Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. Ct.No. RIF148680, Michele D. Levine, Judge.
Nancy L. Tetreault, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon and Barry Carlton, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI J.
A jury found defendant and appellant Antoine Reed guilty of possession of cocaine (Health & Saf. Code, § 11350, subd. (a)). In a bifurcated proceeding, the trial court found true that defendant had suffered two prior serious and violent felony convictions (Pen. Code, §§ 667, subds. (c) & (e)(2)(A), 1170.12, subd. (c)(2)(A)) and four prior prison terms (Pen. Code, § 667.5, subd. (b)). As a result, defendant was sentenced to a total term of 29 years to life as follows: an indeterminate term of 25 years to life for the substantive offense plus one-year terms for each of the four prior prison terms.
On appeal, defendant contends (1) the trial court prejudicially erred by failing to sua sponte instruct the jury that its rejection of the entrapment defense had to be unanimous; (2) the trial court erred in failing to consider his eligibility for sentencing under Penal Code section 1210.1 (Proposition 36); and (3) the trial court abused its discretion when it denied his motion to dismiss one or more of his prior strike convictions. We reject these contentions and affirm the judgment.
All future statutory references are to the Penal Code unless otherwise stated.
I
FACTUAL BACKGROUND
Detective Brian Dodson of the Riverside Police Department assisted the West County Task Force with a sting operation whereby they took over the house of a known drug dealer following his arrest. Detective Dodson was asked to pose as the arrested drug dealer. The perimeter of the house was staffed with other undercover police officers and was equipped with audio and video equipment where the drug transactions occurred.
On February 11, 2009, Detective Dodson spent six to seven hours posing as a drug dealer. Two undercover officers acted as “spotters” at the front of the house and driveway. They would make eye contact with potential drug buyers and then “some type of gesture, ” such as “putting both hands in the air, raising their eyebrows, ” but “not actually saying, hey, come and buy dope, but, you know, I got what you need.” The spotters would then direct the potential buyers to Detective Dodson. After Detective Dodson made the drug sale, he would signal the other officers, who would arrest the buyers. Detective Dodson sold rock cocaine to 19 or 20 buyers. Defendant was one of these.
Defendant knew the occupant of the house as “Doc” and had previously bought rock cocaine from Doc. After an undercover officer had directed defendant to Detective Dodson, defendant approached the detective and asked, “What’s up?” Defendant then asked, “Is Doc and them here?” Detective Dodson replied in the negative and inquired, “So what can I do for you?” Defendant replied, “Well, give me a dub, ” meaning $20 worth of rock cocaine. Detective Dodson gave defendant a baggie containing about 0.4 grams of rock cocaine; in exchange, defendant gave the detective $20. Detective Dodson then signaled the other officers, who emerged from hiding and arrested defendant.
A videotape of the transaction was played for the jury, and a transcript of the transaction was also provided to the jury.
Defendant presented an entrapment defense. He claimed that he and Doc had been friends for about two years and that he did not go to Doc’s house to buy drugs that day. He asserted that a man with a beanie had motioned him to come over to Doc’s house and that he went because he wanted to know what had happened to Doc. It was when Officer Dodson asked him, “What’s up?” that he had decided to purchase drugs. Officer Dobson asked defendant what he wanted. Defendant stated that he wanted a “dub.” Officer Dobson then gave him the rock cocaine. As defendant neared his car, he saw several officers approaching him. At that point, he realized that he had been set up and tossed the baggie containing the rock cocaine behind him. Defendant maintained that he had no intention of buying cocaine that day. He explained that it was the officers’ act of waving him to the back of the house and Officer Dodson asking him “What’s up” that caused him to buy the drugs.
II
DISCUSSION
A. Instructional Error
Defendant’s defense was entrapment based on the fact that police agents had invited him into the backyard and Detective Dobson had asked him, “What’s up.” The trial court disagreed with defense counsel’s assessment that there had been any showing of entrapment but instructed the jury with the defense nonetheless.
“In California, the test for entrapment focuses on the police conduct and is objective. Entrapment is established if the law enforcement conduct is likely to induce a normally law-abidingperson to commit the offense. [Citation.] ‘[S]uch 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.’ [Citation.]” (People v. Watson (2000) 22 Cal.4th 220, 223, quoting People v. Barraza (1979) 23 Cal.3d 675, 690.)
“The Barraza court described two guiding 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.’ [Citation.]” (People v. Watson, supra, 22 Cal.4th at p. 223.) “... ‘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.’ [Citation.]” (Id. at p. 223.)
Entrapment is an affirmative defense on which a defendant has the burden of proof by a preponderance of the evidence. (People v. Valverde (1966) 246 Cal.App.2d 318, 325; People v. McIntyre (1990) 222 Cal.App.3d 229, 232.) In order for a defendant to triumph on this defense, all 12 jurors must unanimously believe there was entrapment. (McIntyre, at p. 232.)
Defendant contends the trial court’s instruction on the entrapment defense was incomplete because it failed to also sua sponte instruct the jury that its rejection of the entrapment defense had to be unanimous. We reject this contention.
Contrary to defendant’s assertion, the sua sponte instructional obligation does not extend to cases such as this. A trial court is obligated sua sponte to provide general principles of law that are closely and openly connected with the facts before the court and necessary for the jury’s understanding of the case. (People v. Wickersham (1982) 32 Cal.3d 307, 323, disapproved on other grounds in People v. Barton (1995) 12 Cal.4th 186, 200-201.) The instructions here satisfied that obligation by adequately describing the general principles of the entrapment defense. The trial court instructed the jury pursuant to Judicial Council of California Criminal Jury Instructions (CALCRIM) No. 3408 on the defense of entrapment. The court also instructed the jury with the unanimity instruction contain in CALCRIM No. 3550. Specifically, the court stated, “Do not reveal to me or anyone else how the vote stands on the questions of guilt or issues in this case, unless I ask you to do so. Your verdict must be unanimous. This means that to return a verdict, all of you must agree to it. Do not reach a decision by the flip of a coin or by any similar act.” Defendant does not complain that the instructions were erroneous, only that the court should have also given a special instruction that advised the jury “the defense of entrapment carried the same unanimity requirement as the charged crime.” However, where, as here, the instructions correctly state applicable principles of law, a defendant desiring further amplification must request such, and his failure to do so precludes him from complaining on appeal that the instructions were inadequate. (People v. Martinez (1978) 82 Cal.App.3d 1, 19.)
In any event, any error was harmless under either standard. (Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 17 L.Ed.2d 705] [harmless beyond a reasonable doubt]; People v. Watson (1956) 46 Cal.2d 818, 836 [more favorable outcome for defendant reasonably probable absent error].) In this case, there is no dispute on appeal that the jury properly found beyond a reasonable doubt that defendant possessed rock cocaine or that defendant purchased rock cocaine from an undercover officer. The only issue is whether defendant was entrapped by police agents in purchasing the drug. The primary evidence supporting defendant’s contention was his testimony that he succumbed to the temptation of buying the drug after officers’ waved him to the back of the house and Detective Dobson asked him, “What’s up?” Defendant’s testimony, however, was uncorroborated by any objective evidence. The People’s evidence was that defendant, after being invited into the yard, asked Detective Dodson, “What’s up?” and “Is Doc and them here?” Detective Dodson told defendant that Doc was not there, and asked him, “So what can I do for you?” Defendant thereafter replied, “Well, give me a dub.” Detective Dodson then produced some rock cocaine and defendant made the purchase. The People corroborated this evidence by introducing a videotape of the transaction. Defendant also essentially corroborated the events that transpired and agreed that Detective Dodson accurately recounted their conversation in his testimony. The conduct of the police, as described above, would not have induced a normally law-abiding person to buy drugs. There was no encouraging, harassing, enticing, or reliance on friendship or sympathy by police agents. Detective Dodson merely asked defendant, “So what can I do for you?”
Accordingly, based on our review of the entire record, even if the standard entrapment instruction requires an advisement that the entrapment defense can be rejected only by a unanimous vote, the failure to give such an instruction was harmless.
B. Proposition 36 Eligibility
Defendant contends that the trial court erred by finding he was ineligible for Proposition 36 probation. We disagree.
Proposition 36, entitled the “Substance Abuse and Crime Prevention Act of 2000, ” is intended to divert nonviolent drug offenders convicted of simple drug possession and drug use from incarceration into community-based substance abuse programs. (See People v. Canty (2004) 32 Cal.4th 1266, 1280-1281; Pen. Code, § 1210.1.) Proposition 36 requires a trial court to sentence a defendant convicted of nonviolent drug offenses to probation, provided there are no disqualifying conditions. The provisions of the proposition are codified in Penal Code sections 1210, 1210.1, and 3063. 1, and Division 10.8, commencing with section 11999.4 of the Health and Safety Code. By its terms, Penal Code section 1210.1, subdivision (a) requires the court to grant probation with a drug treatment condition to any person who is convicted of a nonviolent drug possession offense, unless the person is ineligible under subdivision (b). Penal Code section 1210, subdivision (a) defines a “nonviolent drug possession offense” as the unlawful possession, use, or transportation for personal use of any controlled substance identified in Health and Safety Code sections 11054 through 11058 or the offense of being under the influence of a controlled substance under Health and Safety Code section 11550.
Persons ineligible for drug treatment include: “(1) Any defendant who previously has been convicted of one or more violent or serious felonies as defined in subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7, respectively, unless the nonviolent drug possession offense occurred after a period of five years in which the defendant remained free of both prison custody and the commission of an offense that results in a felony conviction other than a nonviolent drug possession offense, or a misdemeanor conviction involving physical injury or the threat of physical injury to another person. [¶] (2) Any defendant who, in addition to one or more nonviolent drug possession offenses, has been convicted in the same proceeding of a misdemeanor not related to the use of drugs or any felony.” (§ 1210.1, subd. (b)(1) & (2).)
Proposition 36 contains other exceptions to eligibility for otherwise eligible defendants, summarized as follows: “3) firearm involvement; 4) refusal of drug treatment; and 5) two prior failures in Proposition 36 treatment programs and proof of unamenability to drug treatment. (§ 1210.1, subd. (b).)” (People v. Esparza (2003) 107 Cal.App.4th 691, 696.)
Defendant argues that “the [trial] court was obligated to consider [his] eligibility under Proposition 36, ” because he was convicted of a nonviolent drug offense and “[t]he five-year wash-out provision of section 1210.1 made this exception inapplicable.” He claims that “this exemption applies only if the defendant’s prior strike offense occurred within five years from the time of the defendant’s present conviction for a nonviolent drug offense or his release from custody on the strike offense was within five years of the current conviction.” Defendant is mistaken in his interpretation of subdivision (b)(1) of section 1210.1.
Courts of Appeal have consistently held that eligibility under the statute requires a five year prison-free (washout) period immediately preceding the current nonviolent drug possession offense. (People v. Superior Court (Martinez) (2002) 104 Cal.App.4th 692, 699-700; People v. Superior Court (Henkel) (2002) 98 Cal.App.4th 78, 82-83; People v. Superior Court (Turner) (2002) 97 Cal.App.4th 1222, 1230-1231; People v. Superior Court (Jefferson) (2002) 97 Cal.App.4th 530, 536 [Fourth Dist., Div. Two].)
“Defendant’s interpretation is also unreasonable as a matter of policy. It makes sense to offer drug treatment to nonviolent drug offenders. It also makes sense to offer drug treatment to nonviolent drug offenders who have committed prior strikes but who have not committed during the five years before the nonviolent drug offense any felonies that are not nonviolent drug possession offenses or misdemeanors involving physical injury or threat of physical injury to another. Such persons are more likely to be amenable to rehabilitative efforts and more likely to benefit from drug treatment. By contrast, a person who has committed a prior strike felony and who has also committed within five years of the nonviolent drug offense felonies that are not nonviolent drug possession offenses or committed misdemeanors involving physical injury or the threat of physical injury, is not as good a candidate for treatment under Proposition 36. The records of such persons are already hardened by virtue of their prior strike conviction. When such persons also have a recent history of felonies that are not nonviolent drug possession offenses and/or a recent history of misdemeanors involving physical injury or threat of physical injury, there is less reason to believe that they are likely to be amenable to drug treatment or that the voters intended them to have the benefits of Proposition 36 probation and drug treatment. [Citations.] It would seem illogical to conclude that such persons should be eligible for drug treatment simply because at some point in their past, perhaps 20 or 25 years earlier, they had for five years remained out of trouble.
“Defendant’s interpretation also does not mesh with a somewhat similar provision under section 1000. Section 1000 excludes from drug treatment a defendant who has a prior felony conviction unless ‘[t]he defendant has no prior felony conviction within five years prior to the alleged commission of the charged offense.’ (§ 1000, subd. (a)(6).) Section 1000 serves a function similar to Proposition 36 because it requires the court to exclude from eligibility a defendant who has recently engaged in felonious behavior. Given that section 1000 looks to the defendant’s most recent record in determining whether the defendant qualifies for treatment, it makes sense to believe that Proposition 36 was similarly meant to look to the strike[-]prior defendant’s most recent past in determining whether that strike[-]prior defendant was eligible for treatment.” (People v. Superior Court (Martinez), supra, 104 Cal.App.4th at pp. 700-701.)
The record here indicates that in September 1994, defendant was charged with possession of cocaine for sale (Health & Saf. Code, § 11351.5), possession of cocaine with a handgun (Health & Saf. Code, § 11370.1, subd. (a)), and possession of a firearm by a felon (§ 12021, subd. (a)(1)). Defendant was ultimately convicted of possession of cocaine for sale (Health & Saf. Code, § 11351.5) and possession of cocaine with a handgun (Health & Saf. Code, § 11370.1, subd. (a)) and was sentenced in June 1997 to 14 years in state prison. He was paroled on November 30, 2005. Defendant committed the present offense on February 11, 2009, well within five years of his parole date. In other words, we find that defendant was not free of felony convictions during the five years immediately before his commission in 2009 of the nonviolent drug possession offense.
We note that defendant waived his right to a presentence probation report.
Accordingly, under section 1210.1, subdivision (b)(1), defendant is not eligible for probation and treatment under Proposition 36.
C. Denial of Motion to Dismiss Prior Strike Convictions
Defendant contends the trial court abused its discretion by refusing to strike his prior serious and violent felony convictions pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). We again disagree.
In Romero, the Supreme Court held that a trial court has discretion to dismiss three-strikes prior felony conviction allegations under section 1385. (Romero, supra, 13 Cal.4th at pp. 529-530.) The touchstone of the analysis is “‘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.’ [Citation.]” (People v. Carmony (2004) 33 Cal.4th 367, 377.)
“[A] trial court’s refusal or failure to dismiss or strike a prior conviction allegation under section 1385 is subject to review for abuse of discretion.” (People v. Carmony, supra, 33 Cal.4th at p. 375.) “[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.)
“Because the circumstances must be ‘extraordinary... by which a career criminal can be deemed to fall outside the spirit of the very scheme within which he squarely falls once he commits a strike as part of a long and continuous criminal record, the continuation of which the law was meant to attack’ [citation], the circumstances where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme must be even more extraordinary.” (People v. Carmony, supra, 33 Cal.4th at p. 378.)
We cannot conclude the trial court abused its discretion in declining to strike one or both of defendant’s prior strike convictions. The relevant considerations supported the trial court’s ruling, and there is nothing in the record to show that the court declined to exercise its discretion on improper reasons or that it failed to consider and balance the relevant factors, including defendant’s personal and criminal background. In fact, the record clearly shows the court was aware of its discretion, aware of the applicable factors a court must consider in dismissing a prior strike, and appropriately considered and balanced the factors outlined above.
Defendant has manifested a persistent inability to conform his conduct to the requirements of the law. His past criminal history is extensive and serious. As recognized by the trial court, although defendant’s current crime was nonviolent and his priors for robbery occurred in 1976 and 1980, defendant does have a serious prior record of criminal behavior. Defendant was in and out of prison continually from 1983 to 2005. It appears that the only year during that time period for which defendant appears not to have been in prison custody was 1995. Nonetheless, in 1995, defendant appears to have been subject to a parole hold. Defendant’s criminal record includes numerous drug-related offenses, several robberies, several firearm possession offenses, and poor performances on parole.
The court here could not overlook the fact that defendant continued to commit criminal offenses and violate the terms and conditions of his parole even after repeatedly serving time in prison. His conduct as a whole was a strong indication of his unwillingness or inability to comply with the law. His disregard for the law is evidenced by his continual parole violations and criminal convictions. It is clear from the record that prior rehabilitative efforts have been unsuccessful. Indeed, defendant’s prospects for the future look no better than the past, in light of defendant’s record of prior offense and reoffense and apparent substance abuse. All of these factors were relevant to the trial court’s decision under Romero; there is no indication from the record here that the court failed to consider the relevant factors or that it failed to properly balance the relevant factors or that it abused its discretion in determining that, as a flagrant recidivist, defendant was not outside the spirit of the three strikes law. (People v. Carmony, supra, 33 Cal.4th at pp. 375, 377-378.)
Although a court may consider drug addiction as a mitigating factor (People v. Garcia (1999) 20 Cal.4th 490, 503), it may also consider a drug-addicted defendant’s failure to address his or her addiction over a period of many years as a factor in the defendant’s prospects for re-offending if the court were to strike a prior strike and impose a shorter sentence. (People v. Williams (1998) 17 Cal.4th 148, 161, 163.) Defendant had over 30 years since his last conviction for the prior strike offense to attempt to get his drug habit under control.
A trial court abuses its discretion in striking a prior conviction if it is “‘guided solely by a personal antipathy for the effect that the three strikes law would have on [a] defendant, ’ while ignoring ‘defendant’s background, ’ ‘the nature of his present offenses, ’ and other ‘individualized considerations.’ [Citation.]” (Romero, supra, 13 Cal.4th at p. 531.) However, that is precisely what defendant would have this court do.
Defendant appears to be “an exemplar of the ‘revolving door’ career criminal to whom the Three Strikes law is addressed.” (People v. Stone (1999) 75 Cal.App.4th 707, 717.) Thus, given defendant’s continuous criminal history, his numerous parole violations, the seriousness of the past offenses, and his seemingly dim prospects for rehabilitation and lack of meaningful crime-free periods, we cannot say that the trial court abused its discretion when it declined to dismiss one or more of defendant’s prior strike convictions.
III
DISPOSITION
The judgment is affirmed.
We concur: RAMIREZ P.J., CODRINGTON J.
Judge of the Riverside Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.