According to him, there was therefore insufficient evidence that he took the car while it was in Jacksons immediate presence.
Neither the law nor the record support appellant. A victims "immediate presence" includes objects which the victim observes and controls and, but for the carjackers use of force or fear, the victim could hold fast. (People v. Hayes (1990) 52 Cal.3d 577, 626-627, 276 Cal. Rptr. 874, 802 P.2d 376.) After retreating to the pick up, Jackson watched appellant rummage through her purse and get into her car. As only her fear of appellant stopped her from returning to her car, it remained in her immediate presence. (Id. at pp. 626-627 [immediate presence includes things victim observes]; see People v. Medina (1995) 39 Cal.App.4th 643, 648, 650 [carjacking victim 20 feet from car; victim need not be sitting in car].)
Moreover, appellant is mistaken in claiming Jackson did not see him drive her car away. Jackson testified she was in the pickup truck when she saw appellant start her cars engine. In addition, the wife of the Good Samaritan couple who helped Jackson testified she watched appellant drive away. The wifes testimony supports the inference that Jackson also saw appellant drive away. Appellant nevertheless urges an opposite inference by noting it was possible-and no one testified to the contrary-that the Good Samaritan husband and Jackson had already left for her home as the wife watched appellant drive away, meaning Jacksons car was not taken from her immediate presence because she was no longer at the gas station. We reject appellants inference as unreasonable, however, for it implies the husband left his wife stranded at the station with an armed hijacker. Absent explicit evidence that the husband did so, we find the only reasonable inference from the wifes testimony that she saw appellant drive away is that Jackson did, too. There was thus sufficient evidence, supported by a reasonable inference, that appellant took the car from Jacksons immediate presence.
2. Sufficiency of Evidence of Possession of Cocaine
Police arrested appellant with three pieces of cocaine base weighing a total of 0.03 grams, which a deputy sheriff testified was a usable amount. Despite the deputys testimony, appellant contends 0.03 grams is too little to be usable and therefore cannot support a conviction for possession of cocaine. In support, appellant cites People v. Leal (1966) 64 Cal.2d 504, 50 Cal. Rptr. 777, 413 P.2d 665 (Leal), which held that illegal possession of a drug requires that there be enough of the substance to have an effect if ingested.
Leal no longer accurately states the law because court decisions have limited it to cases where the amount of narcotic is a residue unusable for any purpose. Our Supreme Court explained, "the Leal usable-quantity rule prohibits conviction only when the substance possessed simply cannot be used, such as when it is a blackened residue or a useless trace." (People v. Rubacalba (1993) 6 Cal.4th 62, 66, 859 P.2d 708; see also People v. Karmelich (1979) 92 Cal. App. 3d 452, 456, 154 Cal. Rptr. 842 ["The decision in Leal must be limited to such cases, where only a residue unusable for any purpose, is found; . . ."].)
Instead of Leal, the correct test is whether there was a sufficient amount of the substance to alert the defendant that he possessed contraband. " It is not scientific measurement and detection which is the ultimate test of the known possession of a narcotic, but rather the awareness of the defendant of the presence of the narcotic. . . . The presence of the narcotic must be reflected in such form as reasonably imputes knowledge to the defendant. " (People v. Rubacalba, supra, 6 Cal.4th at p. 67, italics omitted.)
Here, appellant testified he tried to flee the police because he was trying to give himself time to get rid of the cocaine. Indeed, he explained he drove erratically during the pursuit because he had trouble steering while trying to pick the cocaine up from the car floor in an effort to dispose of it. There was thus sufficient evidence to permit a rational trier of fact to conclude appellant knew the material was cocaine. (People v. Michaels (2002) 28 Cal.4th 486, 515; People v. Johnson (1980) 26 Cal.3d 557, 576, 162 Cal. Rptr. 431, 606 P.2d 738.)
3. Sentence Not Unconstitutionally Cruel and Unusual
Before his current offenses, appellant had previously been convicted of residential burglary and bank robbery. Appellants current convictions were thus "third strikes" under the Three Strikes law (Pen. Code, §§ 1170.12, subds. (a)-(d); 667, subds. (b)-(i)). The trial court therefore sentenced appellant to prison for 87 years to life, consisting of a base term of 37 years to life, plus two consecutive terms of 25 years to life for evading an officer and possession of cocaine. Appellant does not challenge his base term. He contends, however, that an additional 50 years to life for what he characterizes as relatively minor offenses of evading police and possessing .03 grams of rock cocaine is unconstitutionally cruel and unusual punishment.
In Lockyer v. Andrade (2003) 155 L. Ed. 2d 144, 123 S. Ct. 1166 (Andrade), and Ewing v. California (2003) 155 L. Ed. 2d 108, 123 S. Ct. 1179 (Ewing), the United States Supreme Court foreclosed constitutional challenges to life sentences under the Three Strikes law for even relatively minor offenses. (Andrade, supra, at pp. 1169-1170, 1175; Ewing, supra, at pp. 1189-1190.) In Andrade, the defendant was sentenced to two consecutive 25 years to life terms for shoplifting less than $ 200 in videotapes. Shoplifting videotapes appears to be a less serious offense than appellants crimes here: it does not, for example, imperil public safety as does fleeing an officer, or endanger public welfare as in drug possession. Yet, the Andrade court found a 50 year to life sentence almost guaranteeing the 37 year old defendant would die in prison for shoplifting passed constitutional muster. (Accord Ewing, supra, at p. 1189, 1190 [25 years to life for stealing three golf clubs not cruel and unusual].) It follows that if 50 years to life for shoplifting is not unconstitutionally cruel and unusual, then 50 years to life for fleeing an officer and possession of cocaine is also not unconstitutional. Appellants contention thus fails.
DISPOSITION
The judgment is affirmed.
We concur: COOPER, P.J. and BOLAND, J.